Citation Nr: 21073117 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-16 152 DATE: December 7, 2021 ORDER Entitlement to an increased rating higher than 10 percent for right knee patellofemoral syndrome with meniscal tear (right knee disability) is denied. FINDING OF FACT The Veteran's right knee disability symptomatology does not more nearly approximate flexion limited to 30 degrees, or extension limited to 15 degrees, to include during flare-ups. CONCLUSION OF LAW The criteria for a rating increase higher than 10 percent for the Veteran's right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, diagnostic code (DC) 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2004 to December 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona which, inter alia, continued a noncompensable rating for right knee disability. In August 2016, the Veteran filed his notice of disagreement with, among other things, the noncompensable rating for right knee disability. In a January 2017 rating decision, the RO granted a rating increase for right knee disability, evaluating it as 10 percent disabling effective June 11, 2015. In February 2017, the Veteran was issued a statement of the case, and in March 2017, perfected his appeal to the Board. The Veteran requested a Board hearing with a Veterans Law Judge which was scheduled for August 3, 2021. However, the Veteran failed to appear without good cause shown. Therefore, the Board considers the hearing request withdrawn, and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d). In September 2021, the Board remanded the Veteran's claim for a new VA examination to determine the current severity of the Veteran's right knee disability. In October 2021, the RO continued its 10 percent rating for right knee disability, notifying the Veteran in a supplemental statement of the case. RATINGS Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are 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. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Right Knee The Veteran's right knee disability is rated 10 percent disabling under DC 5260 for limitation of flexion of the leg. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code. Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021 and both the former and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. DC 5256 assigns a 30 percent evaluation for knee ankylosis with a favorable angle in full extension, or in slight flexion between 0 and 10 degrees; a 40 percent rating for knee ankylosis in flexion between 10 and 20 degrees; a 50 percent rating for knee ankylosis in flexion between 20 and 45 degrees; and a 60 percent rating for extremely unfavorable knee ankylosis in flexion at an angle of 45 degrees or more. Prior to February 7, 2021, DC 5257 assigns a 10 percent evaluation for slight recurrent subluxation or lateral instability; a 20 percent evaluation for moderate recurrent subluxation or lateral instability; and a 30 percent evaluation for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. As of February 7, 2021, under the amended criteria, DC 5257 assigns a 10 percent rating for recurrent subluxation or instability for sprain, incomplete ligament tear, or complete ligament tear causing persistent instability, without a prescription from a medical provider for an assistive device, or bracing for ambulation; a 20 percent evaluation for sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or unrepaired or failed repair of complete ligament tear causing persistent instability, and medical provider prescribes either an assistive device or bracing for ambulation; and a 30 percent evaluation for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribes both an assistive device and bracing for ambulation. Under DC 5258, a 20 percent evaluation is assigned for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. Under DC 5259, a 10 percent evaluation is assigned for removal of semilunar cartilage which is symptomatic. 38 C.F.R. § 4.71a. Under DC 5260, limitation of flexion of the leg is noncompensable where flexion is limited to 60 degrees. A 10 percent evaluation is warranted where flexion is limited to 45 degrees; a 20 percent evaluation is warranted where flexion is limited to 30 degrees; and a 30 percent evaluation is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, limitation of extension of the leg, a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating where extension is limited to 30 degrees; and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a. VA General Counsel provided guidance in VAOPGCPREC 23-97 (July 1997) that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under DC 5257, the Veteran must also have limitation of motion under DC 5260 or 5261 in order to obtain a separate rating for arthritis. If the Veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, General Counsel also clarified, if a Veteran has a disability rating under DC 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under DC 5003 in light of sections 4.40, 4.45, 4.59 must be considered. Absent x-ray findings of arthritis, limitation of motion should be considered under DCs 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under