Citation Nr: 21063465
Decision Date: 10/14/21	Archive Date: 10/14/21

DOCKET NO. 13-31 449A
DATE: October 14, 2021

ORDERS

An initial rating in excess of 10 percent for patellofemoral syndrome of the right knee is denied.

An initial compensable rating for limitation of extension associated with right knee patellofemoral syndrome is denied.

An initial rating in excess of 10 percent for lateral instability associated with right knee patellofemoral syndrome is denied.

FINDINGS OF FACT

1. For the entire period on appeal, the preponderance of the evidence indicates arthritis with pain but without a limitation of motion of the right knee warranting a compensable evaluation. 

2. Range of motion testing of the right knee has documented, at its worst, extension limited to 5 degrees.

3. The preponderance of the evidence documents "mild" right knee instability.

4. The preponderance of the evidence does not reflect that the Veteran was prescribed a knee brace and/ or an assistive device for ambulation by a medical provider.

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 10 percent for right knee patellofemoral syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010-5260.

2. The criteria for an initial compensable rating for limitation of extension of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5261.

3. The criteria for an initial rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5010 - 5257. 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1993 to July 1994.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 

During the pendency of the appeal, by way of an August 2013 rating decision, the Veteran was granted service connection for right knee instability and a 10 percent evaluation was assigned effective March 22, 2011. Thereafter, by way of a May 2021 rating decision, the Veteran's claim of entitlement for service connection for right knee patellofemoral syndrome with limitation of extension was granted and a noncompensable evaluation was assigned effective May 14, 2021.

This matter was previously remanded for additional development in a March 2021 Board decision. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall).

Increased Rating Claims

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § § 4.7.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § § 4.10.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § § 4.40.

In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall - Norman v. McDonald, 28 Vet. App. 346 (2016).

1. Entitlement to an initial rating in excess of 10 percent for patellofemoral syndrome of the right knee.

Legal Criteria 

The Veteran's right knee disability was granted a 10 percent disability rating pursuant to Diagnostic Code 5010-5257. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. 38 C.F.R. § 4.27. Use of the second diagnostic code helps provide further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id. Additionally, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated. Id. 

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 

If a law or regulation changes during a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied.

Prior to the regulatory change, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Degenerative arthritis when established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Code 5003. A 20 percent rating is applied where there is X-ray evidence of arthritic changes involving two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, DC 5003, 5010.

The appropriate diagnostic codes for rating limitation of motion of the knee are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a.

Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. Id. 

VA's General Counsel has held that separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under DCs 5260 and 5261. VAOPGCPREC 9-2004.

Diagnostic Code 5257 contemplates "other impairment" of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate, or slight, disability ratings of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. 

According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Marked" means having a distinctive or emphasized character.

VA's General Counsel stated that compensating a claimant for separate functional impairment under Diagnostic Codes 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 and VAOPGCPREC 9-98.

A separate compensable rating may also be assigned for meniscal pathology under DC 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017).

As of February 7, 2021, under the amended criteria, DC 5010 assigns a disability rating pursuant to limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25.

Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, DC 5260 and 5261 were not changed. However, the Board notes that DC 5257 covering subluxation and instability did change.

As of February 7, 2021, under the amended criteria, DC 5257 distinguishes between recurrent subluxation or instability and patellar instability. Under the rating criteria for recurrent subluxation or instability, a 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation; a 20 percent rating is warranted where there is either a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation or b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), or a walker) or bracing for ambulation; and a 10 percent rating is warranted where there is a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.

For patellar instability, a 30 percent rating is warranted where the Veteran has a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or walker; a 20 percent rating is warranted where the Veteran has a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker; and a 10 percent rating is warranted where the Veteran has a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. 

Factual Background

During an August 2010 VA Joints examination, the Veteran reported right knee pain with an onset during active duty, that was exacerbated when sitting or standing for long periods of time. He denied flareups noting that his knee pain was fairly constant. The diagnosis assigned was right knee patellofemoral syndrome. The Veteran indicated that his right knee disability did not impact activities of daily living, which he was able to accomplish. Physical examination revealed a normal gait. Evaluation of the right knee revealed positive patellofemoral symptoms with pain from 90 degrees to 140 degrees of flexion and 140 degrees to 90 degrees of extension. The Veteran also had minor pain when extending from 90 degrees of back to neutral. There was no knee instability, no knee swelling, and the Lachman's test was negative. The Veteran had a positive patellar grind test. There were no additional limitations following repetitive use other than increased pain. There was no effect of incoordination, fatigue, weakness, or lack of endurance of his knee function.

In March 2011, the Veteran underwent right knee imaging for pain and patellofemoral syndrome after falling. Lateral and patellofemoral compartments of the right knee appeared normal radiographically. The finding was minimal medial compartment osteoarthritis.

