Citation Nr: 21075973 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 14-02 223 DATE: December 22, 2021 ORDER Entitlement to a rating in excess of 10 percent for limited flexion of the left knee due to patellofemoral syndrome is denied. Entitlement to a rating in excess of 10 percent for limited flexion of the right knee due to patellofemoral syndrome is denied. Entitlement to a rating greater than 10 percent for left knee instability prior to January 16, 2017 is denied. Entitlement to a rating of 20 percent for left knee instability is granted effective April 1, 2017 is granted. Entitlement to a separate 10 percent rating for right knee instability is granted throughout the appeal. FINDINGS OF FACT 1. The Veteran's left knee patellofemoral syndrome is manifest by flexion limited to 90 degrees. 2. The Veteran's right knee patellofemoral syndrome is manifest by flexion limited to 90 degrees. 3. Prior to January 16, 2017, the Veteran's left knee instability is manifest by slight instability; from January 16, 2017 through March 31, 2017 the Veteran is in receipt of a temporary total (100 percent) rating for left knee meniscectomy. 4. Effective April 1, 2017, the Veteran's left knee instability is manifest by a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace. 5. The Veteran's right knee instability is manifest by slight instability throughout the appeal. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limited flexion of the left knee due to patellofemoral syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for a rating in excess of 10 percent for limited flexion of the right knee due to patellofemoral syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 3. Prior to January 16, 2017, the criteria for a rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 4. Effective April 1, 2017, the criteria for a rating of 20 percent, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 5. The criteria for a rating of 10 percent, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1987 to March 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared for a hearing before a Veterans Law Judge (VLJ) in October 2016. A transcript of that proceeding is of record. The VLJ who conducted the October 2016 hearing is no longer at the Board. In September 2020 the Board granted a separate 10 percent rating for left knee instability, but otherwise denied an increased rating for the Veteran's bilateral knee disabilities. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board's denial and remanded the matter to the Board to provide an adequate statement of reasons or bases that fully addresses the probative value of the relevant evidence and considers the availability of separate ratings under the relevant diagnostic codes. Additionally, the Court directed the Board to send the Veteran a letter providing him the option of another Board hearing before the Veterans Law Judge who will decide his case. The Board mailed the Veteran and his representative this letter in October 2021, providing the Veteran 30 days to request a second hearing. Neither the Veteran nor his representative responded to the letter. Accordingly, the Board will adjudicate the appeal based on the record. Increased Rating The Veteran contends that he is entitled to an increased rating for his left and right knee disabilities due to pain, instability, effusion, limited motion, and locking of the knee. The Veteran is presently in receipt of a 10 percent rating for left knee instability (Diagnostic Code (DC) 5257), a separate 10 percent rating for left knee patellofemoral syndrome (DC 5260), and a 10 percent rating for right knee patellofemoral syndrome (DC 5260). From January 16, 2017 through March 31, 2017 the Veteran is in receipt of a temporary total (100 percent) rating for a left knee partial meniscectomy. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned specific diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 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 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as here, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Board notes that during the pendency of the Veteran's appeal, VA amended the criteria for rating musculoskeletal disabilities. The new regulation applies to claims received on or after February 7, 2021 or previously filed claims that are pending on February 7, 2021 if the new regulation will render more favorable result for the Veteran. As such, the Board will evaluate the Veteran's disability under both the old and new regulations for the entire appeal period and choose the more favorable result. 1. Entitlement to a rating in excess of 10 percent for limited flexion of the left knee due to patellofemoral syndrome 2. Entitlement to a rating in excess of 10 percent for limited flexion of the right knee due to patellofemoral syndrome The Veteran's right and left knee patellofemoral syndrome is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion and in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Upon review of the evidence, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left and right knee limitation of flexion due to patellofemoral pain syndrome when considering range of motion, pain on motion, functional impairment, and functional loss when considering flare-ups. Specifically, the Veteran's disability was manifested by flexion measured at worst to 90 degrees bilaterally, considering additional limitations during flare-ups. Flexion was measured to 125 degrees on the right and 120 degrees on the left on the August 2010 VA examination, 90 degrees on the right and 120 degrees on the left in an October 2014 VA treatment note, 130 degrees on the right and 90 degrees on the left in July 2016 and January 2017 VA treatment notes, 105 degrees bilaterally on the June 2018 VA examination, and 110 degrees on the right and 100 degrees on the left on the August 2019 VA examination, all considering pain. Additionally, crepitus, tenderness, pain and swelling are seen on examination of both knees throughout the appeal period. See, e.g., August 2010, June 2018, and August 2019 VA examinations. The Veteran's strength in both legs has been normal throughout the appeal period with few exceptions. For example, strength was measured on the left as 4/5 at the June 2018 VA examination, and 4+/5 on the right in July 2015 VA treatment records. However, the Veteran reports increased weakness and fatigability during flare-ups. See, e.g., August 2010 and August 2019 VA examinations. A March 2013 x-ray showed very mild degenerative narrowing of the left and right knee compartments, slightly worse on the right than the left. However, the April 2013 VA examination indicates the arthritis shown on x-ray is not associated with the Veteran's patellofemoral pain syndrome as the patellofemoral joint spaces are well preserved. In