Citation Nr: 21065425 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 15-10 331A DATE: October 26, 2021 ORDER Entitlement to a rating in excess of 10 percent for a left knee patellofemoral dysfunction (disability) is denied. Entitlement to a rating in excess of 10 percent for a right knee patellofemoral dysfunction (disability) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. During the entire period on appeal, the Veteran's left knee disability manifested by limitation of motion and pain; flexion has not been limited to less than 90 degrees and no limitation of extension was shown; recurrent subluxation, lateral instability, ankylosis or a dislocation have not been diagnosed. 2. During the entire period on appeal, the Veteran's right knee disability manifested by limitation of motion and pain; flexion has not been limited to less than 90 degrees and extension has not been limited to more than 3 degrees; recurrent subluxation, lateral instability, ankylosis or a dislocation have not been diagnosed. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the Veteran's left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for a rating in excess of 10 percent for the Veteran's right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1979 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in January 2019 and April 2021 to the agency of original jurisdiction (AOJ) for further development. The Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to a TDIU has been raised as part and parcel of bilateral knee disability increased rating claim on this appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). "Although pain may cause a functional loss, pain itself does not constitute functional loss." Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (emphasis in original). Painful motion is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion. 38 C.F.R. § 4.59; Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board must also consider whether VA examiners have elicited information concerning the "severity, frequency, duration, or functional loss manifestations" of such flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The United States Court of Appeals for Veterans Claims (Court) also has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 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. 76453 (Nov. 30, 2020) (to be codified as 38 C.F.R. § 4.71a). Prior to February 7, 2021, the Board will consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021, the Board will consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. 1. Entitlement to a rating in excess of 10 percent for a left knee disability 2. Entitlement to a rating in excess of 10 percent for a right knee disability The Veteran's left knee and right knee disabilities are currently rated 10 percent disabling under DC 5260. Generally, disabilities of the knee are rated pursuant to 38 C.F.R. § 4.71a, DCs 5256-5263. Regarding the recent regulatory change, DC 5257 was the only DC revised that is applicable to this case. DC 5256 provides evaluations for ankylosis of the knee. DC 5257 provides evaluations for recurrent subluxation and lateral instability. Prior to the regulatory change, a 10 percent rating was warranted for slight instability, a 20 percent rating was warranted awarded for moderate instability, and a 30 percent rating was warranted for severe instability. The words "slight," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities; rather than applying a mechanical formula, the Board must evaluate all of the evidence so that its decisions are equitable and just. See 38 C.F.R. § 4.6. Under the revised criteria, DC 5257 contains two sections for rating other impairment of the knee. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. While "persistent" is not defined in the VA Schedule for Rating Disabilities, according to Merriam-Webster's Dictionary, "persistent" is defined as "continuing or inclined to persist in a course" with "continuing" defined as "constant" and "persist" defined as "to continue to exist." Merriam-Webster's Dictionary (www.merriam-webster.com/dictionary, accessed March 15, 2021). Under the revised criteria, a 10 percent rating is assigned for 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 or bracing for ambulation. A 20 percent rating is assigned with 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 for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Regarding patellar instability, 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 warrants a 10 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. 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 a walker warrants a 30 percent rating, which is the highest allowable rating for patellar instability. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5257, Note (1)). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id., Note (2). DC 5258 provides a 20 percent rating for dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 provides a 10 percent rating for symptomatic removal of semilunar cartilage. DCs 5260 and 5261 provide the rating criteria for limitation of knee motion. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71a Plate II. DC 5260 provides that limitation of knee flexion to 60 degrees is rated as noncompensable; limitation of knee flexion to 45 degrees is rated as 10 percent disabling; and limitation of knee flexion to 30 degrees is rated as 20 percent disabling. Limitation of flexion to 15 degrees is rated as 30 percent disabling. DC 5261 provides that limitation of knee extension to 5 degrees is rated as noncompensable; limitation of knee extension to 10 degrees is rated as 10 percent disabling; limitation of knee extension to 15 degrees is rated as 20 percent disabling; limitation of knee extension to 20 degrees is rated as 30 percent disabling; limitation of knee extension to 30 degrees is rated as 40 percent disabling; and limitation of knee extension to 45 degrees is rated as 50 percent disabling. DC 5262 provides evaluations for impairment of the tibia and fibula. DC 5263 provides a 10 percent rating for acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing. VA's General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, DC 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, DC 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if an appellant does not meet the criteria for a noncompensable rating under either DC 5260 or DC 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Code 5257), a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). VA's General Counsel has also stated that separate ratings under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Turning to the evidence of record, the Veteran initially underwent a VA examination for his bilateral knee disability in November 2011. The Veteran reported experiencing pain, stiffness, and weakness in his knees. He also reported decreased range of motion and daily locking episodes. The Veteran reported experiencing weekly flare-ups, severe in nature and lasting for hours. Prolonged standing was noted as a precipitating factor. On examination, right knee flexion was limited to 140 degrees with objective evidence of pain. No limitation of right knee extension was noted. Left knee flexion was limited to 130 degrees with objective evidence of pain. No limitation of left knee extension was noted. Objective evidence of pain following repetitive motion testing was noted. No bilateral knee instability was noted. There were no additional limitations to range of motion after three repetitions. No joint ankylosis was noted. Radiographic study showed minimal bilateral knee degenerative osteoarthritis. Subsequently, the Veteran underwent a general medical VA examination in March 2013. At that time, the Veteran reported bilateral knee pain, locking and instability. Bilateral knee muscle strength test results were within normal limits. No range of motion measurements were recorded. Pursuant to January 2019 Board's remand directives, the Veteran underwent a VA examination for his knees in October 2019. At that time, the Veteran reported pain in both knees rated at 7 to 8 out of 10 in severity. He also reported limitations with prolonged walking, standing, squatting, and climbing stairs. The Veteran received bilateral knee injections, which produced temporary improvement. He also reported using knee braces bilaterally. The Veteran denied experiencing flare-ups. On examination, the initial range of motion measurements were within normal limits bilaterally. Pain not resulting in functional loss was noted. No additional functional loss or loss in range of motion after three repetitions was noted bilaterally. The examiner noted that bilateral knee pain significantly limits the Veteran's functional ability with repeated use over time and results in limitation of range of motion to 135 degrees on flexion and normal extension bilaterally. Range of motion measurements with active and passive movements, weight-bearing and nonweight-bearing were unchanged. Muscle strength test results were within normal limits. No muscle atrophy or ankylosis was noted. Knee joint stability test results were within normal limits bilaterally. A review of magnetic resonance imaging (MRI) showed bilateral knee meniscus tear and right knee subluxation. Constant use of knee braces bilaterally was noted. Bilateral knee arthritis was also noted. The examiner noted that the Veteran's bilateral knee disability results in functional limitations due to inability to walk more than 30 minutes, stand in one position more than 15 minutes, squat, climb stairs, or run. Pursuant to April 2021 Board's remand directives, the Veteran underwent another VA examination for his knees in June 2021. At that time, the Veteran reported receiving steroid and gel injections in both knees. He reported hearing "crunching" in his knees when climbing stairs and using pain medication to alleviate his symptoms. The Veteran also reported experiencing flare-ups, including chronic pain and bilateral knee swellings three times a week. On examination, the recorded range of motion measurements for the right knee were flexion limited to 90 degrees and extension limited to 3 degrees. Left knee flexion was limited to 90 degrees with no limitation on extension. Passive range of motion was same as active bilaterally. No additional functional loss or loss of range of motion after three repetitions was noted. Pain, fatigability and lack of endurance was noted with repeated use over time. There was evidence of pain on weight-bearing, nonweight-bearing, active, and passive motion, causing functional loss. The examiner noted that pain, fatigability and lack of endurance cause functional loss during flare-ups but noted no additional loss in range of motion. Other factors noted as contributing to disability were as follows: interference with sitting, interference with standing, swelling, disturbance of locomotion, less movement than normal. No muscle atrophy or ankylosis in either knee was noted. The examiner noted no recurrent subluxation, persistent instability, or ligament tear. Use of prescription braces bilaterally was noted. No other conditions or surgeries were noted. The Board is cognizant that all the examinations during the appeal period may not include all necessary findings as required by Correia and Sharp. See, supra. However, the examinations together accurately and sympathetically reveal the Veteran's functional limitations. The Board acknowledges contentions of the Veteran's representative, arguing that a higher