Citation Nr: 21073445 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 12-34 953 DATE: December 8, 2021 ORDER Entitlement to an increased rating in excess of 10 percent disabling for left knee patellofemoral syndrome and tricompartmental degenerative joint disease (left knee disability) from August 17, 2004 to July 8, 2021 is denied. Entitlement to an increased rating in excess of 30 percent disabling for left knee disability from July 9, 2021 is denied. Entitlement to an increased rating in excess of 10 percent disabling for left knee instability from June 2, 2021 is denied. Entitlement to an initial rating in excess of 10 percent disabling for left knee disability on an extra schedular basis prior to July 9, 2021 is denied. FINDINGS OF FACT 1. From August 17, 2004 to July 8, 2021, the Veteran's left knee disability was manifested by no limitation of extension and limitation of flexion to no worse than 120 degrees, even considering painful motion, flare-ups, and other factors. 2. From July 9, 2021, the Veteran's left knee disability was manifested by limitation of extension to no worse than 25 degrees and limitation of flexion to no worse than 45 degrees, even considering painful motion, flare-ups, and other factors. 3. From June 2, 2021, the Veteran's left knee instability was manifested by a patellofemoral complex disorder with recurrent instability with no history of surgical repair nor a prescription requiring the use of a brace, cane, or walker. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 10 percent disabling for service-connected left knee disorder from August 17, 2004 to July 8, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code (DC) 5261. 2. The criteria for entitlement to an increased rating in excess of 30 percent disabling for service-connected left knee disorder from July 9, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code (DC) 5261. 3. The criteria for entitlement to an increased rating in excess of 10 percent disabling for service-connected left knee instability from June 2, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code (DC) 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 to September 1981 and from March 2003 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the rating decision, the Veteran was found service connected for left knee patellofemoral pain syndrome and tricompartmental joint disease with an evaluation of 10 percent effective August 17, 2004. The Veteran timely appealed that decision. After a January 2017 hearing (the transcript is of record), the Board, in June 2018, denied the Veteran's claim for entitlement in excess of 10 percent. The Veteran appealed the June 2019 decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In a June 2019 joint motion for remand, the CAVC remanded the Board's denial of entitlement to a higher initial rating for further development and readjudication. In December 2019, the Board, again, denied entitlement to a higher initial rating and remanded entitlement to an initial rating in excess of 10 percent on an extraschedular basis. The Veteran appealed the Board's December 2019 decision to the CAVC. In an October 2020 joint motion for remand, the CAVC remanded the Board's denial of entitlement to a higher initial rating for further development and readjudication. Also, in October 2020, the RO denied entitlement to an initial rating in excess of 10 percent for the service-connected left knee patellofemoral pain syndrome on an extraschedular basis. Additionally, the issue of entitlement on an extraschedular basis was denied by the Director in October 2020. The Board remanded both issues again in March 2021 to obtain new VA examinations. The Board finds that VA substantially complied with the remand instructions and that the issues are properly before the Board for adjudication. Increased Rating 1. Left Knee Disability Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. § 4.14, 4.40, 4.45; Johnson v. Brown, 9 Vet. App. 7 (1996). During the pendency of the appeal, the criteria for rating musculoskeletal disabilities were changed, effective on February 7, 2021. 85 Fed. Reg. 76,453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The February 2021 changes to the rating criteria for the knee pertain to Diagnostic Code (DC) 5257 (instability) and DC 5262 (impairment of the tibia and fibula). The rest of the rating criteria for the knee are unchanged. DC 5262 is not relevant to this appeal. Separate ratings may be assigned for limitation of flexion and limitation of extension and instability of the same knee. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005); 38 C.F.R. § 4.14; VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994). For VA compensation purposes, normal flexion of the knee is to 140 degrees, and normal extension is to zero degrees. 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees; 10 percent, flexion limited to 45 degrees; 20 percent, flexion limited to 30 degrees, and; 30 percent, flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a noncompensable rating is warranted for extension limited to 5 degrees;10 percent, limitation of extension to 10 degrees. A rating of 20 percent is warranted for extension to 15 degrees; 30 percent, extension to 20 degrees; 40 percent to 30 degrees, and; 50 percent, extension to 45 degrees. 