Citation Nr: 21073793 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 04-19 941 DATE: December 10, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for iliotibial band syndrome, left lower extremity, is denied. A separate compensable evaluation for left knee instability is denied. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran's iliotibial band syndrome, left lower extremity, has manifested as pain resulting in functional loss. 2. The Veteran's left knee disability is not manifested by instability. CONCLUSIONS OF LAW 1. The criteria for an initial increased evaluation in excess of 10 percent for iliotibial syndrome, left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for a separate compensable evaluation for left knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.14, 4.21, 4.40, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1965 to November 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by an Agency of Original Jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). The Veteran appealed the decision to the United States Court of Appeals for Veterans' Claims (Court). In January 2019, the Court granted a Joint Motion for Partial Remand (JMPR) which vacated the portion of the Board's April 2018 decision which denied the Veteran's claim for an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD), prior to December 9, 2008, and in excess of 50 percent thereafter, and for an initial evaluation in excess of 10 percent for his iliotibial band syndrome, left lower extremity to include entitlement to a separate evaluation for instability of the left knee. In a September 2019 decision, the Board granted a 50 evaluation, but no higher, for PTSD for the entire period on appeal. Additionally, the Board remanded the issue of entitlement to an initial increased evaluation in excess of 10 percent for his iliotibial band syndrome, left lower extremity to include entitlement to a separate evaluation for instability of the left knee for additional development. Duty to Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 - 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahuna v. Shinseki, 24 Vet. App. 428, 435 (2011). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. The intent of the rating schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. VAOPGCPREC 9-98. There are numerous Codes which are potentially applicable to evaluation of knee disabilities. The Board notes that the rating criteria for musculoskeletal disorders were revised on February 7, 2021. The amended regulations became effective on February 7, 2021 and claims that were pending on this date must be considered under the former and revised criteria with the most favorable version applied to the claim. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (now codified at 38 C.F.R. § 4.71a, Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262). Code 5256 is utilized for evaluation of ankylosis or the functional equivalent; as there is motion of the left knee, this Code is not applicable here. Code 5257 evaluates disabilities of the knee based on the degree of subluxation and instability of the joint. Under the former criteria, a 10 percent evaluation is assigned for slight, recurrent subluxation or lateral instability of the knee. A 20 percent evaluation is assigned for moderate recurrent subluxation or lateral instability of the knee. A 30 percent evaluation is assigned for severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a, Code 5257. Pursuant to the new criteria, Code 5257, recurrent subluxation, or lateral instability, assigns a 10 percent evaluation 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. A 20 percent evaluation is assigned for either (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; or (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 30 percent evaluation 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. 38 C.F.R. § 4.71a, Code 5257 (Effective February 7, 2021). Additionally, pursuant to the new criteria for Code 5257, a 10 percent evaluation is assigned for patellar instability when the condition is diagnosed and involves the patellofemoral complex with recurrent instability (with or without a history of surgical repair) that does not require a prescription from a medical provided for a brace, cane, or walker. A 20 percent evaluation is assigned for diagnosed patellar instability involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provided for one of the following: a brace, cane, or walker. A 30 percent evaluation is assigned for a diagnosed patellofemoral instability 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. Note (1) to Code 5257 for patellar instability, defines the patellofemoral complex as consisting of the quadriceps tendon, the patella, and the patellar tendon. Note (2) specifies that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to 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, Code 5257 (Effective February 7, 2021). Code 5258 assigns a 20 percent evaluation for dislocated semilunar cartilage with frequent episodes of "locking" pain, and effusion into the joint. 38 C.F.R. § 4.71a, Code 5258. Code 5259 assigns a 10 percent evaluation for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Code 5259. For limitation of motion, there are two potentially applicable Codes; the rating criteria for these codes were unaffected by the new regulations. Code 5260 assigns evaluations based on limitation of flexion. Limitation to 60 degrees merits a noncompensable, or 0 percent, evaluation. A 10 percent evaluation is assigned for limitation to 45 degrees. Limitation to 30 degrees flexion warrants a 20 percent evaluation, and a 30 percent evaluation is assigned for limitation to 15 degrees of flexion. 38 C.F.R. § 4.71a, Code 5260. Limitation of extension is rated under Code 5261. Limitation to 5 degrees merits a noncompensable, or 0 percent, evaluation. A 10 percent evaluation is assigned for limitation to 10 degrees. Limitation to 15 degrees extension warrants a 20 percent evaluation. A 30 percent evaluation is assigned for limitation to 20 degrees of extension. A 40 percent evaluation is assigned for extension limited to 30 degrees. A 50 percent evaluation is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Code 5261. Under the former criteria for Code 5262, tibia and fibula, impairment of, a 10 percent disability evaluation is assigned for malunion of with slight knee or ankle disability. A 20 percent disability evaluation is assigned for malunion with moderate knee or ankle disability. A 30 percent evaluation is assigned for malunion with marked knee or ankle disability. A 40 percent evaluation is assigned for nonunion of the tibia and fibular with loose motion, requiring brace. 