Citation Nr: 21072581 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-51 388 DATE: December 3, 2021 ORDER Entitlement to a separate evaluation for a left knee strain with patella instability is granted. REMANDED Entitlement to an evaluation in excess of 10 percent disabling for a service-connected left knee strain, to include based on limitation of motion and instability, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's left knee strain has been manifested by patella instability as manifested by locking, giving out and pain with use of a prescribed knee brace and subjective reports of the knee 'giving out." CONCLUSION OF LAW The criteria for establishing entitlement to a separate evaluation for a left knee strain with patella instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active-duty service with the United States Army from July 2005 to February 2008. In a November 2018 substantive appeal, the Veteran requested a video conference hearing. In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Regrettably, as to the issue of entitlement to an evaluation in excess of 10 percent disabling for service-connected left knee strain, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Ratings, Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2020). The Board determines the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.10 (2020). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness which causes additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40 (2020); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45 (2020). Additionally, evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14 (2020). However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. Id.; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a separate evaluation for a left knee strain with instability The Veteran contends that current severity of her service-connected left knee strain is worse than currently evaluated. Specifically, she reports a history of instability which includes locking and giving out. As a preliminary matter, the Board observes that the Veteran was previously granted service connection for a left knee strain. It is currently evaluated as 10 percent disabling, under Diagnostic Code 5261. The Veteran's assertions as to reduced range of motion are deferred for additional development with the remanded claim. As to the current claim, the Veteran testified at a video conference hearing in February 2021. Therein, she contends that at the time of her initial VA examination, there was sufficient evidence to evaluate her left knee disability for limited range of motion and instability. She reports an experience of increasing pain, giving out and instability dating back to active service. According to the Veteran, performance of her service-related duties included participation in ruck marches for prolonged periods. Often, while carrying an extremely heavy saw. She contends that the marches were particularly challenging as they were maneuvering over difficult terrain in South Korea. At that time, the Veteran was the only female soldier in her unit. Since separation, she complains of symptom progression, to include worsening pain, locking and giving out of the left knee. She further contends that medical record confirms evidence of instability. During a VA examination in January 2008, reports of giving out with bending were documented. To treat her symptoms, physical therapy sessions were prescribed. Sessions included stretching exercises, yoga, hot and cold therapy. Regrettably, minimal symptom improvement was achieved. Current symptoms include pain, weakness and instability. Magnetic resonance imaging (MRI) suggested rigidity with minimal cartilage around the meniscus. Other treatment records note complaints of pain beneath the kneecap with instability and swelling despite use of a knee brace. Due to her current symptoms, the Veteran suffers impaired mobility during inclement weather, walking over uneven terrain, and participating in physical activities due to pain and instability. An increased risk of falls was also reported. According to the Veteran, her left knee disability requires favoring the right knee. Emotional turmoil was also associated with her left knee condition. Under Diagnostic Code 5257 (as of February 7, 2021, under the amended regulatory criteria) instability of the knee is broken into two categories, (1) recurrent subluxation or instability, and (2) patellar instability. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). For (1), recurrent subluxation or instability due to sprains or ligament tears causing persistent instability, a 10 percent rating is warranted when there is no 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 when there is a medical provider who prescribes either a brace or an assistive device for ambulation and there is persistent instability from ligament tears or sprains. A 30 percent rating is warranted when there is a prescription from a medical provider for both an assistive device and bracing for ambulation. Id. For (2), patellar instability is defined as a diagnosed condition involving the patellofemoral complex with recurrent instability. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The patellofemoral complex for Code 5257 is defined as consisting of the quadriceps tendon, the patella, and the patellar tendon. A note clarifies that a surgical procedure that does not involve repair to at least one of the patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for this Code. Id. For patellar instability, a 10 percent rating is warranted when there is a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a 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 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 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 walker. Id. Review of the record indicates that the Veteran has continued to seek treatment for her left knee disability. Left knee X-rays, dated December 2016, revealed a patella with lateral displacement. In March 2017, the Veteran was evaluated for left knee pain. No recent history of injury or trauma was reported. Pain, described as a dull ache, was located behind the kneecap with varying intensity. Maneuvering stairs caused stiffness. Due to instability, the Veteran bears more weight on her right leg. A physical therapy evaluation, dated September 2017, notes worsening left knee pain rated as a 3-6 on a 10-point scale. A prosthetic knee brace was ordered with gel packs for icing. Other treatments include patellar distraction style