38 C.F.R. § 4.74a, DC 5261. Under the older version of DC 5257, a 10 percent rating is available for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under the revised version of DC 5257, for recurrent subluxation or lateral instability, a 30 percent rating is assigned for 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. A 20 percent rating is assigned for one of the following: (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; (b) 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. A 10 percent rating is assigned for 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. 38 C.F.R. § 4.71a, DC 5257 (2021). In cases of patellar instability, a 30 percent rating is warranted for 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. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 10 percent rating is warranted for 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. Under Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Per Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). Under DC 5259, symptomatic removal of the semilunar cartilage warrants a 10 percent rating. 38 C.F.R. § 4.71a. The current evaluation of the Veteran's left knee disability includes separate ratings under multiple diagnostic codes. The Veteran's right knee is not service connected. The Veteran's left knee is rated under DC 5261 at 10 percent disabling from August 17, 2004 and at 30 percent disabling from July 9, 2021. The Veteran's left knee is also rated under DC 5257 for instability at 10 percent disabling from June 2, 2021. In a November 2004 VA treatment record, the examiner noted that the Veteran had a history of left knee pain and swelling and that he had slight effusion without laxity during the examination. A January 2005 VA treatment record reported that the Veteran had crepitus and complained of pain six out of ten. The examiner furthered that the Veteran was having less pain since doing the exercises with his knee and that he had good stability and no effusion. The examiner noted that the Veteran probably had a patella femoral problem. VA treatment records from March 2009 reflected the MRI results that showed that the Veteran had tricompartmental osteoarthritis, chondromalacia patella, and small joint effusion in his left knee. The March 2010 VA examination reflected the Veteran's statements regarding ongoing knee pain and swelling since service which required the use of anti-inflammatory medication. The examiner noted imaging studies dated in November 2004 that reflected degenerative joint disease of the left knee. The Veteran reported daily flare-ups due to prolonged weight-bearing, bending, running, and/or jumping. He described his flare-ups as increased pain and swelling, which was alleviated by Ibuprofen. Physical examination revealed an observable limp on the left knee. Range of motion (ROM) testing measured flexion to 120 degrees and extension to zero degrees. The examiner noted significant crepitus throughout ROM testing. Similar findings were noted after repetitive-use testing. There was no additional functional loss noted due to pain, weakness, fatigue, lack of endurance, or incoordination. Imagining studies, i.e., x-rays, were performed and revealed mild degenerative changes without evidence of fracture, dislocation, or significant effusion. Joint stability tests were performed and found to be negative for any subluxation or lateral instability of the joints. The Veteran was diagnosed with patellofemoral pain syndrome and degenerative joint disease of the left knee. In the January 2017 Board hearing, the Veteran reported that his knees would usually swell up the most at night, but would get better the next day and that he took medication for it. He also reported that when he worked for Special Operations, he would receive an extra 230 dollars, but because of his knee problems he had to leave Special Operations back to his normal job. He also explained that he usually toughed out his knee problems while at work. The November 2017 VA examination reflected the Veteran's statements regarding ongoing symptoms of pain and swelling in the left knee. The Veteran further reported flare-ups resulting in increased pain and swelling. ROM testing measured flexion to 140 degrees and extension to zero degrees with pain. The examiner noted crepitus throughout ROM testing. ROM after repetitive-use testing and/or flare-ups measured flexion to 120 degrees and extension to zero degrees with pain. The examiner indicated that the ROM measurements provided account for functional loss due to pain in accordance with 38 C.F.R. § 4.59. There was no additional functional loss noted due to weakness, fatigue, lack of endurance, or incoordination. Physical examination revealed no ankylosis, instability, tibial and/or fibula impairment, or impairment of the semilunar cartilage. Imaging results in June 2018 reflected that no acute fracture was identified, but that the Veteran had mild to moderate degenerative joint disease of the left knee with joint space narrowing and marginal spurring significantly involving the medial tibiofemoral compartment. The examiner noted that the generative changes have mildly progressed since the prior study in 2008, but that there was no significant joint effusion. In the June 2021 VA examination, the Veteran reported that he continued to have knee pain and that he could not do any prolonged standing, running, or climbing and that his knees gave out unexpectantly. He furthered that he had to take a pay cut since he could not pass a physical training test due to problems with running. The Veteran reported that he experienced flare-ups