In March 2011, the Veteran was again afforded a VA Joints examination. The condition diagnosed was right knee patellofemoral syndrome with degenerative joint disease and mild varus/valgus of the medial and collateral ligaments. Initial range of motion measurements of the right knee revealed flexion from zero to 130 degrees and extension 0 degrees. Range of motion testing results after repeated use revealed flexion from zero to 125 degrees and extension to 0 degrees. The Veteran reported worsening symptoms which included pain, instability, weakness, giving way, stiffness, swelling, fatigability, and lack of endurance. He endorsed symptoms of frequent knee flareups occurring in the course of normal activities. Severity was a level 6 on a scale of 1 to 10. The Veteran indicated that he suffered from inflammatory arthritis and after use or activities his knees and feet chronically fatigued quickly. 

The Veteran was once again examined by VA in July 2011. The condition diagnosed was right knee patellofemoral syndrome. The Veteran reported worsening symptoms which included pain, instability, weakness, giving way, stiffness, swelling, fatigability, locking, and lack of endurance. The Veteran required medication management including narcotic pain relief for his right knee disability. He endorsed severe flareups occurring daily as the result of any standing or walking. The Veteran noted that nothing alleviated the flareups symptoms which included pain, knee popping and grinding and swelling which restricted ambulation. The Veteran indicated that he used a cane for assistance with walking due to a spine condition. Initial range of motion measurements of the right knee revealed flexion from zero to 130 degrees and extension 0 degrees. Range of motion testing results after repeated use revealed flexion from zero to 130 degrees and extension to 0 degrees.

In an August 2011 Sherman VA Community Based Outpatient Center (CBOC) primary care note, the Veteran's physician found on examination that the Veteran's gait was normal, there was no joint swelling and found that the range of motion for joints was normal.

In a January 2013 VA General Medical Examination, the examiner noted a diagnosis of right knee patellofemoral pain syndrome. No knee abnormalities were specifically identified.

The Veteran's right knee disability was reevaluated by VA in April 2015. The Veteran reported right knee pain, instability, swelling, and frequent grinding, popping, and locking. He endorsed the use of a neoprene knee sleeve. Initial range of motion measurements of the right knee revealed flexion from zero to 110 degrees and extension from 0 to 110 degrees. The examiner noted that the abnormal ranges of motion contribute to functional loss. There was no additional loss of range of motion after repetitive use testing. The examiner found evidence of less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, disturbance of locomotion and interference with sitting and standing. There was no evidence of ankylosis, instability, or recurrent subluxation. The examiner would not estimate any additional loss of range of motion with flareups indicating that it would be speculative.

The Veteran underwent a VA Knee and Lower Leg Conditions examination in November 2019. The Veteran reported pain in his right knee but denied flare-ups and functional loss or impairment of the joint or extremity, to include after repeated use over time. Range of motion testing for the right knee revealed flexion from 0 degrees to 90 degrees and extension from 90 degrees to 0 degrees. Pain was noted with flexion and extension, but the examiner did not find evidence of localized tenderness or pain on palpitation, with weight bearing, and determined that the pain did not result in functional loss. No additional loss of function or range of motion was noted on repetitive-use testing. The examiner noted that the Veteran was not being examined immediately after repetitive use over time but stated that pain limited the Veteran's functional ability with repeated use over time. He described the loss in terms of range of motion, which reflected flexion from 0 degrees to 90 degrees and extension from 90 degrees to 0 degrees. The examiner did not note any additional contributing factors of disability. No ankylosis was found. Additionally, muscle strength and stability testing were noted as normal. No history of recurrent subluxation, lateral instability, recurrent effusion, patellar dislocation, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment was found. Further, the Veteran was not found to have a meniscal condition. The examiner stated that the Veteran did not use assistive devices. Regarding Correia, the Veteran was tested for active and passive motion and for pain was tested with and without weight bearing. The examiner found no objective evidence of pain on non-weight-bearing, that passive and active ranges of motion were the same, and that while there was objective evidence of pain present on passive range of motion testing, the range of motion itself did not change. 

The Veteran underwent an additional VA Knee and Lower Leg Conditions examination in May 2021. The diagnoses assigned were right knee instability and right patellofemoral syndrome. The Veteran reported pain, including throbbing arthritic pain and decreased range of motion in his right knee but denied flare-ups. He indicated that he experienced functional loss as a result of limited range of motion of his right knee. Both active and passive range of motion testing for the right knee revealed flexion to 85 degrees and extension to 5 degrees. The examiner did not find evidence of localized tenderness or pain on palpitation, or with weight bearing. Crepitus was present. Repetitive-use testing for the right knee revealed flexion to 80 degrees and extension to 5 degrees. The examiner indicated that pain and fatigability limited the Veteran's functional ability with repeated use over time. No ankylosis was found. Additionally, muscle strength and stability testing were noted as normal. No history of recurrent subluxation, lateral instability, recurrent effusion, patellar dislocation, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment was found. Further, the Veteran was not diagnosed with a meniscal condition. The examiner stated that the Veteran did not require a prescription for assistive devices. 