38 C.F.R. § 4.71a, Code 5262. Pursuant to the new criteria for Code 5262, for medial tibial stress syndrome (MTSS), or shin splints, a noncompensable evaluation is assigned for treatment for less than 12 consecutive months, one or both lower extremities. A 10 percent evaluation is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent evaluation is assigned for symptoms requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent evaluation is assigned for symptoms requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Malunion of tibia and fibula is evaluated under Codes 5256, 5257, 5260, or 5261 for the knee, of 5270 or 5271 for the ankle whichever results in the highest evaluation. Nonunion of tibia and fibula with loose motion, requiring brace is assigned a 40 percent evaluation. 38 C.F.R. § 4.71a, Code 5262 (Effective February 7, 2021). The Veteran is seeking an increased evaluation in excess of 10 percent for iliotibial band syndrome, left lower extremity. The Veteran's iliotibial band syndrome left lower extremity is currently evaluated under Code 5260, for limitation of flexion of the leg. The Veteran underwent a VA examination in May 2009. The VA examiner noted the Veteran's diagnosis of left lower extremity iliotibial band syndrome. Subjective complaints include constant left leg pain that extends from his knee to his waist. Pain is worse with any steps/walking. He states that the pain is constant and worsens with activity. Symptoms included giving way, stiffness, pain, weakness, redness, swelling, and tenderness. Locking episodes were reported as occurring one to three times per month. The Veteran reported that he was unable to walk more than a few yards and intermittent but frequent use of a cane. Physical examination revealed crepitus, tenderness of the left knee with clicks or snaps. There was no grinding, no instability, no patellar abnormality, no meniscus abnormality, and no abnormal tendons or bursae. Active range of motion of the left knee was flexion to 90 degrees with objective evidence of pain, and normal extension. There was objective evidence of pain following repetitive motion with no additional limitations after three repetitions of range of motion. There was no evidence of joint ankylosis. Right knee flexion was from 0 to 110 degrees and extension was normal. The Veteran reported that his left iliotibial band syndrome prevented him from doing chores, exercise, and sports, had a moderate impact on his ability to shop, had a severe impact on his ability to travel and drive and had a mild impact on recreation and his activities of daily living. An initial disability evaluation of 10 percent was assigned based on the findings of this examination. The Veteran underwent a VA knee and lower leg conditions examination in August 2012. The Veteran's diagnosis of iliotibial band syndrome was noted. Subjective complaints included pain, numbness, and fatigue in the left leg between the hip and the knee. Flare-ups were reported and described as developing weakness in the left knee and falling when pain occurs. Range of motion of the right knee was flexion to 130 degrees with no objective evidence of pain and extension to 0 degrees with no objective evidence of pain. Range of motion of the left knee was flexion to 130 degrees with no objective evidence of pain and extension to 0 degrees with no objective evidence of pain. Repetitive use testing resulted in no additional limitation of range of motion in either knee. Repetitive use testing resulted in contributing factors of functional loss or functional impairment manifested as less movement than normal in both knees. No pain on palpation or tenderness to the joint was noted in either knee. Muscle strength test results were 5 out of 5 in both knees. Joint stability test results were normal in both knees. There was no evidence or history of recurrent patellar subluxation or dislocation in either knee. The Veteran had shin splints bilaterally which were stable at the time of the examination. The Veteran was not using any assistive devices as a normal mode of locomotion. In the JMPR, the parties agreed that neither the May 2009 nor the August 2012 examinations properly addressed where along the Veteran's range of motion pain set in, or whether there was additional functional loss caused by flare-ups as a result of pain. The examinations were found to be inadequate for adjudication purposes and the parties determined a remand for a new examination was needed. Additionally, the parties agreed that the Board failed to provide adequate reasons and bases in considering whether a separate evaluation for left knee instability was warranted. Since the Board's decision was issued, in English v. Wilkie, the Court held that the Board is required to provide an adequate statement of reasons or bases in considering the probative weight assigned to both the lay statements of instability and the objective evidence of stability testing. English v. Wilkie, 30 Vet. App. 347 (2018). The parties agreed that, on remand, the Board was to provide an adequate statement of reasons or bases consistent with English in discussing whether a separate rating under Code 5257 is warranted. The Veteran underwent a VA knee and lower leg conditions examination in January 2020. The VA examiner noted the Veteran's diagnoses of iliotibial band syndrome left lower extremity and right lower extremity and noted effusion of the left knee. Subjective complaints included mild left leg pain that increases with activity such as with any steps or walking; locking of the left knee and it gives way, stiffness, and weakness. The Veteran reported that he falls a couple times a week especially if ascending/descending stairs. His right lower extremity symptoms are mild pain and some weakness. He reported bilateral numbness and tingling. Instability of the bilateral lower extremities was greater in left than right. He stated that he must use a cane constantly. Immediate standing or walking causes pain in bilateral extremities; sitting more than 2 minutes causes stiffness and pain bilaterally. The Veteran reported taking ibuprofen and/or aspirin on an as needed basis for pain. He did not report experiencing flare-ups of the knee or lower leg. Functional loss and or functional impairment was described as locking of the left knee and it gives away, stiffness, and weakness so much that he falls ascending and descending stairs, instability left greater than right, constant use of cane, pain on standing and