in his left knee and explained that he was unable to stretch his leg out completely when he has them since the joint felt like two rocks rubbing together. He also reported that when he would bend his knee it would feel like sandpaper rubbing the joints and that his knee would feel bruised at the end of the day. He furthered that he experienced them daily for about 10 hours and that weight bearing caused them. He explained that he could not walk or sit during a flare-up. The Veteran furthered that if he sat for more than 30 minutes his knees would hurt, that he could not run or climb, and that he could not stand more than three minutes without pain in his knees. The Veteran also reported that he had a history of instability and explained that if he went up some steps his knees would give out or lock sometimes. He also reported that his left knee would swell up mostly on workdays. The examiner noted that the Veteran's ROM itself contributed to a functional loss. Active ROM measurements reflected flexion ending at 60 degrees and extension ending at zero degrees. Pain was noted with flexion. Passive ROM was the same as active ROM with pain noted with flexion. There was evidence of pain with weight-bearing, active and passive motion, and the pain caused a functional loss. There was objective evidence of crepitus, but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive-use testing with at least three repetitions but did experience additional loss of ROM due to pain. Flexion was limited to 50 degrees and extension was limited to zero degrees. The Veteran was not examined immediately after repeated use over time or during a flare-up, but the examiner noted that procured evidence suggested pain significantly limited the Veteran's functional ability with repeated use over time and during a flare-up. The examiner provided an estimated ROM for the joint immediately after repeated use over time and during a flare-up, showing flexion limited to 45 degrees and extension limited to zero. The Veteran did not have muscle atrophy or any ankylosis. The examiner noted that there was recurrent subluxation or persistent instability, and that the Veteran did have recurrent patellar instability, but that he did not have surgical repair of the knee for patellar instability or require a prescription for ambulation with patellar instability. The examiner furthered that the Veteran was not diagnosed with a recurrent patellar dislocation, shin splints, stress fractures, or any other tibial or fibular impairment and that he had never been diagnosed with a meniscus disorder. The Veteran reported that he occasionally used a cane for his left knee. The examiner opined that the Veteran's knee disorder impacted his ability to perform occupational tasks. In the July 2021 VA examination, the Veteran reported that his left knee disability had gotten worse with increased pain and decreased ROM. He furthered that it was getting harder and more painful to walk and stand for long periods of time. The Veteran did not report any flare-ups of his knee, but did report having some functional impairment like not being able to do squats, exercise, jump and having difficulty with climbing stairs. He furthered that he had to sit with his leg straight to reduce or prevent any pain. He furthered that the pain increases with standing still and that he was unable to walk for long distances or long periods. The Veteran did not report having a history of instability or recurrent subluxation, but that he did have left knee swelling. Upon physical examination, the examiner noted that the Veteran's ROM itself contributed to a functional loss. Active ROM reflected flexion limited to 130 degrees and extension limited to 20 degrees with pain noted on both flexion and extension. Passive ROM was the same as active ROM. There was evidence of pain with weight and non-weight bearing, active and passive motion, on rest or non-movement, but it does not result in or cause functional loss. The examiner furthered that there was objective evidence of crepitus and objective evidence of pain upon palpation and passive ROM. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM. The Veteran was not examined immediately after repeated use over time, but the examiner was able to use procured evidence to suggest that pain significantly limited the Veteran's functional ability with repeated use over time. The estimated ROM was flexion limited to 115 degrees and extension was limited to 25 degrees. Since the Veteran denied having flare-ups, no estimation regarding any functional loss during a flare-up could be made. The Veteran did not have any muscle atrophy, ankylosis, recurrent subluxation, persistent instability, patellar instability, or have a ligament tear. The Veteran never was diagnosed with a recurrent patellar dislocation, shin splints, stress fractures, or any other tibial or fibular impairment. Additionally, the Veteran was never diagnosed with a meniscus disorder. The Veteran reported that he regularly used a brace or his left knee disability. The examiner opined that the Veteran's knee disability impacted his ability to perform occupational tasks since he has pain in his knee and knows that if one of the inmates tried to run he would not be able to run after him. After careful review of the evidence, the Board determines that increased ratings are not warranted for the Veteran's left knee disability. The Board finds from August 17, 2004 to July 8, 2021, the Veteran