June 2016 an x-ray showed left knee mild tricompartmental osteoarthritis with a small suprapatellar effusion. August 2016 MRI of the left knee showed moderate to large joint effusion, tendinosis of the posterior cruciate ligament, and degenerative changes. February 2019 MRI of the right knee showed sprain patterns without disruption of the distal cruciate, tricompartmental mild osteoarthritis, retropatellar chondromalacia, and a small to moderate joint effusion. The Board notes that while the June 2018 VA examination could not opine as to any additional loss of range of motion or functional ability after repetitive use or with flare-ups without resort to mere speculation, the August 2019 VA examiner opined that, during flare-ups, the Veteran's flexion was further limited by pain to 110 degrees on the right and 100 degrees on the left. The Board further notes that the most limited flexion measurement found in the record is 90 degrees bilaterally at separate times during the appeal period, as above. Therefore, considering the Veteran's reports of additional pain and weakness during flare-ups, which occur frequently, and resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran's flexion is limited to 90 degrees bilaterally considering pain, weakness, and fatigability during flare-ups. This results in a noncompensable rating due to flexion of 90 degrees, at worst bilaterally; however, a 10 percent rating has been assigned due to noncompensable limited motion with pain. The preponderance of the evidence does not show that the Veteran has flexion limited to 30 degrees to warrant a higher 20 percent rating. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due pain, weakened movement, excess fatigability, and pain during flare-ups and during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. The Veteran's reports of instability are addressed in further detail below. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for left knee and right knee limited flexion due to patellofemoral pain syndrome. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a rating greater than 10 percent for left knee instability prior to January 16, 2017 4. Entitlement to a rating of 20 percent for left knee instability is granted effective April 1, 2017 The Veteran's left knee instability is rated 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg. The amended Diagnostic Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability. Unde the new rating criteria, for recurrent subluxation or instability, a 10 percent rating is warranted 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 rating is warranted 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; 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 maximum 30 percent rating is warranted 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. For patellar instability, 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. 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 one of the following: A brace, cane, or walker. A maximum 30 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 and either a cane or a walker. Note (1) provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent prior to January 16, 2017, and in excess of 20 percent after April 16, 2017, for left knee instability. The Board has carefully considered the Veteran's reports about instability. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that the instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating moderate severity, and the Veteran had not had any surgeries on his left knee, prior to January 16, 2017. Additionally, as of April 1, 2017, the evidence does not indicate that the Veteran had an unrepaired or failed repair of complete ligament tear causing persistent instability, with a prescription for both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. VA examinations and VA treatment records show the Veteran has a diagnosed condition involving the patellofemoral complex of the left knee with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace. See, e.g., December 2012 and August 2016 VA treatment records. This warrants a 20 percent rating under the new rating criteria for DC 5257. However, under the old criteria only a 10 percent rating would be warranted as the evidence does not show moderate instability. See June 2019 VA examination addendum. Further, the Veteran had a partial meniscectomy; therefore, there is no evidence of a complete ligament tear required for a 30 percent rating under the new rating criteria. The record contains voluminous VA treatment records from June 2010 to December 2019. While the Veteran obtained treatment for his knees several times per year over that nine-year period, and periodically reported instability, instability was not recorded on examination. However, he was prescribed a single prong cane in December 2010 for pain, and in December 2012 he was prescribed bilateral knee braces for instability and pain. The Veteran was also afforded VA examinations in August 2010, April 2013, and June 2018, and August 2019; however, only the June 2018 VA examination showed lateral instability, measured at +1 bilaterally. At the June 2018 VA examination the examiner diagnosed the Veteran with bilateral knee instability, which was noted to be a new diagnosis that is a progression of the previous diagnosis. The June 2019 addendum to this examination noted a history of slight instability. Most recently the Veteran attended a VA examination in August 2019, which was ordered to address inconsistencies regarding whether he experiences instability. The Veteran reported that he has chronic pain, instability, weakness, stiffness, swelling, locking and popping. The Veteran also reported instability bilaterally during flareswhich he reported were constant or nearly constant. Upon examination there was no instability bilaterally, and no history of recurrent subluxation or lateral instability. However, the August 2019 VA examination is partially internally inconsistent and inconsistent with the record. While the examiner noted in one section that the Veteran wears ankle braces, the examiner later notes that the Veteran denies the use of any assistive devices, including braces or a cane. However, VA treatment records show prescriptions for bilateral knee braces and the Veteran has been observed wearing the braces. Thus, the examiner concluded that, while his history is notable for instability, the Veteran's allegations of instability are inconsistent with his denial of the use of assistive devices and the findings on examination of no instability and normal gait. However, given the inconsistencies in this report, the Board finds this conclusion is not supported by an accurate factual premise and is therefore entitled to no probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As the Board gives this opinion no probative weight, the Board need not address the Veteran's contentions that the examiner's opinion was tainted by an improper request suggesting a desired outcome. See Austin v. Brown, 6 Vet. App. 547, 552 (1994). The Board has carefully considered the Veteran's reports about instability, including his statements that he is wholly dependent on bilateral knee braces. English, 30 Vet. App. 347, 352-53. The Board notes that the Veteran is competent to report symptoms that he is able to perceive through his senses such as pain, swelling, flare-ups, instability, and difficulty with increased functional difficulty with tasks such as walking and standing. