Citation Nr: 21066201 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 15-27 100 DATE: October 28, 2021 ORDER Entitlement to a rating in excess of 40 percent for chondromalacia patella of the right knee with limitation of extension is denied. Entitlement to a rating in excess of 10 percent for chondromalacia patella of the right knee with limitation of flexion is denied. Entitlement to a rating in excess of 10 percent for instability of the right knee beginning February 20, 2021 is denied. Entitlement to a rating in excess of 20 percent for instability of the right knee beginning June 1, 2021 is denied. FINDINGS OF FACT 1. The Veteran's right knee chondromalacia patella is manifested by extension limited to 35 degrees. 2. The Veteran's right knee chondromalacia patella is manifested by painful limitation of motion. 3. Beginning February 20, 2021, the Veteran's right knee instability was manifested by diagnosed condition involving the patellofemoral complex with recurrent instability that does not require a documented prescription from a medical provider for a brace, cane, or walker. 4. Beginning June 1, 2021, the Veteran's right knee instability was manifested by a diagnosed condition involving the patellofemoral complex with recurrent instability that does require a documented prescription from a medical provider for a brace, cane, or walker. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 40 percent for chondromalacia patella of the right knee based on extension have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.71a (Diagnostic Code 5261). 2. The criteria for a rating greater than 10 percent for right knee chondromalacia patella based on flexion have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.71a (Diagnostic Code 5003-5260). 3. The criteria for a rating greater than 10 percent for instability of the right knee beginning February 20, 2021 have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.71a (Diagnostic Code 5003-5257). 4. The criteria for a rating greater than 20 percent for instability of the right knee beginning June 1, 2021 have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.71a (Diagnostic Code 5003-5257). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1987 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) from the October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a November 2018 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 1. Entitlement to a rating in excess of 40 percent for chondromalacia patella of the right knee with limitation of extension 2. Entitlement to a rating in excess of 10 percent for chondromalacia patella of the right knee with limitation of flexion 3. Entitlement to a rating in excess of 10 percent for instability of the right knee beginning February 20, 2021 4. Entitlement to a rating in excess of 20 percent for instability of the right knee beginning June 1, 2021 The Veteran contends that his right knee conditions warrant higher ratings. The Veteran's right knee disabilities are rated under numerous diagnostic codes, as discussed below. The Veteran's original appeal stems from his right knee disability that is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension of the leg. 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 15 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. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board also notes that during the pendency of the appeal, the rating criteria for rating 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 select 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 the course of 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). 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. Therefore, the Board will consider the Veteran's appeal under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The regulatory changes reworded the Diagnostic Code 5003 from "Arthritis, degenerative (hypertrophic or osteoarthritis)" to "Degenerative arthritis, other than post-traumatic", but did not change the criteria for rating disabilities under the diagnostic code. Diagnostic Code 5003 directs that a rating shall be awarded on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If noncompensable limitation of motion is demonstrated, a 10 percent rating is assigned for each major joint or group of minor joints affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The regulatory changes reworded Diagnostic Code 5010 from "Arthritis, due to trauma, substantiated by X-ray findings" to "Post-traumatic arthritis". Prior to the regulatory change, Diagnostic Code 5010 directed that the disability be rated as degenerative arthritis under Diagnostic Code 5003. As of February 7, 2021, under the amended criteria, Diagnostic Code 5010 directs that the disability be rated as 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. The regulatory changes also reworded the Diagnostic Code 5014 from "Osteomalacia" to "Osteomalacia, residuals of", but did not change the criteria for rating disabilities under the diagnostic code. Further criteria for rating disabilities of the knees applicable in this case are found in 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, and 5261. Prior to the regulatory changes, under Diagnostic Code 5257, a 10 percent rating was warranted for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 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 as in effect prior to February 7, 2021. Therefore, objective medical evidence cannot be categorically found more probative than lay evidence with respect to that diagnostic code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). As of February 7, 2021, under Diagnostic Code 5257, a 10 percent rating is warranted when 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; or where there is 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 when there is 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; an 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; or 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 30 percent rating is warranted when there is an 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; or there is 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 regulatory changes did not affect Diagnostic Codes 5260 and 5261. 