left knee disorder approximated limitation of extension to no worse than zero degrees and limitation of flexion to no worse than 120 degrees. The Veteran experienced painful motion upon flexion. Thus, the ten percent rating is appropriate. Further, from July 9, 2021, the Veteran's left knee had limitation of extension to no worse than 25 degrees and had limitation of flexion to no worse than 45 degrees, thus the current 30 percent rating is appropriate for this period. Moreover, regarding the Veteran's left knee instability that was service-connected effective June 2, 2021, the evidence shows that the Veteran has a disorder involving the patellofemoral complex with recurrent instability and no history of surgical repair that does not require a prescription from a medical provider for a brace, cane, or walker. Thus, the Veteran's current 10 percent disability rating is appropriate and cannot have a higher disability rating since the Veteran has never had any surgical repair done on his left knee. A separate rating under Diagnostic Code 5258 for dislocation of the semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint is not warranted. While the Board acknowledges lay statements reporting feelings of the left knee "locking" and swelling, and while the Veteran is competent to report observable left knee symptoms such as feelings of "locking" and pain, he is not competent to attribute such symptoms to dislocation of the semilunar cartilage because this requires specialized medical expertise, experience, and training. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The evidence of record indicates no dislocations of semilunar cartilage of the left knee. Thus, a separate rating under Diagnostic Code 5258 is inappropriate. Similarly, because there is no evidence of removal of the semilunar cartilage in the left knee, a separate rating under Diagnostic Code 5259 is not warranted. Moreover, since there is no evidence of any ankylosis, a separate rating under Diagnostic Code 5256 is not warranted. The Board has also considered whether an increased extraschedular rating for the Veteran's left knee is warranted. See 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires the Board to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. Thun step one is not a "mechanical test;" thus, it is not automatically satisfied just because a certain symptom or functional effect is not expressly listed in a diagnostic code. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2016) (holding that the rating criteria for hearing loss contemplated the full range of symptoms related to decreased hearing, even though the diagnostic code failed to list any symptoms but relied solely on audiometric tests). If the Board determines that a Veteran's disability is exceptional, the second element requires the Board to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Long v. Wilkie, 33 Vet. App. 167 (2020). Finally, if the first two elements are met, the final element mandates that the Board refer the claim to the Director of Compensation Service (Director) for a determination as to whether an extraschedular rating is warranted. Id.; see also 38 C.F.R. § 3.321(b). The Board finds that the Veteran's left knee disability is not exceptional. The Board has considered the facts of this case and whether the Veteran's disability picture as a whole (i.e., full symptomatology) presents an impairment that is so exceptional that the rating schedule is not capable of assessing it in the first instance. The discussion above reflects that the symptoms of the Veteran's left knee disability, to include pain on movement, are fully contemplated by the applicable rating criteria and he is separately rated for other manifestations of the left knee disability, rated as instability. The Board notes that pain is contemplated in the rating criteria for all musculoskeletal disabilities, and it does not need to be identified in each individual code to indicate its inclusion. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that § 4.59 applies to "joint pain in general" and is not limited to joint pain due to arthritis). Because the left knee disability is capable of evaluation by conventional means, it cannot be deemed exceptional. Moreover, the Director of Compensation Service submitted an opinion regarding whether the Veteran was entitled to an extraschedular increased rating for his left knee in October 2020. The opinion stated that based on the evidence of record there was no factual demonstration of impairment in or of earning capacity due to exceptional or unusual factors related to marked interference with employment or frequent periods of hospitalization for the Veteran's left knee patellofemoral pain syndrome. It then stated that entitlement to an extra-schedular rating for left knee patellofemoral pain syndrome was denied. As such, the Board finds that the rating criteria is adequate to evaluate the Veteran's left knee disability and the Director of Compensation Service reiterated the Board's thoughts in stating that there was no exceptional or unusual factors related to the Veteran's employment or frequent periods of hospitalization due to the Veteran's left knee disability. As the preponderance of the evidence is against assignment of any further increased and/or additional ratings in this case, the benefit of the doubt rule is not applicable and the appeal as to these claims must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.