Citation Nr: 21075587 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-32 260A DATE: December 20, 2021 ORDER A disability rating in excess of 10 percent for right knee patellofemoral syndrome is denied. A disability rating in excess of 10 percent for left knee patellofemoral syndrome is denied. From July 30, 2010, a separate 10 percent rating for right knee instability is granted. From July 30, 2010 to January 24, 2018, a separate 10 percent rating for left knee instability is granted. From January 24, 2018, a disability rating in excess of 20 percent for left knee instability is denied. FINDINGS OF FACT 1. The Veteran's right knee patellofemoral syndrome has been characterized by painful flexion, flexion limited to 70 degrees, at worst, and extension limited to 5 degrees. 2. The Veteran's left knee patellofemoral syndrome has been characterized by painful flexion and flexion limited to 75 degrees, at worst. 3. Since July 30, 2010, the Veteran's right knee disability has produced mild instability. 4. From July 30, 2010 to January 24, 2018, the Veteran's left knee disability produced slight instability. 5. From January 24, 2018, the Veteran's left knee disability has produced moderate instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right knee patellofemoral syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5024. 2. The criteria for a disability rating in excess of 10 percent for left knee patellofemoral syndrome have not been met. 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5024. 3. As of July 30, 2010, the criteria for a separate rating of 10 percent, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 4. For the period from July 30, 2010 to January 24, 2018, the criteria for a separate rating of 10 percent, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 5. From January 24, 2018, the criteria for entitlement to a rating in excess of 20 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 2003 to June 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. These matters were previously before the Board in April 2018, July 2020, and June 2021. Each time, they were remanded for a VA examination. The Board finds that there has been substantial compliance with its remand instructions, and further appellate review is warranted. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that further remand not necessary under Stegall where the Board's remand instructions were substantially complied with). Increased Rating for Right and Left Knee Patellofemoral Syndrome Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation 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. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran's right and left knee patellofemoral syndrome has been evaluated as 10 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5299-5024. Hyphenated DCs are used when a rating under one DC (5299) requires the use of an additional DC to identify the basis for the rating assigned (DC 5024). The provisions of 38 C.F.R. § 4.27 provide that when an unlisted disability requires rating by analogy, the code will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the body part or system involved, and the last two digits will be "99." Here, the hyphenated DC indicates that an unlisted condition involving the knee (DC 5299) is rated under the criteria for tenosynovitis (DC 5024). See 38 C.F.R. § 4.20. DC 5024 directs the rater to evaluate the disability based on limitation of motion of the affected parts. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, neither of the DCs evaluating limitation of motion of the knee were changed. Limitation of flexion is evaluated based on DC 5260. Under DC 5260, a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Limitation of extension is evaluated based on DC 5261. Under DC 5261, a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent rating is assigned for extension limited to 15 degrees; a 30 percent rating is assigned for extension limited to 20 degrees; a 40 percent rating is assigned for extension limited to 30 degrees; and a 50 percent rating is assigned for extension limited to 45 degrees. Painful joints are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Turning to the evidence, the Veteran underwent a VA examination in July 2010. At this time, the Veteran reported knee popping and grinding as well as daily pain. The examiner summarized the symptoms of the Veteran's bilateral knee disability as including giving way, instability, pain, stiffness, weakness, decreased speed of joint motion, locking, and tenderness. Such symptoms impacted the Veteran's ability to climb stairs, tolerate prolonged standing, walk more than one mile, and run. The examiner's clinical findings included bilateral crepitus but no instability, no patellar abnormality, and no meniscus abnormality. On range of motion of motion testing, the Veteran's right and left knee flexion were to 130 degrees and he had full extension. There was objective evidence of painful motion and pain following repetitive motion bilaterally. However, there was no additional limitation of range of motion following three repetitions. The