Citation Nr: 21076274
Decision Date: 12/23/21	Archive Date: 12/23/21

DOCKET NO. 16-52 495
DATE: December 23, 2021

ORDER

Entitlement to an initial 20 percent rating, but no higher, for right knee patellofemoral pain syndrome, is granted.

Entitlement to an initial 20 percent rating, but no higher, for left knee patellofemoral pain syndrome, is granted.

FINDINGS OF FACT

1. The Veteran's right knee patellofemoral pain syndrome is manifested by meniscal injury with frequent episodes of joint locking, joint pain, and joint effusion.

2. The Veteran's left knee patellofemoral pain syndrome is manifested by meniscal injury with frequent episodes of joint locking, joint pain, and joint effusion.

CONCLUSIONS OF LAW

1. The criteria for an initial 20 percent rating, but no higher, for right knee patellofemoral pain syndrome has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5258.

2. The criteria for an initial 20 percent rating, but no higher, for left knee patellofemoral pain syndrome has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5258.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from May 2007 until his honorable discharge in February 2014. For his meritorious service, the Veteran was awarded (among other decorations) the Army Commendation Medal, Afghanistan Campaign Medal, and Combat Medical Badge. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country.

This case has a long procedural history, initially coming to the Board on appeal of an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office.

In December 2018 and June 2021, the Board remanded the claims for further development. The matter has now been returned for appellate consideration. As explained below, the Board is satisfied that there has been substantial compliance with the remand directives. Thus, no further action is required. See Stegall v. West, 11 Vet. App. 268 (1998).

Increased Ratings

The Veteran is seeking increased disability ratings for his right and left knee patellofemoral pain syndrome. He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his service-connected disabilities. Layno v. Brown, 6 Vet. App. 465 (1994).

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings 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 and their residual conditions in civilian occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestations of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14.

When there is a question as to which of two evaluations shall be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 (1990).

In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part(s). Under 38 C.F.R. § 4.40 functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.85, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.

Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability, and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016).

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidence by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the U.S. Court of Appeals for Veterans Claims (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.

Right and Left Knee Patellofemoral Pain Syndrome

The Veteran's right and left knee patellofemoral pain syndrome are currently rated as 10 percent disabling under DC 5260.

The general rating schedules for limitation of motion of the knee are set forth in 38 C.F.R. § 4.71a, DCs 5260 and 5261. While portions of the Rating Schedule addressing the musculoskeletal system were revised effective February 7, 2021, the amendments did not change the criteria under DCs 5256, 5258, 5259, 5260, 5261, and 5263.

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 DC 5256, a 30 percent rating may be assigned for ankylosis of knee at favorable ankle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating may be assigned for ankylosis of knee in flexion between 10 degrees and 20 degrees. A 50 percent rating may be assigned for ankylosis of knee in flexion between 20 degrees and 45 degrees. A 60 percent rating may be assigned for extremely unfavorable ankylosis of knee in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5256.

Under DC 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking", pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258.

Under DC 5259, removal of the semilunar cartilage that is symptomatic warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5259.

Under DC 5260, limitation of flexion of leg with flexion limited to 60 degrees warrants a 0 percent rating; with flexion limited to 45 degrees warrants a 10 percent rating; with flexion limited to 30 degrees warrants a 20 percent rating; and with flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260.

Under DC 5261, limitation of extension of leg with extension limited to 5 degrees warrants a 0 percent rating; with extension limited to 10 degrees warrants a 10 percent rating; with extension limited to 15 degrees warrants a 20 percent rating; with extension limited to 20 degrees warrants a 30 percent rating; with extension limited to 30 degrees warrants a 40 percent rating; and with extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261.

Flexion of the knee to 140 degrees is considered full, and extension to 0 degrees is considered full. 38 C.F.R. § 4.71a, Plate II.

Under DC 5263, a 10 percent rating is warranted for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). 38 C.F.R. § 4.71a, DC 5263.

Prior to the February 7, 2021 amendments, DC 5262, pertaining to impairment of the tibia and fibula, provided a 10 percent rating for malunion with slight knee or ankle disability; a 20 percent rating for malunion with moderate knee or ankle disability; a 30 percent rating for malunion with marked knee or ankle disability, and a 40 percent rating for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, DC 5262.

Effective February 7, 2021, DC 5262, impairment of the tibia and fibula, provides a 40 percent rating for nonunion of the tibia and fibula with loose motion, requiring a brace. A 30 percent rating is warranted for medial tibial stress syndrome (MTSS), or shin splints, requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A 20 percent rating is warranted for shin splints 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 10 percent rating is warranted for 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 noncompensable rating is warranted for shin splints with treatment less than 12 consecutive months, one or both lower extremities.

