Citation Nr: 21005809 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-30 731 DATE: February 2, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected left knee patellar femoral syndrome (based on limitation of flexion) is denied. Entitlement to an initial rating in excess of 20 percent, but no higher, for service-connected left knee instability is granted. FINDINGS OF FACT 1. The Veteran’s left knee patellar femoral syndrome (based on limitation of flexion) is manifested by painful motion. 2. The Veteran’s left knee instability is moderate. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left knee patellar femoral syndrome based on limitation of flexion, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.7, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for an initial rating of 20 percent, but no higher, for left knee instability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1987 to September 1991. In July 2017, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In February 2018 and September 2019, the appeal was remanded for further development. INITIAL RATING Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2020). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in Fenderson, the Court noted an important distinction between an appeal involving a Veteran’s disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection to consider the appropriateness of “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 (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 any of 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. 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. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The descriptive words “slight,” “moderate” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Left Knee Patellofemoral Syndrome and Left Knee Instability In May 2011, the Veteran filed a claim for service connection for his left knee disability. In an October 2011 rating decision, service connection for left knee patellofemoral syndrome was granted at 10 percent under DC 5260. In September 2012, the Veteran filed a timely notice of disagreement (NOD) appealing the initial rating. While the Veteran’s appeal was pending, in a May 2019 rating decision, the RO granted a separate rating for left knee instability. As the Veteran’s left knee instability is part of his left knee disability claim on appeal, it is included as part of his appeal. Since the Veteran is appealing the original assignment of disability evaluation following the award of service connection for left knee patellofemoral syndrome, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran’s left knee patellofemoral syndrome is assigned a 10-percent rating for functional loss due to painful motion pursuant to 38 C.F.R. § 4.59, which allows for the assignment of the lowest compensable rating for limitation of motion available for a joint if there is acknowledged painful motion, even if the range of motion is not limited to the lowest compensable level under the applicable diagnostic code. See Burton, 25 Vet. App. 1. Under 38 C.F.R. § 4.71a, DC 5260 for limitation of flexion, the lowest compensable rating for limitation of motion is 10 percent. Thus, this rating was assigned for the Veteran’s painful motion of the left knee. See Deluca v. Brown, 8 Vet. App. 202, 206 (1995). In addition, the Veteran’s left knee instability is assigned a 10-percent rating under DC 5257 for slight lateral instability. The Veteran contends that his left knee disabilities warrant higher ratings than currently assigned. In a September 2012 NOD, the Veteran notes that his left knee disability was not a minor injury, as he was never able to return to jump school during service since his injury. The Veteran also noted that he has experiences chronic pain, locking, popping, giving out, and instability of the left knee with limitations on his activities. Normal range of knee motion is 140 degrees of flexion and 0 degrees of extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, DCs 5260 and 5261. DC 5260 provides for a noncompensable evaluation where flexion of the leg is limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. For a 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. DC 5261 provides for a zero percent evaluation where extension of the leg is limited to five degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. Where extension is limited to 45 degrees, a 50 percent evaluation may be assigned. DC 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability. A 20 percent rating is assigned when there is moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Factual Background The Veteran was first afforded a VA examination for knee conditions in August 2011. Range of motion testing on the left knee reveals flexion ends at 120 degrees with painful motion and extension ends at 0 degrees. The VA examiner noted pain upon flexion. The VA examiner noted flare-ups that occur once a month, during which the pain is rated six out of ten, and lasts for one to two days. During this examination, the VA examiner noted that there is was no ankylosis of the left knee, no instability, or any other disabilities associated with the left knee. In April 2018 VA examination report for knees, the Veteran reported that he has left knee pain and locking of the left knee. Range of motion testing on the left knee reveals flexion ends at 100 degrees and extension ends at 0 degrees. The VA examiner noted pain upon flexion. The VA examiner noted the presence of posterior, medial, and lateral instability of the left knee measured as +1 on joint stability testing. The VA examiner noted that the Veteran’s limitations on range of motion as well as instability are noted as moderate. Specifically, the VA examiner noted that the Veteran’s left knee hurts and will lock up. The VA examiner opined that the Veteran’s left knee symptoms are considered moderate. During this examination, the VA examiner noted that there is was no ankylosis of the left knee, no recurrent patellar dislocation, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. The VA examiner also noted there is no meniscal conditions. In a December 2019 VA examination report for knee and lower leg conditions, the Veteran reported his left knee pain is progressively worsening. The Veteran reported left knee pain, stiffness, and that his knee “gives out.” The Veteran reported