rating for the Veteran's bilateral knee disability is warranted. See August 2021 Appellant's Post-Remand Brief. However, the evidence during the entire period on appeal reflects that the Veteran's range of motion has at no point been limited to the degree needed for the already assigned 10 percent rating. The Board has additionally reviewed extensive VA treatment records throughout the period on appeal. Initially, the Board notes that the Veteran's limitation of flexion of either knee does not warrant a compensable rating under DC 5260. As such, a separate rating under DC 5260 is not warranted for his left or right knee. Second, the Veteran does not meet the schedular criteria for a higher rating for his left or right knee under DC 5261. The Veteran's extension has been limited to at most 3 degrees in the right knee, which does not warrant a rating in excess of 10 percent. The Board has also considered the Veteran's reported impairment of function, such as pain and additional limitations of motion due to pain. See VA treatment records. Nonetheless, even considering additional limitation of motion or function of the left and right knee due to pain or other symptoms such as weakness, fatigability, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, supra), the evidence does not show that the Veteran's left or right knee disability has more nearly approximated the criteria for any higher rating at any time during the period on appeal. Additionally, regarding the Veteran's complaints of pain, the mere presence of pain does not, by itself, constitute functional loss. Rather, the pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance. See Mitchell, supra. Put another way, while the Veteran has complained of pain, these complaints are adequately contemplated in the 10 percent rating he currently receives. As noted, the evidence does not support the assignment of higher ratings under DC 5260 or 5261 for his left or right knee. The Board points out that without complaints of pain and flareups, there would be no basis for the current 10 percent rating for the Veteran's left or right knee disability. In this regard, it is important to note that the range of motion testing does not meet the requirements of a 10 percent evaluation for either flexion or extension, let alone a higher evaluation. The Board has also considered whether a separate rating under the former criteria for DC 5257 is warranted. The Board acknowledges the Veteran's subjective complaints of experiencing instability. However, the objective findings do not show that separate ratings for recurrent subluxation or lateral instability are warranted. VA examiners consistently noted no joint instability bilaterally. See VA examination reports in October 2019 and June 2021. As such, the Board finds that the objective evaluations and tests are of more probative value than the Veteran's subjective complaints. The Board also finds that a separate rating is not warranted under the revised criteria for DC 5257. Since February 7, 2021, knee joint stability test results were within normal limits bilaterally. The Board acknowledges the Veteran's use of knee braces. Nonetheless, the Board points out that the Veteran's assistive devices have been used for ambulation and pain rather than instability. See June 2021 VA examination. Moreover, as noted, the medical reports consistently show that joint stability tests (anterior, posterior, medial, and lateral) have remained normal. Recurrent subluxation has not been demonstrated either. Additionally, a rating is also not warranted for patellar instability as the evidence does not show surgical repair involving the patellofemoral complex. The evidence also does not reflect that the Veteran has dislocation of the right or left knee cartilage or semilunar, which would provide the basis for a rating under DC 5258. VA examination reports consistently show that the Veteran has not had any knee dislocations. See also 38 C.F.R. § 4.14 (avoidance of pyramiding). In sum, following a review of the evidence, to include the statements of the Veteran and his representative, and treatment records throughout the period on appeal, the Board finds that the claim of entitlement to a rating in excess of 10 percent for the Veteran's left and right knee disability is denied. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine does not apply. 38 U.S.C. § 5107(b). Thus, the claims are denied. REASONS FOR REMAND Entitlement to a TDIU The issue of entitlement to a TDIU has been raised by the evidence of record. See Rice, supra. Specifically, during his last VA examination for bilateral knee disability in June 2021, the Veteran reported that he is no longer employed because "[he] cannot keep up with the kids." In addition, an April 2013 rating decision noted that the issue of entitlement to a TDIU will be addressed further when the current appeal of increased rating issues for bilateral knee disability is addressed. As such, a consideration of whether the Veteran's service-connected disabilities preclude substantially gainful employment at any time during the appeal period is necessary. Accordingly, a remand is needed for further development and adjudication of the issue of entitlement to a TDIU. This matter is REMANDED for the following action: 1. Request that the Veteran provide a detailed current accounting of his work history, including by completing and returning an updated VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. After conducting any other development deemed necessary, adjudicate the claim of entitlement to a TDIU. 3. If any benefit sought on appeal remains denied, in whole or in part, a notice must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, Associate Counsel 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.