Prior to the February 7, 2021 amendments, DC 5257 provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee that is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, DC 5257.

The words "slight", "moderate", and "severe" used in DC 5257 are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.

The Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). A synonym for "mild" is "slight", which is defined as small in size, degree, or amount. Id. at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" include extremely intense. Id. at 1012.

Effective February 7, 2021, DC 5257 provides separate criteria for ratings based on recurrent subluxation or instability and patellar instability. For recurrent subluxation or instability, a 10 percent rating is warranted for a 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 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 for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 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 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 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.

Factual Background

In September 2014, the Veteran was afforded a VA Knee and Lower Leg Conditions examination. During the examination the Veteran reported experiencing flare-ups, described as no longer being able to run or ride a bicycle, needing to change positions every two hours, and continued stiffness. The examiner diagnosed bilateral patellofemoral pain syndrome.

Physical examination of the right knee revealed range of motion for flexion was measured from 0 degrees to 110 degrees, and extension was normal to 0 degrees. There was objective evidence of pain on flexion at 110 degrees, and extension at 0 degrees. The Veteran was able to perform repetitive-use testing with at least three repetitions with the same range of motion values. He did have functional loss/functional impairment as he had less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. There was tenderness or pain to palpation for joint line or soft tissue. Muscle strength testing of right knee flexion and extension was normal (5/5). Joint stability testing was normal. There was no history of recurrent patellar subluxation/dislocation. The examiner noted a history of a meniscus (semilunar cartilage) condition with frequent episodes of joint "locking", joint pain, and joint effusion. No diagnostic testing was performed.

Physical examination of the left knee revealed range of motion for flexion was measured from 0 degrees to 110 degrees, and extension was normal to 0 degrees. There was objective evidence of pain on flexion at 110 degrees, and extension at 0 degrees. The Veteran was able to perform repetitive-use testing with at least three repetitions with the same range of motion values. He did have functional loss/functional impairment as he had less movement than normal, pain on movement, disturbance of locomotion, interference with sitting, standing, and weight-bearing. There was tenderness or pain to palpation for joint line or soft tissue. Muscle strength testing of left knee flexion and extension was normal (5/5). Joint stability testing was normal. There was no history of recurrent patellar subluxation/dislocation. The examiner noted a history of a meniscus (semilunar cartilage) condition with frequent episodes of joint "locking", joint pain, and joint effusion. No diagnostic testing was performed. Lastly, the examiner remarked, there was not additional limitation of motion due to pain during flare-ups or when the joint is used repeatedly over a period of time.

In his December 2014 Notice of Disagreement, the Veteran stated, "after seven years of airborne operations, dismounted deployments, IED attacks and the rigorous training needed to operate in these conditions I no longer have the ability to sit for extended periods with my knees bent (frequent stops during travel, no movies with my family), jump, run or even walk long distances. I will not be able to run with my son, play sports with my children, enjoy the adventures with my family."

The Veteran submitted to another VA Knee and Lower Leg examination in August 2021. During the examination, the Veteran reported a worsening of his bilateral knee pain. He described persistent pain in both knees, with episodes of locking, buckling, popping, and grinding sensation. He reported daily flare-ups, to a moderate to severe level of severity, lasting for variable duration. The flare-ups are precipitated by prolonged walking, standing, sitting, and navigating stairs, and alleviated by prescription medication, physical therapy modalities, and resistance training. He reported functional loss or functional impairment of the right and left knee as he had difficulty walking, standing, and navigating stairs.

Physical examination of the right knee revealed active range of motion for flexion was measured from 0 degrees to 120 degrees, and extension was normal to 0 degrees with objective evidence of pain with flexion and extension. Passive range of motion demonstrated the same range of motion values. There was evidence of pain with weight-bearing, active motion, and passive motion, causing functional loss, described as increased pain with prolonged standing and walking. There was objective evidence of crepitus and 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 with no additional loss of function or range of motion. The Veteran was examined immediately after repeated use over time. The examiner stated procured evidence suggests pain significantly limits functional ability with repeated use over time. The examiner described the functional loss in terms of range of motion: flexion to 120 degrees, and extension to 0 degrees. Although the examination was not being conducted during a flare-up, the examiner stated the procured evidence suggests pain significantly limits functional ability with flareups. The examiner described the functional loss in terms of range of motion: flexion to 120 degrees, and extension to 0 degrees. There was no muscle atrophy. There was no ankylosis. There was no recurrent subluxation or persistent instability. There was no recurrent patellar instability. No meniscal condition was noted. The Veteran did not require the use of assistive devices.