At the outset, the Board emphasizes that separate ratings may be assigned for limited knee motion in flexion (under DC 5260) and in extension (under DC 5261), as well as for instability (under DC 5257). VA Gen. Counsel. Prec. 23-97 (July 1, 1997). A separate compensable rating may also be assigned for meniscal pathology under DC 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017).

The Veteran contends his service-connected right knee disability warrants an initial disability rating greater than 10 percent. The Veteran's right knee disability diagnosed as right patellofemoral syndrome was initially assigned a 10 percent evaluation under Diagnostic Code (DC) 5010-5260 based on functional loss due to painful and limited motion from arthritis effective April 21, 2010 the date of the Veteran's reopened claim. Additionally, during the course of this appeal the Veteran was also granted service connection for right knee instability associated with right patellofemoral syndrome and pursuant to DC 5010-5257 and was assigned a 10 percent rating effective March 22, 2011. Lastly, effective May 14, 2021, the Veteran was assigned a noncompensable rating pursuant to DC 5261 for limitation of extension associated with right knee patellofemoral syndrome.

The Board has closely reviewed the Veteran's claims file. Range of motion testing of the Veteran's right knee during the appeals period documented, at the worst, flexion to 80 degrees with repeated use over time and extension to 5 degrees. Therefore, the Board finds that pursuant to DC 5010-5260 an initial rating in excess of 10 percent for right patellofemoral syndrome is not warranted. Specifically, range of motion testing did not exhibit limitation of flexion to 30 degrees as required under the criteria of DC 5260 for a rating of 20 percent. 

A compensable rating pursuant to DC 5261 is also not warranted. The Veteran was assigned a noncompensable rating effective May 14, 2021, the date of the VA examination which first documented the Veteran's limitation of right knee extension to 5 degrees. Specifically, range of motion testing did not exhibit limitation of extension to 10 degrees as required under the criteria of DC 5261 for a rating of 10 percent at any point during the appeal. As noted above, DCs 5260 and 5261 were not changed by the new regulations effective on February 7, 2021.

Under the regulations in effect prior to February 7, 2021, the Board finds that an initial rating in excess of 10 percent for right knee instability associated with right patellofemoral syndrome is not warranted. Specifically, March 22, 2011 was the date of the first examination where the Veteran endorsed symptoms of right knee instability including pain, weakness, and fatigability. He endorsed the use of a neoprene knee sleeve and the occasional use of a cane. The Veteran is competent and credible to report symptoms of instability. However, the Board notes that throughout the appeals period the Veteran had no reduction in muscle strength and no muscle atrophy was noted. Notably, no evidence of recurrent lateral instability was documented in VA examinations after March 2011. For these reasons, the Board finds that the medical evidence of the Veteran's right knee disability more nearly approximates slight instability and not moderate instability. Accordingly, under the regulations in effect prior to February 7, 2021, the Board finds an initial rating in excess of 10 percent for right knee lateral instability is not warranted.

The Board further finds pursuant to DC 5257 under the new regulations in effect post February 7, 2021, a rating in excess of 10 percent is also not warranted. In that regard, while the evidence of record suggests persistent mild knee instability, the use of a knee brace and/or an assistive device was not prescribed by the Veteran's health care provider. Accordingly, the criteria for the next higher rating of 20 percent have not been met at any point during the appeals period.

The Board has considered the applicability of other rating criteria for evaluating the musculoskeletal disabilities of the right knee under 38 C.F.R. § 4.71a. However, there is no basis for assigning a higher or separate compensable rating under DCs 5256, 5258, 5259 5262, or 5263, because there is simply no evidence of ankylosis of the right knee, dislocated or removed semilunar cartilage, impairment of the tibia or fibula or genu recurvatum.

Finally, the Board notes that a separate rating may not be assigned under Diagnostic Codes 5003 for painful motion with x-ray evidence of arthritis and DC 5260 or 5261, as to do so would constitute pyramiding as these diagnostic codes rated based on limitation of motion. Further, the rating criteria under diagnostic code 5003 specifically directs that degenerative arthritis be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved, here, Diagnostic Codes 5260 and 5261 for limitation of flexion and extension of the knee. See 38 C.F.R. § 4.71a.

 

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Alexander

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.