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds his reports partially credible as they are partially inconsistent with the competent medical evidence of record. While the Veteran reports that his knees will give out if he does not wear knee braces, as above, the only examination showing objective indications of instability was the June 2018 VA examination. Though the Veteran continually reported instability to his VA treating providers, and the Board does not doubt the presence of instability, the Veteran's statements regarding the severity of his instability are not consistent with the competent medical evidence of record. Accordingly, the Veteran's statements are entitled to some probative weight. In summary, the competent and credible evidence of record shows the Veteran has a diagnosed condition involving the patellofemoral complex of the left knee with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, consistent with the 20 percent rating criteria under DC 5257 in effect since February 2021. Accordingly, as the new rating criteria is more favorable to the Veteran, the Board grants a 20 percent rating under DC 5257 for the Veteran's left knee instability effective April 1, 2017, the date his temporary total evaluation for his left knee surgery expired. Prior to January 16, 2017, the date his 100 percent rating began, a 10 percent rating is warranted as the Veteran had not yet had surgery as warranted for a 20 percent rating under the new rating criteria, and VA examinations and VA treatment records do not show moderate instability as required under the old rating criteria. Furthermore, the Board has considered whether higher ratings or additional separate ratings are warranted under other diagnostic codes. However, the evidence of record does not support higher or additional ratings. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. 38 C.F.R. § 4.14; See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017). In this regard, the Board has considered whether a separate rating under DC 5258 or 5259 is warranted given the evidence of a meniscus condition of the left knee. As above, the Veteran's January 2017 surgery was not a complete removal of the meniscus; therefore DC 5259 is not applicable. Additionally, August 2019 VA examination addendum noted a meniscal tear with frequent episodes of joint pain, effusion, and locking. However, the Veteran's pain, effusion, and locking are contemplated by his evaluations under DC 5257 and 5260. The Board is cognizant that the Court has held that separate ratings may be provided when the facts support it, but here, considering all the medical and lay evidence, the rating assigned contemplate the overall functional impact of this disability and its manifestations. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Accordingly, a separate rating under DC 5258 for dislocated meniscus of the left knee cannot be granted. Additionally, the Veteran has not been diagnosed with ankylosis, impairment of the tibia and fibula, or genu recurvatum. While the June 2018 VA examination showed significantly limited extension, VA treatment records before and after the examination throughout the appellate period show normal extension. Given the normal extension measurements and VA treatment records showing otherwise stable symptoms after the June 2018 VA examination, the preponderance of the evidence indicates the June 2018 measurements were an aberration rather than evidence of worsening. Thus, the Board finds that the preponderance of the competent medical evidence indicates normal extension. Therefore, the Board finds that Diagnostic Codes 5256, 5258, 5259, 5261, 5262, and 5263 are not applicable. 38 C.F.R. § 4.71a. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for left knee instability prior to January 16, 2017. Further, the Board finds a 20 percent rating, but no higher, is warranted effective April 16, 2017. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to a separate 10 percent rating for right knee instability Regarding the Veteran's right knee patellofemoral pain syndrome, the Veteran reports tenderness, pain, limitation of flexion and extension, instability, effusion, popping, and locking of his right knee. The competent medical evidence shows no diagnosed meniscal condition of the right knee, and the Veteran has not had surgery on that knee. While the March 2014 MRI showed subtle changes of the medial meniscus, no tears or sprains have been diagnosed; thus, a separate rating under DC 5258 for the right knee cannot be granted. However, the June 2018 VA examination and June 2019 addendum diagnosed bilateral knee instability and noted a history of slight instability of the right knee. While VA treatment records before and after this examination, and the August 2019 VA examination, show no instability of the right knee on testing, the Veteran has consistently reported flare-ups of his right knee pain and weakness resulting in instability. Additionally, December 2012 VA treatment records show he was prescribed a right knee brace for instability, and the Veteran has been observed intermittently wearing the brace throughout the appeal period. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds a separate 10 percent rating is warranted for right knee instability under DC 5257. However, under both the old and new rating criteria, the maximum rating warranted is 10 percent as VA examinations and VA treatment records do not show moderate instability and the Veteran has not had surgery on the right knee. See June 2019 VA examination addendum. Furthermore, the Board has considered whether higher ratings or additional separate ratings are warranted under other diagnostic codes. In this regard, the Veteran has normal extension, and has not been diagnosed with ankylosis, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. Therefore, for the same reasons as noted above, the evidence of record does not support higher or additional ratings. The Board finds that Diagnostic Codes 5256, 5258, 5259, 5261, 5262, and 5263 are not applicable. 38 C.F.R. § 4.71a. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, 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.