Citation Nr: 21066089 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 09-46 623 DATE: October 28, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for patellofemoral chondromalacia and synovitis, right knee is denied. Entitlement to a separate evaluation for urinary incontinence is dismissed. FINDINGS OF FACT 1. The Veteran's right knee disability is manifested by traumatic arthritis accompanied with painful movement of the joint. 2. There is no question of law or fact remaining in regard to the assignment of separate initial rating for urinary incontinence. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a 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, Diagnostic Codes 5257, 5260, 5261, and 5010. 2. The criteria for dismissal of Entitlement to a separate evaluation for urinary incontinence have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205 (for AMA) § 19.55 (legacy). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1990 to June 1991. He also had additional reserve service. The Veteran's claims were most recently remanded by the Board in a July 2018 decision. The remand directives ordered the following actions: (1) obtain an updated and adequate VA examination for the Veteran's right knee disability; and (2) assign a separate initial evaluation for urinary incontinence as a manifestation of the Veteran's service-connected low back disorder. The Board finds that the RO has substantially complied with the July 2018 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that the Veteran has been granted total disability due to individual unemployability effective December 10, 2015. The Veteran's claim regarding an earlier effective date for TDIU is not currently before the Board. Increased Rating 1. Entitlement to an evaluation in excess of 10 percent for patellofemoral chondromalacia and synovitis, right knee The Veteran contends that he is entitled to a higher rating because his right knee has worsened since his 2009 examination. The assigned Diagnostic Code 5257 suggests that the patellofemoral chondromalacia and synovitis, right knee is rated based on slight recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. A review of the evidence reflects that the Veteran's knee has manifested as osteoarthritis and has been rated based on painful noncompensable limitation of motion, and that the patellofemoral chondromalacia and synovitis, right knee has not had compensable limitation of motion or slight recurrent subluxation or lateral instability at any time during the relevant rating period. Therefore, the Diagnostic Code assigned should have been Diagnostic Code 5010, to show that the patellofemoral chondromalacia and synovitis, right knee with osteoarthritis is being rated based on noncompensable limitation of motion that is painful. For this reason, the Board is changing the Diagnostic Code for the patellofemoral chondromalacia and synovitis, right knee to 5010 to reflect the actual rating already assigned. 38 C.F.R. § 4.71a. The Veteran's patellofemoral chondromalacia and synovitis, right knee was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg. The amended Diagnostic Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability. For recurrent subluxation or instability, a 10 percent rating is warranted 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 (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (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), walker) or bracing for ambulation. A maximum 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. For patellar instability, a 10 percent rating is warranted for 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. A 20 percent rating is warranted for 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. A maximum 30 percent rating is warranted for 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. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Specifically, the Board has considered a rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5260, for limitation of flexion of the leg, and 5261 for limitation of extension of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 20 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. In July 2020, the Veteran was afforded an updated VA examination. The examiner diagnosed the Veteran with degenerative arthritis of the right knee and indicated that his patellofemoral chondromalacia and synovitis has resulted in the degenerative arthritis. On initial range of motion testing, the Veteran had flexion limited to 130 degrees and extension limited to 0 degrees. The examiner indicated the limitation of motion did not itself contribute to a functional loss but did note pain on flexion. The examiner also indicated there was evidence of pain with weight bearing and objective evidence of crepitus on the right knee. The left knee examination was normal. The examiner indicated the Veteran would have functional loss due to pain, fatigue, weakness, and lack of endurance over time, but that the Veteran's range of motion would stay the same with repeated use over time. The examiner also indicated that pain, weakness, fatiguability, and weakness would result in functional loss during a flare up. The examiner indicated the Veteran would have flexion limited to 120 degrees and extension limited to 0 degrees on the right during a flare up. The examiner noted additional factors contributing to disability on the right including instability of station, disturbance of locomotion, interference with standing, and a mildly antalgic gait. The examination revealed 4/5 muscle strength on flexion and extension on the right, but no muscle atrophy or ankylosis. The examiner indicated there was no history of recurrent subluxation or lateral instability, and no history of recurrent effusion. Joint stability testing was normal bilaterally. The examiner noted a history of right knee arthroscopic surgery in 1998. The examiner also indicated the Veteran regularly used a brace and a cane for his right knee disabilities. The examiner concluded that the Veteran cannot stand and walk for a prolonged period, and he cannot do frequent kneeling and squatting. The examiner noted no objective evidence of pain on non-weight-bearing and the same active and passive range of motion. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's right knee condition. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and difficulty standing for long periods of time and inability to do frequent kneeling and squatting. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he has pain and swelling of the knees would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or extension limited to 5 degrees. Based on the July 2020 VA examination, even during a flare up, the Veteran's flexion was limited to 120 degrees and extension was limited to 0 degrees. The examiner further indicated there was no history of joint subluxation or instability and none was found on the examination. Thus, the Veteran's right knee disability is noncompensable based on motion. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for a right knee disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a separate evaluation for urinary incontinence The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 38 U.S.C. § 7105. Since the last Board remand, the Agency of Original Jurisdiction (AOJ) granted an evaluation of 20 percent for urinary incontinence, effective August 15, 2016, in a September 2020 rating decision. The award of a separate rating for urinary incontinence represents a grant of the pertinent benefits sought on appeal, and the Veteran has not challenged the evaluation, or the effective date assigned. Accordingly, the Board finds that the benefit sought on appeal has already been granted, and there remains no question of fact or law to be decided by the Board concerning the issue of separate evaluation for urinary incontinence. For these reasons, the appeal with respect to the claim for a separate evaluation for urinary incontinence must be dismissed. See 38 U.S.C. § 7105. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.