daily flare-ups, with pain being 10 out of 10, during which he is no longer able to run, walk, or stand for long periods of time. Range of motion testing on the left knee reveals flexion ends at 100 degrees and extension ends 0 degrees. The VA examiner noted pain on both flexion and extension. The VA examiner noted that pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time and with flare-ups. After repetitive-use testing, the VA examiner noted additional loss of range of motion on the left knee is flexion to 90 degrees and extension to 0 degrees. During flare-ups, the VA examiner estimated additional loss of range of motion on the left knee is flexion to 90 degrees and extension to 0 degrees. The VA examiner noted that the Veteran has difficulty sitting in the same position for prolonged periods of time. The Veteran has difficulty sitting in certain positions. The Veteran has difficulty walking and standing for long periods of time. The VA examiner noted a history of recurrent effusion, as the Veteran reported swelling to the left knee on several occasions. The VA examiner noted that the Veteran has posterior instability of the left knee measure at +1. The VA examiner describes the left knee instability as moderate. During this examination, the VA examiner noted that there is was no ankylosis of the left knee, no recurrent patellar dislocation, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. The VA examiner also noted there is no meniscal conditions. In an August 2020 VA addendum opinion, the VA examiner noted that there is no basis to offer additional losses of function or motion when it comes to repetitive use or during a flare-up. Left Knee Patellofemoral Syndrome Based on the review of the evidence of record, with respect to flexion and extension, the evidence shows that the worst limitation of the Veteran’s knee flexion was limited to 90 degrees (when considering loss of range of motion with flare-ups and repeated use) and extension was to 0 degrees, as reflected in the December 2019 VA examination report. Given such, based on the objective range of motion testing alone, a non-compensable rating would be warranted. However, because the evidence reflected painful motion upon flexion, the Veteran was assigned 10 percent rating under 38 C.F.R. § 4.59, which allows for the assignment of the lowest compensable rating for limitation of motion available for a joint if there is acknowledged painful motion, even if the range of motion is not limited to the lowest compensable level under the applicable diagnostic code. Importantly, as the Board notes that the Veteran is also assigned a 10 percent rating under DC 5257 for slight lateral instability. The Board notes that a compensable rating under DC 5257 for left knee instability encompasses the Veteran’s painful motion. As such, separate ratings based on pain of the left knee would constitute impermissible pyramiding. See 38 C.F.R. §§ 4.14, 4.59, 4.71a, DC 5003; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In other words, the Veteran should not be in receipt of a separate rating under DC 5260 pursuant to 38 C.F.R. § 4.59 as he is being compensated for that same painful motion under DC 5257 for his left knee instability. However, at this juncture, the Board will not disturb the Veteran’s current assigned rating under DC 5260. Accordingly, the Board finds that entitlement to an initial rating in excess of 10 percent of the left knee patellofemoral syndrome, based on limitation of flexion, is not warranted. Left Knee Instability With respect to left knee instability, the Veteran is assigned a 10 percent rating under DC 5257 for slight lateral knee instability throughout the period on appeal. However, upon review of the evidence, the Board finds that a higher rating of 20 percent was warranted. Specifically, in the April 2018 and the December 2019 VA examination reports for knee conditions, the VA examiners both opined that the Veteran’s left knee instability is moderate. As such, a 20 percent rating is warranted. In order to receive a higher 40-percent rating, the evidence must show severe left knee instability. Here, as discussed above, the April 2018 VA examiner noted that the Veteran’s left knee pain, locking of the left knee, and giving out of the left knee is characterized as moderate. Also, in the April 2018 VA examination report, the Veteran’s left knee instability testing reflected a result of 1+, whereas the most severe would have been 3+. Similarly, in the December 2019 VA examination report, the VA examiner noted that the Veteran’s left knee instability is moderate. The Veteran’s left knee instability testing reflected a result of 1+, whereas the most severe result would have been a 3+. As such, a higher 40 percent rating is not warranted as the evidence of record does not reflect that the Veteran’s knee instability is severe. The Board has considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40, and 4.45 would warrant higher ratings under DC 5257. See DeLuca, 8 Vet. App. 202, 206. While evidence shows that the Veteran had symptoms, e.g., pain upon flexion in the left knee, locking of the knee, as well as other symptoms upon activity, the weight of the evidence does not demonstrate additional functional loss and/or limitation of motion during flare-ups or with normal use that is not otherwise considered in the rating criteria. Particularly, as here, the Veteran’s current assigned ratings are based on upon painful motion. Thus, a 20 percent rating, but no higher, for the Veteran’s left knee instability is warranted. Other Diagnostic Codes Throughout the Appeals Period With respect to the Veteran’s left knee disability, as there is no evidence of ankylosis, removal or dislocation of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum, higher and/or separate ratings under Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not warranted. The Board has carefully considered the Veteran’s lay statements with respect to the severity of his knee-related symptoms. The Veteran has consistently reported that his suffers from pain in his left knee, which he notes have resulted in functional loss. However, the Board notes that the Veteran’s painful motion and pain on use are already contemplated by his assigned ratings for the left knee. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, 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.