Citation Nr: 21071733 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-36 687 DATE: December 1, 2021 ORDER Entitlement to a 10 percent rating for limitation of motion of the left knee due to patellofemoral syndrome is granted. Entitlement to a 10 percent rating for limitation of motion of the right knee due to patellofemoral syndrome is granted. REMANDED Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome manifested by limitation of motion is remanded. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome manifested by limitation of motion is remanded. Entitlement to an initial rating for left knee instability is remanded. Entitlement to an initial rating for right knee instability is remanded. Entitlement to a compensable rating for a left knee scar as secondary to the service-connected left knee patellofemoral syndrome is remanded. Entitlement to service connection for left foot athlete's foot is remanded. FINDINGS OF FACT 1. The Veteran's left knee patellofemoral syndrome is productive of painful motion. 2. The Veteran's right knee patellofemoral syndrome is productive of painful motion. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for left knee patellofemoral syndrome have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5260-61. 2. The criteria for a 10 percent rating for right knee patellofemoral syndrome have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5260-61. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 2007 to May 2011, including service in Afghanistan. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. 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. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by pain. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). 1. Entitlement to a 10 percent rating for left knee patellofemoral syndrome 2. Entitlement to a 10 percent rating for right knee patellofemoral syndrome In VAOPGCPREC 23-97, the VA General Counsel concluded that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See 62 Fed. Reg. 63604 (1997). Thereafter, in August 1998, the VA General Counsel issued another pertinent precedent opinion that may have a bearing on the issue on appeal. In VAOPGCPREC 9-98 (1998), the VA General Counsel further explained that, when a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. Precedent opinions of the VA General Counsel are binding on the Board. See 38 U.S.C. § 7104(c). As such, the Board will first evaluate the Veteran's bilateral knee limitation of motion. The Veteran was granted noncompensable evaluations for recurrent subluxation or lateral instability of the left knee and right knee, pursuant to DC 5257, with an effective date of July 18, 2016, the date of claim. See October 2016 Rating Decision. The Board finds that a 10 percent rating under 5260 is warranted throughout the appeal period because of the Veteran's painful motion for the left knee and right knee. The Veteran's September 2016 VA examination does not show left knee and right knee flexion limited to 60 degrees or less or extension limited to 5 degrees or more. The results of this examination do not show a compensable loss of range of motion in his left or right knee. However, because the Veteran's motion has been productive of pain throughout the appeal period, he is entitled to a compensable 10 percent rating under DC 5260. Burton v. Shinseki, 25 Vet. App. 1 (2011). Higher ratings are discussed in the Remand section of this decision. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. 2. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome is remanded. 3. Entitlement to an initial rating for left knee instability is remanded. 4. Entitlement to an initial rating for right knee instability is remanded. The Veteran is rated 10 percent disabling for left knee and right knee limitation of motion, pursuant to DC 5260. The Veteran requested increased ratings for his bilateral patellofemoral syndrome, stating the September 2016 VA examiner failed to adequately address the Veteran's complaints of knee pain. See October 2021 Appellate Brief. The Board notes that since the previous September 2016 VA examination, the U.S. Court of Appeals for Veteran's Claims (the Court) has issued the decisions in Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. The Court in Sharp held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flare-ups and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." As a result, the September 2016 VA examination is deemed inadequate in light of the Court's determination in Sharp. In the September 2016 VA knees examination, the Veteran's forward flexion was limited to 130 degrees for both knees, while additional functional loss or range of motion measurements were not estimated for observed repetitive use or repeated use over time. The examination was not conducted during a flare-up. The Board emphasizes that in Sharp the Court held that the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." As such, the examiner's inability to estimate the Veteran's limitation of motion during flare-ups, during observed repetitive use and on repeated use renders the examination report not adequate for rating purposes. The Board finds that there is no recent examination to determine the current impact and severity of Veteran's left knee and right knee disabilities that is Sharp compliant, and the September 2016 VA examination is also not Sharp compliant. As such, this appeal must be remanded. The Board finds a remand is necessary to obtain a new VA examination for the Veteran's left knee and right knee disabilities that comply with Sharp, and for an examiner to review the claims folder and provide opinions necessary to adjudicate this appeal. 5. Entitlement to a compensable rating for a left knee scar as secondary to the service-connected left knee patellofemoral syndrome is remanded. 6. Entitlement to service connection for left foot athlete's foot is remanded. The record shows that the Veteran receives regular VA care for his left knee and left foot disabilities. Records of his VA treatment, however, dated since November 2016, have not been associated with the claims folder. Records of his VA treatment are constructively before VA. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In light of the state of the record, the Board finds that the claims must be remanded to associate those records and to afford him a contemporaneous VA examination to assess the current severity of his left knee scar and left foot disability. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). The matters are REMANDED for the following action: 1. Obtain any outstanding VA medical records and associate them with the Veteran's claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his bilateral knee and left foot problems. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination(s) (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of his bilateral knee disabilities. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should also offer an estimate as to additional functional loss flares regardless of whether the Veteran is undergoing a flare-up at the time of the examination. Further, in accord with the requirements of 38 C.F.R. § 4.59, the 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; or an explanation from the examiner that any such testing cannot or should not be conducted. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his left and right knee symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. 4. Schedule the Veteran for a VA examination(s) (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature, onset and etiology of any left foot impairment found to be present, to include athlete's foot. Thereafter, the examiner should respond to the following inquiries: (a) Is it at least as likely as not that the Veteran's left foot disability is related to or had its onset in service? In rendering this opinion, the examiner must consider the Veteran's lay statements regarding the onset of the condition; (b) Is it at least as likely as not that the Veteran's left foot disability is proximately due to, the result of, or caused by any of his service-connected disabilities; (c) Is it at least as likely as not that the Veteran's left foot disability was aggravated by his any of his service-connected disabilities? STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.