Citation Nr: 21071777
Decision Date: 12/01/21	Archive Date: 12/01/21

DOCKET NO. 19-21 725
DATE: December 1, 2021

ORDER

Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral syndrome is denied.

REMANDED

Entitlement to service connection for a low back disability is remanded.

FINDING OF FACT

Evidence of record fails to show the Veteran's right knee patellofemoral syndrome warrants a disability rating higher than the current 10 percent evaluation.

CONCLUSION OF LAW

The criteria for entitlement to a disability 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. 3.102, 4.1, 4.2, 4.3, 4.30, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260, 5261.

REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran served in the United States Marine Corps (USMC) with active duty service from January 1998 to September 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision. The Board initially denied the claims for service connection for a low back disability and a rating greater than 10 percent for patellofemoral syndrome of the right knee in a February 2020 decision. 

The Veteran then appealed this decision to the Court of Appeals for Veterans Claims (Court). The Court vacated the Board's denial in a February 2021 Joint Motion for Remand (JMR). Specifically, the JMR found the Board relied on an October 2018 VA examination that failed to consider lay statements from the Veteran regarding how her back disability was incurred in service and continued to affect her daily life thereafter. 

The Board remanded the issue in July 2021 for an addendum opinion to review and consider the Veteran's lay assertions, specifically the lay statements submitted with her December 2018 notice of disagreement (NOD). The Board finds another remand is required for an addendum opinion addressing these lay statements as the August 2021 addendum opinion was inadequate.

Also, in the July 2021 decision, the Board remanded the claim for an increased rating of the right knee patellofemoral syndrome for further development and a new VA examination. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). The Board is satisfied that there was substantial compliance with its remand orders and is now prepared to adjudicate the increased rating claim at hand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).

1. Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral syndrome

The Veteran contends that she is due entitlement to a rating in excess of 10 percent for her right knee patellofemoral syndrome.

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59.

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). Read together, Diagnostic Code 5003 / 5010 and 38 C.F.R. § 4.59 indicate that painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

Further, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weightbearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). In addition, the assignment of a disability rating should take into account limitation of functional ability or additional range of motion lost during flare-ups or after repetitive motion, but not necessarily reflected on range-of-motion testing at the VA examination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).

The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and duration of her service-connected bilateral knee disabilities. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). However, the Board can discount lay evidence in its role as factfinder if it weighs the evidence, finds the clinical evidence more probative, and provides an explanation with supporting reasons or bases. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).

When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

The Board is cognizant of the recent changes to the Rating Schedule that addresses the musculoskeletal system and muscle injuries, which became effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Regardless, 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); VAOPGCPREC 3- 2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Thus, the Board will continue to apply the old rating criteria for the Diagnostic Codes to rating periods prior to February 7, 2021 but can apply whichever set of criteria is more favorable to periods after February 7, 2021, if the claim was pending prior to this date.

In the present case, the February 7, 2021 amendments to Diagnostic Codes 5003, 5257, 5260, 5261 for degenerative arthritis and knee disabilities are of no consequence here. Moreover, even if they did apply to the evidence currently of record, the February 7, 2021 amendments would not change the outcome of the present appeal based on the particular fact pattern of the Veteran's case.

The Veteran's patellofemoral syndrome, right knee, is rated under 38 C.F.R. § 4.71a, DC 5260, for limitation of flexion of the leg. Under DC 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, DC 5260. 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). 

An August 2018 VA examination is of record. The Veteran reported pain with activity but had not sought any treatment with orthopedic specialists. She had a brace that she wore when there was pain for a few days. The Veteran took Motrin as needed for pain. She reported cracking in the knee when bending. There were flare-ups if the Veteran had weight on the knee for an extended period of time. She reported problems with jogging, standing, or walking for extended periods of time, but the problems were pain and endurance but not loss of function as she was able to run or swim even during flare-ups, albeit with discomfort. Range of motion of the right knee was from 0 to 120 degrees, but the limited range of motion did not contribute to functional loss. There was evidence of pain on weight-bearing. There was crepitus, but no tenderness to palpation. The Veteran could perform repetitive use testing, which did not result in additional functional loss. Right knee muscle strength was normal and there was no muscle atrophy. There was no ankylosis. The right knee had no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing all was normal. The Veteran had no history of a meniscal condition. There was no pain with non-weight bearing in the right knee, and passive and active ranges of motion were the same. Occupational functioning was effective in that she had trouble with prolonged periods of kneeling, walking, and standing. X-rays of the right knee were within normal limits.

In her December 2018 notice of disagreement, the Veteran reported that her knee was an issue almost every day that she tried to do be active. She had pain with walking, jogging, or biking. Knee braces had done little to help the pain. There was aching after a few days of swimming. In May 2016, the Veteran's right knee "gave out" while on a treadmill and she feared it would happen again. In a statement attached to her July 2019 substantive appeal, the Veteran reported that while she had not reported tenderness on the day of her VA examination and that most days, she did have tenderness and daily pain, weakness, and instability that would only worsen as she aged.

In February 2021, the Court remanded the matter, finding that the Board relied on an inadequate VA examination from August 2018. The August 2018 VA examination the Board relied upon provided an inadequate rationale for not providing an opinion on the functional impact of flareups. Therefore, a remand was required to address the impact of flareups on the Veteran's functional limitations.