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. In August 2011, the Veteran underwent a VA knee examination. The examiner noted that the Veteran is diagnosed with chondromalacia patella of the right knee. The Veteran did not report flare ups that impact the function of his knee. The Veteran's initial range of motion was noted as flexion ending at 110 degrees and no limitation of extension. The Veteran was noted to be able to perform repetitive-use testing with 3 repetitions with no limitation in range of motion. The examiner stated that the Veteran's right knee manifests in less movement than normal, interference with sitting, standing, and weight bearing, and that the Veteran has difficulty squatting, kneeling, and climbing stairs. Additionally, no history of recurrent patellar subluxation or dislocation was noted, and the Veteran's instability testing was normal. The examiner concluded that the Veteran's right knee condition impacts his ability to work as the Veteran has difficulty bending his knee, squatting, and kneeling, all which interferes at his job that requires him to physically restrain adolescents. In May 2015, the Veteran underwent a VA knee examination. The Veteran reported flare ups and stated that he has to limit his activities and work due to his knee condition. The Veteran's initial range of motion was as follows: flexion from 5 to 120 degrees and extension from 120 to 5 degrees. Pain was noted on examination but did not itself contribute to functional loss. Pain, fatigue, and weakness was noted to significantly limited functional ability with repeated use and during flare ups and limited the Veteran's flexion to 0 to 101 degrees and extension from 110 to 0 degrees. Additionally, the Veteran stated that he has weakened movement due to muscle or peripheral nerve injury, instability of station, and disturbance of locomotion. Muscle atrophy was noted in the right lower extremity and measured 10 cm above the upper pole of the patella. No ankylosis was noted. All the Veteran's joint testing provided normal results. The examiner stated that the Veteran's right knee condition does impact his ability to perform any type of occupational tasks as the examiner stated that if the Veteran's right knee is particularly painful, he will remain in the office rather than going to job sites in his job. In December 2018, the Veteran underwent another VA knee examination. The Veteran was noted to be diagnosed with right knee joint osteoarthritis and patellofemoral pain syndrome. The Veteran reported flare ups of pain with decreased function. Additionally, the Veteran stated that his weight-bearing activities have become limited and he now limits walking and other activities. The Veterans range of motion was noted as flexion limited from 5 to 115 degrees and extension limited from 115 to 5 degrees. Pain was noted on flexion. No additional functional loss was noted after three repetitions. The examiner stated that pain, fatigue, weakness, and lack of endurance was noted to significantly limit functional ability with repeated use over a period of time and during flare ups. However, the examiner stated that this functional loss was not able to be described in terms of range of motion as the Veteran's statements regarding functional loss are speculative. No ankylosis was present and the Veteran's joint stability testing was normal. The examiner noted that the Veteran uses a brace on a regular basis. The examiner concluded that the Veteran's right knee condition does impact his ability to perform any type of occupational task as the Veteran has a generally sedentary occupation and he is unable to do a job that requires prolonged weight-bearing, kneeling, etc. This matter was previously before the Board in September 2020 and was remanded for further development. Specifically, the Board found that the Veteran's previous December 2018 VA examination did not comply with the requirements in Correia v. McDonald, 28 Vet. Ap. 158, 168 (2016). The Board stated that the examination did not contain both passive and active, or weight bearing and non-weight bearing, range of motion measurements. Therefore, this matter was remanded for the Veteran to undergo another VA examination. Subsequently, in February 2021, the Veteran underwent a VA knee examination. The Veteran reported flare-ups of his knee that manifest in a lesser ability to tolerate weight bearing activities such as standing, walking, running, climbing, kneeling, squatting, or rising. However, in the section regarding flare ups, the examiner stated that the evidence (statements from the Veteran) did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with flare-ups. Therefore, the examiner did not provide an estimate for any additional loss in range of motion during a flare up. The Board found this inconsistency warranted a new examination to determine accurately any additional loss in range of motion during a flare up (as the record reflects that the Veteran does have flare ups). Therefore, the Board