taping. The treating clinician documented efforts to reduce friction, irritation and pain with functional mobility. During subsequent sessions, the Veteran reported increasing soreness with use of the prescribed knee brace. On examination in September 2018, current diagnoses were listed as left knee strain and patellofemoral syndrome. During a physical examination, the Veteran endorsed participation in physical therapy for her left knee. Current symptoms include a snagging sensation with pain and giving out. Physical therapy treatments nor use of a prescribed knee brace have resolved her symptoms. The Veteran denied regular use of an assistive device due to associated pain. According to the Veteran, she wished to pursue steroid injections and more aggressive physical therapy. A functional impairment was described as difficulty squatting repetitively. Evidence of crepitus was noted. Additional functional loss, described as pain, was observed with repetitive use testing. Joint stability testing yielded normal findings (anterior, posterior, medial and lateral stability testing were all deemed normal). It was specifically noted that there was no history of subluxation or joint instability. No additional conditions were documented, to include recurrent patellar dislocation, shin splints, or a meniscal impairment. Diagnostic imaging confirmed degenerative arthritis. An MRI without contract was conducted in August 2017. It revealed a subtle chondromalacia patella, small joint effusion, and equivocal thickening of the superomedial synovial plica. The Veteran described her functional impairment as an inability to perform repetitive squatting. On review of the record, the Board finds that the evidence supports the assignment of a separate evaluation for instability of the left knee under Diagnostic Code 5257, as amended. In support of the stated conclusion, the Board notes that the X-ray findings revealed patella with lateral displacement in December 2016. Physical therapy treatments records document reports of a dull ache behind the kneecap, with minimal improvement due to use of a prescribed knee brace or patellar distraction style taping. A current diagnosis of a patellofemoral syndrome was noted during a VA examination in September 2018. An MRI without contract was conducted in August 2017. It revealed a subtle chondromalacia patella, small joint effusion, and equivocal thickening of the superomedial synovial plica. Despite the above, the examiner indicated that joint stability testing revealed normal findings. The Board recognizes that the Veteran is generally competent to report on observable symptoms and such statements are deemed credible to the extent that they articulate the Veteran's subjective belief that he is entitled to a higher rating. In this case, greater probative weight is placed on the Veteran's lay assertions as there are consistent with the medical evidence of record. Moreover, the Board notes that the VA examiner documented a current diagnosis of patellofemoral syndrome in September 2018, despite a separate report of normal findings with joint stability testing. Additionally, the Board recognizes the Veteran's competence to report on her perception of instability, which she described as pain, giving out, and locking. In a recent precedential decision, English v. Wilkie, the Court determined that Diagnostic Code 5257 does not "speak to the type of evidence required and, thus, objective medical evidence [is not] required to establish lateral knee instability under that Diagnostic Code." 30 Vet. App. 347, 349 (2018). Resolving all doubt in the Veteran's favor, the Board finds that the evidence is in equipoise with the assignment of a separate evaluation for instability of the left knee. Accordingly, the Veteran's claim is granted to the limited extent of assigning a separate evaluation for instability of the left knee. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. §§ 3.102; 4.3 (2020); Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent disabling for service-connected left knee strain is remanded. The Veteran contends that the current severity of her service-connected left knee strain warrants a higher evaluation. Review of the record indicates that she has continued to receive treatment for her left knee disability. She was last afforded a VA examination in September 2018. During a recent Board hearing, the Veteran testified that her symptoms have progressively worsened, to include increasing pain, instability, giving out, and locking. She also reported functional impairments as to maneuvering over various types of terrain, sensitivity to inclement weather, and difficulty engaging in physical activities. The Board recognizes that the Veteran is generally competent to report on her current symptoms and their worsening. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Where there is evidence that the condition has worsened since the last examination, a veteran is entitled to a new VA examination. Snzy'fer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain updated VA and private treatment records and associate them with the claims file. Schedule the Veteran for an appropriate VA examination to determine the current severity of her service-connected left knee disability. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. Range of motion testing (both active and passive) is to be conducted. The examiner is also to offer an opinion as to further limitation of motion during periods of flare-up due to symptoms such as pain. Additional testing, to include stability testing, must also be performed. The examiner is to describe in detail the frequency and severity of the Veteran's reported instability. The examiner must also discuss the functional effects of the Veteran's service-connected left knee disability, and any related residual conditions. As a part of the examination and/or opinion, the examiner must consider all evidence this includes both medical evidence and the Veteran's lay statements. Any opinion offered must be accompanied by a complete rationale, to include discussion of the aforementioned evidence. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information or evidence would allow for a more definitive opinion. 2. Thereafter, re-adjudicate the Appellant's claim. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case and an adequate opportunity to respond before returning the matter to the Board for further adjudication, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims to be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.