Veteran underwent a second VA examination in June 2013. On initial range of motion testing, the Veteran's right knee had flexion to 140 degrees and full extension, and there was no evidence of painful motion. The Veteran's left knee had flexion to 140 degrees and full extension, and there was evidence of painful motion beginning at 110 degrees of flexion. The Veteran was able to perform repetitive-use testing with at least three repetitions and no loss of function or range of motion. There was on pain on palpation to both knees. Joint stability testing produced normal results bilaterally and there was no evidence or history of recurrent patellar subluxation or dislocation. There was no noted tibial or fibular impairment and no meniscal conditions. The Veteran denied the use of assistive devices. In January 2015, the Veteran underwent another VA examination. The Veteran reported that it felt like his knees were going to hyperextend, he experienced popping in the morning, and he had pain with standing. The Veteran denied flare-ups. On initial range of motion testing, the Veteran's right and left knees had flexion to 125 degrees and full extension. The examiner noted that 125 degrees of flexion was normal for the Veteran's habitus and conditioning. There was no pain noted on examination and no evidence of pain with weight bearing or on palpation. The Veteran was able to perform repetitive-use testing with at least three repetitions and no additional loss of function or range of motion. The examiner declined to comment on functional loss of range of motion following repeated use over time. The Veteran exhibited normal muscle strength and there was no muscle atrophy or ankylosis bilaterally. The Veteran's joint stability testing produced normal results and there were no tibial, fibular, or meniscal impairments. The examiner did not note the use of any assistive devices. In August 2016, the Veteran's bilateral knee disabilities were once again evaluated. At this time, the Veteran reported worsened pain with prolonged sitting and standing as well as loud and painful popping noises. The Veteran reported flare-ups that he described as swelling with radiating pain. The Veteran's disabilities interfered with his ability to tolerate prolonged standing or walking. On initial range of motion testing, the Veteran's right knee had flexion to 110 degrees and full extension. His left knee had flexion to 90 degrees and full extension. The examiner noted pain on both flexion and extension and pain with weight bearing bilaterally. There was no evidence of localized tenderness or crepitus in either knee. Following repetitive-use testing with at least three repetitions, the Veteran's right knee flexion was to 90 degrees and his left knee flexion was to 85 degrees. The examiner noted that pain and lack of endurance caused the lost range of motion. The Veteran was not examined following repeated use over time, but the examiner estimated that his right knee flexion would be limited by pain and lack of endurance to 85 degrees and his left knee flexion would be limited to 80 degrees. The Veteran was not examined during a flare-up, but the examiner estimated that his right knee flexion would be limited by pain and lack of endurance to 80 degrees and his left knee flexion would be limited to 75 degrees. The Veteran had normal joint stability tests bilaterally and there were no noted tibial, fibular, or meniscal conditions. The Veteran underwent another VA examination in October 2016. The examiner noted that the Veteran denied flare-ups or functional loss following repeated use over time. Range of motion testing showed flexion to 130 degrees and full extension bilaterally. There was no pain noted on examination, no pain with weight bearing, and no pain to palpation of the bilateral knees. The Veteran was able to perform repetitive use testing with at least three repetitions and no functional loss or loss of range of motion. The Veteran exhibited normal muscle strength and there was no history of recurrent subluxation or lateral instability. The Veteran's joint stability tests produced normal results bilaterally. In January 2021, the Veteran appeared for a VA examination. At this time, the Veteran reported increased pain with prolonged standing and walking as well as locking, catching, swelling and pain to palpation. The Veteran reported an inability to maneuver steps and curbs and feelings of instability bilaterally. On initial range of motion testing, the Veteran's right knee flexion was to 80 degrees and his extension was to 0 degrees. There was pain on both flexion and extension as well as evidence of pain with weight bearing, nonweight bearing, active motion, and passive motion. There was also evidence of crepitus and pain to palpation. The left knee exhibited flexion to 90 degrees and extension to 0 degrees. There was pain on both flexion and extension as well as evidence of pain with weight bearing, nonweight bearing, active motion, passive motion, and rest/non-movement. There was also evidence of crepitus and pain to palpation. The examiner further noted there was soft tissue swelling of both knees. Following