DCs 5260 or 5261. In addition, the VA General Counsel has held that separate ratings may be assigned under DC 5260 and DC 5261 for disability of the same joint. VAOPGCPREC 9-2004. Id. Specifically, where a Veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. The limitation of flexion and extension must be compensable in both planes in order to warrant separate ratings. Id. There is no prohibition of separate evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5257 or 5261 and a meniscal Diagnostic Code, i.e., Diagnostic Codes 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017). July 2015 VA treatment records reflect that the Veteran reported constant pain from his knees radiating down to his legs. The Veteran also reported discomfort down his right knee and ankle. Right knee imaging reflected well mineralized bones, no acute fracture lines, dislocations, bony erosions, joint effusions, or gross soft tissue abnormalities. An October 2015 VA examination report indicates that the Veteran's right knee disability causes pressure-like sensations when he runs, and the Veteran reported difficulty walking more than a couple of hours. He also stated that the pain is getting worse when he uses the stairs. He did not report flare-ups, range of motion was normal with flexion to 140 degrees, and extension to 0 degrees, there was no pain with weight bearing, but there was mild tenderness present when the patella is pushed towards the knee joint. There was no objective evidence of crepitus, no additional functional loss or range of motion after three repetitions, muscle strength was normal, there was no muscle atrophy, and no ankylosis. Joint stability tests indicate that there was no history of recurrent subluxation, lateral instability, recurrent effusion, and the examining physician reported no joint instability. The physician reported that the Veteran did not have, and has not ever had recurrent patellar dislocation, "shin splints", stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The examination report reflects that the Veteran has not had a meniscus condition, and that the Veteran did not use an assistive device as a mode of locomotion. The physician remarked that the history of a hairline fracture could not be verified by the medical documents. A July 2016 disability benefits questionnaire (DBQ) reflects a diagnosis of a right knee meniscal tear from January 2016, with the Veteran reporting flare-ups and that he is unable to walk or stand for more than 30 minutes due to pain during a flare-up. Flexion was reported to 120 degrees, and extension to 160 degrees with the examiner noting that the Veteran's abnormal range of motion did not contribute to functional loss. There was no additional limitation in range of motion with repetitive use testing, but the examiner noted pain with active, passive, and/or repetitive use testing, as well as with weight bearing, or non-weight bearing which contributed to functional loss, or additional limitation of range of motion. The DBQ indicated that the Veteran had medial joint line and lateral joint line tenderness in the right knee. The examiner reported that pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups, or when the joint is used repeatedly over time, but was not able to provide an estimated range of motion during flare-ups or when the joint was used repeatedly over time. The examiner noted no reduction in right knee muscle strength, no muscle atrophy, no recurrent subluxation, lateral instability, or recurrent effusion, and no joint instability. The DBQ reflected that the Veteran had right side shin splints which did not affect the range of motion of his knee, and also a right lateral meniscal tear. Imaging studies indicated that no degenerative or traumatic arthritis was documented, and there was no objective evidence of crepitus. February 2019 VA treatment records indicate that a right knee MRI reflects no evidence of a meniscal tear, or an articular cartilage defect, and the extensor mechanism is intact. An October 2021 DBQ reflects that the Veteran had full range of motion with terminal flexion and extension pain accompanied with crepitus. All ligament structures were reported by the examining physician as intact with no signs of erythema, deformity, or effusion. The physician noted that the pain of chondromalacia patella is aggravated by activity or prolonged sitting with bent knees. The physician also reported that the Veteran suffered from moderate flare-ups occurring 1 to 2 times a week, lasting 1 to 2 hours per event, and indicated that functional loss was noted with prolonged activities requiring walking, standing, hiking, bending, or squatting. The DBQ reflects that the Veteran's right knee disability has stayed the same since its onset, with the Veteran reporting that the chronicity and stability of the symptoms with periodic flare-ups were managed conservatively. The physician noted that the flare-ups were moderate and precipitated by prolonged running, hiking, or squatting. The Veteran did not report a history of instability, recurrent subluxation, or frequent effusion of the knee. Right knee range of motion was normal with flexion to 140 degrees, and extension to 0 degrees, but pain was noted with flexion and extension. Passive range of motion was the same as with active range of motion, and pain was also noted with flexion and extension with passive range of motion. The physician noted pain with weight bearing, non-weight bearing, active, and passive motion. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue at the medial and lateral joint line, which was moderate in severity, and crepitus. No additional loss of function or range of motion was noted after three repetitions, the physician noted that pain, fatigability, and lack of endurance caused functional loss with repeated use over time and during flare-ups, estimating flexion to 120 degrees, and extension to 0 degrees for the right knee after repeated use over time and during flare-ups. The DBQ reflected that the Veteran did not have muscle atrophy of the right knee, no ankylosis, no recurrent subluxation or persistent instability, and no ligament tear. No recurrent patellar instability was reported, the Veteran did not require a prescription for an assistive device for ambulation, and the Veteran did not have recurrent patellar dislocation, shin splints, stress fractures, or any other tibial or fibular impairment. The physician did report that the Veteran had been diagnosed with a meniscus condition, but indicated that there were no current symptoms. The Veteran reported occasional use of a right knee brace. Based on the foregoing, the Board finds that a rating higher than 10 percent for the Veteran's right knee disability is not warranted at any point during the appeal period. In this case while the Veteran has reported constant pain, the October 2015 examination report, and July 2016 and October 2021 DBQs show that the Veteran's right knee range of motion was at or near normal, with flexion between 120 and 140 degrees, and extension to 0 degrees, to include with repetitive use testing, and considering the Veteran's functional impairment during a flare-up. The Board notes that the July 2016 examiner reported right knee extension to 160 degrees, but that appears to have been in error considering the other evidence of record reflects extension to 0 degrees, and that the reported extension exceeds the reported flexion on the examination. The October 2021 DBQ complied with Sharp, supra, because while the Veteran reported flare-ups, the physician was able to describe additional functional loss during a flare-up in terms of range of motion. The DBQs also complied with Correia, supra, because both the right and left knees were tested for pain on both active and passive motion, and in weight-bearing and non-weight-bearing on the July 2016, and October 2021 DBQ. Accordingly, the 10 percent rating contemplates the Veteran's symptoms as a 20 percent rating would require flexion limited to 30 degrees, and extension limited to 15 degrees. Although pain was noted including with weight-bearing, non-weight-bearing, active, and passive motion, the preponderance of the evidence nonetheless supports the conclusion that the Veteran's symptoms most closely approximate the criteria for a 10 percent rating for right knee disability. In this regard, the weight of the evidence shows that even considering the indications of decrease in quality of life due to knee pain, the Veteran's symptoms were not shown to be so disabling to result in limitation of flexion actually, or effectively to 30 degrees or less, or limitation of extension to 15 degrees or greater. Moreover, the DBQs and examination report show that the Veteran did not have ankylosis of the right knee. Thus, a rating higher than 10 percent is not warranted under DC 5260, 5261, or 5256. The evidence of record reflects that the Veteran has had a meniscus condition in his right knee. However, the February 2019 treatment records reflect no evidence of a meniscal tear, the October 2021 DBQ indicates that there are no current symptoms due to a meniscus condition, and the Veteran has not otherwise described any signs or symptoms of a meniscus condition. Additionally, the DBQs and examination report reflect no joint instability, and the Veteran has not otherwise described right knee instability. Thus, the Veteran's right knee disability symptomatology does not more nearly approximate recurrent subluxation or instability, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, or symptomatic removal of semilunar cartilage, therefore, separate ratings under DCs 5257, 5258, and 5259 are not warranted under either the old or revised criteria. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his attorney has raised any other related issues, nor have any other such issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. at 369-70 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). For the foregoing reasons, the preponderance of the evidence reflects that the symptoms of the Veteran's right knee disability do not include or more nearly approximate the criteria for a rating higher than 10 percent under DC 5260 or DC 5261. Therefore, a rating higher than 10 percent for right knee disability is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.