Physical examination of the left knee revealed active range of motion for flexion was measured from 0 degrees to 120 degrees, and extension was normal to 0 degrees with objective evidence of pain with flexion and extension. Passive range of motion demonstrated the same range of motion values. There was evidence of pain with weight-bearing, active motion, and passive motion, causing functional loss, described as increased pain with prolonged standing and walking. There was objective evidence of crepitus and 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 with no additional loss of function or range of motion. The Veteran was examined immediately after repeated use over time. The examiner stated procured evidence suggests pain significantly limits functional ability with repeated use over time. The examiner described the functional loss in terms of range of motion: flexion to 120 degrees, and extension to 0 degrees. Although the examination was not being conducted during a flare-up, the examiner stated the procured evidence suggests pain significantly limits functional ability with flareups. The examiner described the functional loss in terms of range of motion: flexion to 120 degrees, and extension to 0 degrees. There was no muscle atrophy. There was no ankylosis. There was no recurrent subluxation or persistent instability. There was no recurrent patellar instability. No meniscal condition was noted. The Veteran did not require the use of assistive devices.

An addendum opinion was also secured to reconcile the September 2014 VA examiner's finding of a history of a right and left knee meniscus (semilunar cartilage) condition with frequent episodes of joint "locking", joint pain, and joint effusion; a January 2016 Audie Murphy Memorial VA Medical Center (VAMC) record noting past surgical history: knee scoped; and an April 2016 Audie Murphy Memorial VAMC record noting past surgical history: bilateral knee arthroscopy. 

The VA examiner opined, "there is no history of right knee surgery and/or left knee surgery based on the examination performed and from previous knee evaluation in September 2014. There are no scars to suggest knee surgery. The medical history of previous surgery was most likely erroneously entered and was copied and paste thereafter."  However, the examiner noted that there was evidence of meniscal injury bilaterally with "frequent episodes of joint locking, frequent episodes of joint and frequent episodes of joint effusion."

1. Entitlement to an initial disability rating in excess of 10 percent for right knee patellofemoral pain syndrome (right knee disability)

2. Entitlement to an initial disability rating in excess of 10 percent for left knee patellofemoral pain syndrome (left knee disability)

As noted above, the Veteran's right and left knee disabilities are currently rated as 10 percent disabling under DC 5260. The 10 percent ratings were assigned for painful motion of the knee.

Considering the evidence of record indicating that the Veteran has right and left meniscal injuries with joint locking, pain, and effusion, the Board finds that 20 percent ratings, but no higher, are warranted for the Veteran's right and left knee disabilities under DC 5258.

The Board has also considered the other DCs pertaining to the knee and leg.  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.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).  

The Board does not find, however, that a rating higher than 20 percent for limitation of motion is warranted at any time during the appeal period under DCs 5260 or 5261.  Even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements would not result in limitation of motion more nearly approximating flexion limited to 15 degrees, or extension limited to 20 degrees in either knee.

The Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. However, increased evaluation for the Veteran's right and left knee disabilities is not warranted on the basis of functional loss due to pain, less movement than normal, or interference with sitting, standing, and weight-bearing, as his symptoms are supported by pathology which do not indicate that a rating higher than 20 percent is warranted. Although the Veteran's painful motion is significant, there is no indication that it has resulted in further limitation of motion than what was shown on examination, and without clinical medical evidence indicating further functional limitation, the Board is unable to find that the Veteran's pain is so disabling as to actually, or effectively, limit flexion or extension of the right or left knee to such an extent as to warrant assignment of a higher or additional rating.

Additionally, there is no showing of instability as both VA examination reports showed no instability, even upon specific instability testing. As the medical findings showed no laxity and no objective evidence of subluxation, the Board concludes that separate disability ratings under DC 5257 are not warranted for the right or left knee.

The Board also finds that separate or higher ratings are not warranted under DC 5259. Notably, the August 2021 examiner opined that there was no history of knee surgery based on the examination performed and from the previous knee evaluation in September 2014.  The examiner noted that there were no scars to suggest knee surgery.

Lastly, the Veteran is not entitled to  higher or separate ratings under DCs 5256, 5262, or 5263. There is no indication of ankylosis, tibia and fibula impairment, or genu recurvatum in either the right or left knee.

Accordingly, the Board finds that an initial 20 percent rating, but no higher, for the Veteran's right and left knee disabilities, is warranted. 

 

 

S. Morrad

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Grace Johnk, 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.