repetitive-use testing with at least three repetitions, the Veteran's right knee flexion was to 70 degrees and his left knee flexion was to 80 degrees. The examiner noted that pain, fatigability, weakness, lack of endurance and incoordination all contributed to the reduced range of motion. There was no noted muscle atrophy, ankylosis, tibial impairment, fibular impairment, or meniscal conditions. However, the examiner noted that the Veteran uses a cane and bilateral braces for ambulation, and he indicated that there was bilateral recurrent patellar instability. Most recently, the Veteran's bilateral knee disabilities were evaluated in October 2021. At this time, the Veteran reported worsening pain and stiffness. The Veteran described the functional impairment resulting from his disabilities as an inability to run or be active and an inability to tolerate prolonged standing, walking, or sitting. The Veteran reported left knee buckling and episodes of weakness in which he feels like the knee will give out. He further reported a history of frequent effusion. On initial range of motion testing, the Veteran's right knee flexion was to 120 degrees and his left knee flexion was to 110 degrees. Both knees had full extension. There was no evidence of pain with weight bearing, nonweight bearing, active motion, or passive motion. There was no evidence of crepitus or localized tenderness on the right knee but both symptoms were present in the left knee. There was no additional loss of function or range of motion following repetitive-use testing with at least three repetitions. The Veteran was not examined following repeated use over time, but the examiner estimated that pain limited the Veteran's right knee to 115 degrees of flexion and 5 degrees of extension following repeated use over time. For the left knee, the examiner estimated that pain and weakness limited the knee's flexion to 105 degrees and extension to 0 degrees. There was no noted muscle atrophy, ankylosis, patellar dislocation, tibial impairment, fibular impairment, or meniscal condition. There was no recurrent subluxation or persistent instability in the right knee, but such symptoms were present in the left knee. The examiner noted the Veteran's use of a left knee brace and his slight left knee patellar instability. Treatment records from this time show that the Veteran reported bilateral knee pain, swelling and some crepitus but generally exhibited good flexion and extension. There are also documented reports of the left knee buckling as well as both knees giving out on him. Range of motion testing in March 2017 showed tight knee flexion to 110 degrees and left knee flexion to 105 degrees with full extension bilaterally. After careful consideration of the evidence, the Board finds that the evidence preponderates against a finding of a rating in excess of 10 percent for limited right and left knee motion resulting from patellofemoral syndrome. To warrant a higher rating, the evidence must show flexion limited to 30 degrees or extension limited to 15 degrees. The evidence does not show that either of the Veteran's knees has been limited to 30 degrees of flexion or 15 degrees of extension at any time during the period on appeal. Instead, the evidence shows that the Veteran's right knee flexion has been limited to 70 degrees, at worst, and his extension has been limited to 5 degrees, at worst. Similarly, the Veteran's left knee flexion has been limited to 75 degrees, at worst, but he has exhibited full extension. In addition to the limited range of motion, the Veteran has exhibited pain to palpation and crepitus and has resulted in difficulty tolerating prolonged standing, walking, and sitting, as well as other activities involving knee flexion (the Veteran's reports of his knees giving out are discussed below). This level of impairment is contemplated by the current 10 percent ratings and a rating in excess of 10 percent for either knee is not warranted. Separate Ratings for Instability The Veteran is currently in receipt of a separate 20 percent rating for left knee instability, effective January 24, 2018. However, the evidence raises the issue of entitlement to a separate left knee rating prior to January 2018 and also raises the issue of entitlement to a separate rating for the right knee. Separate ratings may be assigned for distinct disabilities from the same injury if the symptomatology for the conditions is not duplicative or overlapping; however, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); 38 C.F.R. § 4.14. DCs 5260 and 5261 evaluate limited motion of the knee but do not contemplate instability. Therefore, a rating under DC 5260 does not preclude a separate additional rating for knee instability. See Esteban v. Brown, 6 Vet. App. 259 (1994). As noted above, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 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. The criteria for DC 5257 (knee instability) were changed. 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). 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. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Under the earlier criteria for DC 5257, a 10 percent rating is assigned for slight lateral instability; a 20 percent rating for moderate instability; and a 30 percent rating for severe instability. The terms "slight," "moderate" and "severe" are not defined in the Rating Schedule and the Board must evaluate all the evidence to arrive at an equitable and just decision. See 38 C.F.R. § 4.6. The revised criteria provide for a 10 percent rating when there is a diagnosed condition involving the patellofemoral complex with recurrent patellar instability (with or without history of surgical repair) that does not require a prescript from a medical provider for a brace, cane, or walker. A 20 percent rating is assigned when there is a diagnosed condition involving the patellofemoral complex with recurrent patellar 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 assigned when there is a diagnosed condition involving the patellofemoral complex with recurrent patellar instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. The revised criteria also include criteria for recurrent subluxation or instability when there is a ligament tear, but the evidence does not show that the Veteran has had a ligament tear at any point during the period on appeal. Although the medical evidence during the period on appeal does not clinically document instability until March 2017, the United States Court of Appeals for Veterans Claims (Court) has held that DC 5257 does not require objective medical evidence. See English v. Wilkie, 30 Vet. App. 347, 349 (2018). The evidence shows that the Veteran frequently reported feelings of his knee "giving out." The Veteran is competent to report such manifestations. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). After careful consideration of the evidence, the Board finds that the evidence preponderates in favor of a finding of entitlement to separate 10 percent ratings for right knee instability for the period starting July 30, 2010 and for left knee instability for the period starting July 30, 2010 and ending January 24, 2018. To warrant a higher rating, the evidence must show moderate instability. The evidence does not show moderate instability but instead shows reports of the bilateral knees giving way, reports of bilateral instability, clinical findings of slight left knee instability, and clinical findings of bilateral patellar instability. The Veteran has not undergone any surgical repair in either knee in connection with his patellar instability but uses assistive devices such as a cane and braces. These manifestations produce slight instability and most closely approximate the disability picture contemplated by the 10 percent rating. Accordingly, separate ratings of 10 percent, and no higher, for right and left knee instability are warranted for the period starting July 30, 2010. Regarding the 20 percent rating for left knee instability for the period starting January 24, 2018, the Board finds that the evidence preponderates against a finding of entitlement to a higher rating. To warrant a higher rating, the evidence must show severe instability or surgical repair of the patella. The evidence does not show severe instability or any surgical repair but instead shows recurrent patellar instability and the use of assistive devices such as a cane and brace. These manifestations do not approximate the disability picture contemplated by the 30 percent rating under the former criteria or the revised criteria. Therefore, a rating in excess of 20 percent for left knee instability for the period starting January 24, 2018 is not warranted. Other Considerations In reaching the foregoing determinations, the Board acknowledges the Veteran's sincerely held belief that the symptoms associated with his bilateral knee disabilities are more severe than as reflected by the currently assigned ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology and resulting functional difficulties, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21Vet. App.456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disabilities. The Board has also considered whether additional staged ratings under Fenderson, supra, or Hart, supra, are appropriate for the Veteran's right hip disability, back disability, and left knee instability; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning additional staged ratings for such disabilities is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the initial and increased rating claims adjudicated herein. Doucette v. Shulkin, 28Vet. App.366 (2017). In reaching such decision, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran's favor, which has resulted in the separate ratings for knee instability. However, insofar as the Board has denied higher disability ratings, the preponderance of the evidence is against such aspects of the Veteran's claims. Therefore, the benefit of the doubt doctrine is not applicable in such regard and the Veteran's initial and increased rating claims must otherwise be denied. 38 U.S.C. §5107; 38C.F.R. §§4.3, 4.7. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W.V. Walker, 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.