found in May 2021 that the February 2021 examination did not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) and a remand was warranted for a new examination by a different examiner. Subsequently, in June 2021, the Veteran underwent another VA knee examination. The examiner stated that the Veteran is diagnosed with right knee instability and chondromalacia patella in the right knee. The Veteran was noted to walk with a limp, leaning on his left side if he does not wear his right knee brace. The Veteran reported that he has constant dull ache in his right knee even with resting and non-movement. He stated that his right knee pain is aggravated by going up and down stairs, prolonged standing, walking, weight-bearing motions, sitting and driving. The Veteran reported flare-ups of his right knee that occur at least twice a week, especially when he is on his feet more and after prolonged sitting and driving. The Veteran stated that the flare ups last about one hour with pain lingering for about 4-5 hours afterwards. The Veteran also reported a history of instability or recurrent subluxation. He stated that his right knee gives out and has a buckling sensation at least 5-8 times weekly. The Veteran also stated that he had falls in the past due to his right knee instability as well as daily right knee weakness. The Veteran's initial range of motion is as follows: flexion limited to 55 degrees and extension limited to 35 degrees. Pain was noted on both flexion and extension. Passive range of motion was noted to be the same as active range of motion and pain was noted on weight-bearing, non weight-bearing, active motion, passive motion, on rest/non-movement, and was noted to cause functional loss. Objective evidence of localized tenderness with palpation was present. Pain, fatigability, weakness, lack of endurance, and incoordination were noted to significantly limit functional ability with repeated use over time and during flare ups. This was also noted to result in flexion limited to 40 degrees and extension limited to 35 degrees. No muscle atrophy or ankylosis was noted. Regarding joint stability, recurrent subluxation or persistent instability was noted. However, no ligament tear (sprain was documented). The examiner did state that the Veteran requires a prescription (brace) for ambulation. No surgical repair of the knee for patellar instability was noted. The examiner stated that the Veteran's knee condition impacts his ability to perform any type of occupational tasks as his knee condition impacts his ability to do physically demanding work that requires prolonged walking, standing, driving, and sitting. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for right knee chondromalacia patella, based on limitation of extension. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. 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 flare ups at least twice per week would not result in limitation of motion more nearly approximating extension limited to 45 degrees. 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 Veteran is in receipt of service connection for his right knee condition based on limitation of flexion evaluated as 10 percent beginning April 15, 1989. 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right knee chondromalacia patella, based on limitation of flexion. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time and during flare ups. 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 flare ups at least twice per week would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. Additionally, the Veteran is currently in receipt of service connection for instability of the right knee evaluated as 10 percent beginning February 20, 2021 and 20 percent beginning June 1, 2021 under diagnostic code 5257. 38 C.F.R. § 4.71a. At the Veteran's February 2021 VA knee examination, he reported instability and episodes of his right knee giving out and almost falling. The examiner stated that there was recurrent subluxation or persistent instability. However, no ligament tear or sprain was noted. Additionally, no prescription for an ambulatory aid was noted. Therefore, in a March 2021 rating decision, a separate evaluation for instability of the right knee evaluated as 10 percent based on a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history or surgical repair) that does not require a prescription from a medical provider for an ambulatory aid was granted. Subsequently, following the Veteran's June 2021 VA knee examination, this rating was increased to 20 percent based on the documentation of a medical prescription for a brace. However, the evidence of record does not reflect that prior to June 2021, the Veteran required a prescription of an ambulatory aid, necessitating a rating greater than 10 percent. Additionally, following the Veteran's June 2021 VA examination, the evidence does not reflect that the Veteran's right knee was manifested by an 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. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for chondromalacia patella of the right knee based on limitation of extension. Additionally, the Board finds that evidence is against the Veteran's claim for a rating greater than 10 percent for a right knee condition based on limitation of flexion. Finally, the lay and medical evidence of record does not demonstrate that the Veteran's right knee instability warrants a rating greater than 10 percent beginning February 20, 2021 or a rating greater than 20 percent beginning June 1, 2021. 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. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.