In August 2021, the Veteran was afforded another VA examination of the right knee. The Veteran reported flareups of the knee that would occur about once a week and were moderate to severe. She stated that the flareups would last for a few minutes and were precipitated by being on her feet. The flareups could be alleviated by rest, use of Icy Hot, Biofreeze, and use of a heating pad. The Veteran also reported having functional impairment of the joint, stating she cannot be on her feet for long periods of time. The examination showed that the range of motion of the right knee is abnormal but does not contribute to functional loss. Flexion was measured to 135 degrees while extension was measured to zero degrees. Pain was noted on both flexion and extension of the right knee. Passive range of motion testing produced the same results. Evidence of pain was noted on weightbearing, active motion, and passive motion but was not found to cause functional loss or limitation. The right knee also showed objective evidence of crepitus and of localized tenderness or pain on palpation. Repeated use over time was found to suggest pain which significantly limited the functional ability with repeated use over time. The examiner estimated repeated use over time limited the Veteran's range of motion to 130 degrees in flexion.

Flareups of the knee were also examined in accordance with remand directives. The examiner stated that procured evidence suggested that pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability were present when the Veteran experienced flareups. The examiner also estimated that the range of motion of the joint during a flareup would be limited to 120 degrees of flexion. The examiner noted no additional disabilities of the knee, no muscle atrophy, and no objective joint instability, although subjective joint instability was noted. The examiner finally found that conditions listed impacted her ability to perform occupational tasks. Specifically, due to the right knee the Veteran could not stand for longer than 20 minutes or walk for 30 minutes and could not go down more than 12 steps of stairs without taking a break.

The Veteran has been awarded a 10 percent rating for a painful right knee joint under Diagnostic Code 5260 because her right knee patellofemoral syndrome has only manifested in painful but noncompensable limitation of flexion of the right knee. 38 C.F.R. § 4.71a. Her right knee patellofemoral syndrome has not demonstrated compensable limitation of motion at any time during the relevant rating period. While the new August 2021 VA examination is adequate and assessed the Veteran's flareups of the right knee, the Board finds that no rating in excess of 10 percent is warranted due to the fact that the Veteran is already rated at the maximum level for pain of the knee under 38 C.F.R. § 4.59 and does not meet the compensable limitation of flexion or extension of the right knee. 38 C.F.R. § 4.71a, DC 5260, 5261.

In that connection, the Board notes that under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. See 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and, a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. Id. 

Upon review, the Board concludes that a rating in excess of 10 percent for the Veteran's right knee patellofemoral syndrome under either Diagnostic Code 5260 or 5261 for limitation of flexion or extension is not warranted. 38 C.F.R. § 4.7. The Board has reviewed both the medical and lay evidence of record and finds no limitation of flexion of the leg to 30 degrees or limitation of extension to 10 degrees. This is so even when considering the examiner's estimation of additional limitation of function during flare-ups and after repeated use. The probative lay and medical evidence of record simply does not demonstrate limitation of flexion more nearly approximating flexion to 30 degrees for the right knee or limitation of extension to 10 degrees, even when considering the Veteran's lay report of symptoms, the Veteran's spouse lay report, as well as noted functional loss and flareups. See 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261.

In light of the above medical and lay evidence, even with consideration of additional range of right knee motion lost due to pain and weakness and other functional loss factors during flare-ups or after repetitive motion, the Board finds that the Veteran's limitation of right knee flexion at no point warrants a rating in excess of 10 percent. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26 (2017); Mitchell v. Shinseki, 25 Vet. App. 32; DeLuca v. Brown, 8 Vet. App. 202 (1995). In making this determination, the Board has consistently considered the impact of functional loss upon the Veteran's range of motion for her right knee. But VA regulations addressing functional loss do not require the assignment of a higher schedular rating where the functional limitation due to pain does not result in limitation of motion sufficient to meet the requirements of the next higher disability rating. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016) (holding that §§ 4.40 and 4.45 do not supersede the requirements for a higher disability rating specified in § 4.71a). In the present case, despite her obvious functional loss, limitation of right knee flexion to 30 degrees, which is necessary to meet the criteria for a higher 20 percent rating under Diagnostic Code 5260, simply is not demonstrated anywhere in the record. See 38 C.F.R. § 4.71a. There is no evidence of record to support an increased rating; the claim must be denied.

REASONS FOR REMAND

1. Entitlement to service connection for a low back disability is remanded.

As noted above, the Court vacated and remanded the Board's February 2020 denial of the Veteran's low back disability due to the fact that the October 2018 VA examiner did not have an opportunity to evaluate and review the Veteran's lay statements and assertions, specifically, those in the December 2018 NOD that post-dated the VA opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007).

In August 2021, the VA issued an addendum opinion on the Vet's claim for entitlement to service connection for her low back disability. The addendum opinion noted that the Board remand directives stated that the VA was to obtain an addendum opinion regarding whether the Veteran's low back disability is at least as likely as not related to her service. The examiner is to consider the Veteran's lay assertions, including the lay statements included in the December 2018 NOD and the rationale for the opinion must be provided. However, while the addendum examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, the examiner offered only the following rationale: "a review of the Veteran's available medical records does not provide any documentation indicating that the Veteran complained of or was treated for back pain during her military career hence it is less likely than not that the Veteran's low back condition incurred in or was caused by the claimed in-service injury, event, or illness." The examiner did not discuss or even reference the Veteran's December 2018 statement, as directed in the remand. 

The Board finds this rationale to be wholly inadequate and not in compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, the Board regrettably finds that another remand is required to offer this Veteran the fairest adjudication of her claim.

The matters are REMANDED for the following action:

1. Obtain an addendum opinion regarding whether the Veteran's low back disability is at least as likely as not (50 percent or greater) related to the Veteran's service. The examiner must thoroughly and explicitly consider and discuss the Veteran's lay assertions, including specifically the lay statements included in the December 2018 Notice of Disagreement, in which she discussed the in-service incurrence of her back injury and the ways in which it has continued to affect her daily life, as well as the Veteran's husband's lay statements submitted into the record in April 2021. The rationale for the opinion must be provided. 

 

Caroline B. Fleming

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E.L. Aumiller, 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.