walking, and stiffness after sitting more than two minutes. Range of motion of the right knee was flexion from 0 to 130 degrees and extension from 130 to 0 degrees. Pain was noted on examination and caused functional loss. Range of motion of the left knee was flexion from 0 to 130 degrees and extension from 130 degrees to 0 degrees. Range of motion contributed to functional loss as locking of the left knee, knee giving way, stiffness, and weakness. Objective evidence of crepitus and of pain with weight bearing was noted. Veteran falls a couple times a week as described above. Pain was noted on examination and caused functional loss. Objective evidence of dull achy non-radiating tenderness to palpation and swelling 1 to 2+ was noted in joint spaces. Pain was described as an 8 out of 10 in severity. Repetitive use testing did not result in additional loss of function or range of motion. The Veteran denied experiencing flare-ups. Additional contributing factors of disability include disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength was 4 out of 5 in the right knee and 3 out of 5 in the left knee. No muscle atrophy nor ankylosis was present. No history of recurrent subluxation, lateral instability or recurrent effusion was noted. Joint stability testing revealed no joint instability in the left knee. The VA examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The Veteran was noted to have bilateral shin splints which did not affect range of motion of his knees. The VA examiner noted the Veteran's constant use of a cane as a normal mode of locomotion. The VA examiner noted objective evidence of pain on passive range of motion testing and on non-weight bearing for both knees. Iliotibial Band Syndrome, Left Knee The Veteran seeks an increased initial evaluation in excess of 10 percent for his for iliotibial band syndrome. The evidence does not show, at any time during the appellate period, that the Veteran's symptoms meet the criteria for a 20 percent rating pursuant to Code 5260 because the flexion of the Veteran's left knee is not limited to 30 degrees. Even with consideration of the DeLuca factors, the Veteran's knee flexion is not limited to 30 degrees. Range of motion was limited to 90 degrees, at most, with functional impairment due to pain and lack of endurance noted at the May 2009 VA examination. At both his August 2012 and January 2020 VA examinations flexion was limited to no worse than 130 degrees with pain noted on flexion. Therefore, the currently assigned 10 percent disability rating for the left knee contemplates the Veteran's diagnosed condition and functional limitations and compensates him for such. See DeLuca. Accordingly, entitlement to a rating in excess of 10 percent for the Veteran's iliotibial band syndrome, left knee is not warranted. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher rating. 38 C.F.R. §§ 4.7, 4.21. Thus, the Board finds that the evidence of record is consistent with the 10 percent disability evaluation previously assigned for the Veteran's left knee disability and adequately compensates him for his symptoms. Left Knee Instability As discussed above, in the JMPR, the parties agreed that the Board failed to provide adequate reasons and bases for its determination that the Veteran was not entitled to a separate disability evaluation for left knee instability. Specifically, the Board cited the absence of documented medical findings, but did not address the Veteran's lay statements regarding stability. English v. Wilkie, 30 Vet. App. 347 (2018). After a careful review of the medical records, the Board find the Veteran is not entitled to a separate 10 percent evaluation pursuant to Code 5257 for instability of his left knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran has complained of giving way and instability of his left knee. At his July 2009 hearing, the Veteran testified he was using a cane to assist with ambulation. At his January 2020 VA examination it was noted that he required the use of a cane for locomotion, though such appears related to his lower extremity conditions generally. However, the clinical findings of VA examiners reveal no instability or laxity of the left knee. VA treatment records contain no complaints of giving way or instability, and no prescription for any assistive device related to the knee. The Veteran is generally competent to report the symptoms of his left knee, including instability and giving way. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, however, his complaints in connection with the adjudication of compensation benefits are contradicted by the objective medical evidence. Moreover, while the Veteran is competent to report he uses a cane, and that he has experienced falls as documented in the treatment records, he is not competent in this case to report the reason for such. Medical records do not associate such with the knee; falls are documented, but are associated with the lower extremities generally. Hand rails were provided at the Veteran's home entrances. The Veteran also has peripheral neuropathies of the lower extremities, hypertension, diabetes, and coronary artery disease, all of which potentially impact locomotion or balance, and could require an assistive device. In 2021, he was given a rollator walker to assist with ambulation, as he grew fatigued with movement. The knee is not cited in the justification. The Board has considered whether instability may arise with extended use or on flare-ups. However, given the absence of any physical findings of laxity and the fact that treatment records do not show any reports or complaints of such under the ordinary condition of life, a negative finding is warranted. In short, the preponderance of the lay and medical evidence of record is against a finding of left knee instability, and no separate evaluation is warranted. The Board has considered the potential applicability of other diagnostic criteria for rating the Veteran's left knee but finds that an evaluation under Code 5258 or 5259 is not appropriate as the Veteran has no meniscal damage and has made no allegations of meniscal damage. Additionally, review of the medical evidence of record shows there is no pathology to support assignment of a disability evaluation based on meniscal damage or injury, and there are no persistent complaints of symptoms associated with such. Similarly, an evaluation under Code 5256 is not appropriate as there is no ankylosis, nor under Code 5261 as there is no limitation of extension. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger, 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.