Citation Nr: 21005974 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 12-33 653 DATE: February 3, 2021 ORDER An increased rating for patellofemoral syndrome, right knee, currently rated as 10 percent disabling, is denied. A separate 10 percent rating for right knee meniscus pain is granted. FINDINGS OF FACT 1. The Veteran’s patellofemoral syndrome, right knee is not manifested by leg flexion limited to 30 degrees, limitation of extension, or recurrent subluxation or lateral instability. 2. The Veteran’s right knee meniscus tear is manifested by pain. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 10 percent for the Veteran’s service-connected patellofemoral syndrome, right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for a disability evaluation of 10 percent, but no higher, for the Veteran’s right knee meniscal tear have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1991 to June 1993, January 1997 to April 1997, April 1997 to April 2000, and June 2006 to August 2009. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in November 2016, July 2018, and February 2020 for further development. An increased rating for patellofemoral syndrome, right knee, currently rated as 10 percent disabling, is denied. The Veteran’s right knee disability has been rated by the RO under Diagnostic Code 5260. Pursuant to this Diagnostic Code a 0 percent rating is warranted for leg flexion limited to 60 degrees. A 10 percent rating is warranted for leg flexion limited to 45 degrees. A 20 percent rating is warranted for leg flexion limited to 30 degrees. A 30 percent rating is warranted for leg flexion limited to 15 degrees. Additionally, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran underwent VA examinations in December 2009, January 2014, January 2017, and March 2019. None of the examiners found the Veteran’s flexion to be limited to a degree that would warrant an increased rating. The Board recognizes that only the latter two examination comply with the findings in Correia v. McDonald, 28 Vet. App. 158 (2016). At the Veteran’s January 2017 VA examination, he achieved full forward flexion to 140 degrees. There was no objective evidence of pain with weightbearing. The examiner noted that active and passive range of motion were the same and that there was no change in range of motion following repetitive use. The examiner also noted that functional ability was not significantly limited during flare-ups or with repeated use over time, due to pain, weakness, fatigability, and incoordination. At the Veteran’s March 2019 examination, he achieved forward flexion to 130 degrees with no pain noted on examination, and with no objective evidence of pain with weight bearing. There was no change in range of motion following repetitive use; however, the examiner estimated that pain, weakness, fatigability, and incoordination would limit leg flexion to 125 degrees with repeated use over time and with flare-ups. The examiner stated that there was no evidence of pain on passive range of motion testing, and there was no evidence of pain when the joint was used on non-weight bearing. Based on range of motion testing, the Veteran’s right knee disability would warrant a noncompensable rating; however, given the Veteran’s reports of pain, and the examination findings that pain, weakness, fatigability, and incoordination would limit flexion (to 125 degrees) after repeated use over time and with flare-ups, the RO granted a 10 percent rating. There is no medical evidence to show that there is any additional loss of motion of the right knee due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 10 percent. That is to say that, even when considering the DeLuca factors of pain, weakness, fatigability, and incoordination, the functional impact of those symptoms does not result in leg flexion limited to 30 degrees. The Board recognizes the Veteran’s contentions that the right knee disability causes difficulty with prolonged walking and going up stairs; however, in the absence of any evidence that the Veteran’s right knee disability is manifested by limitation of flexion to 30 degrees, the preponderance of the evidence weighs against the Veteran’s claim. The Board recognizes that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension), both codified at 38 C.F.R. § 4.71a, may be assigned for disability of the same joint. See VAOPGCPREC 9-2004. Pursuant to Diagnostic Code 5261, a 10 percent rating is warranted for leg extension limited to 10 degrees. A 20 percent rating is warranted for leg extension limited to 15 degrees. A 30 percent rating is warranted for leg extension limited to 20 degrees. A 40 percent rating is warranted for leg extension limited to 30 degrees. A 50 percent rating is warranted for leg extension limited to 45 degrees. In this case, the Veteran was shown to have achieved full extension (to 0 degrees) at all the VA examinations. Consequently, a separate rating under Diagnostic Code 5261 is not warranted. Additionally, the Board notes that the law permits separate ratings for arthritis and instability of a knee. Specifically, the VA General Counsel has held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257 because the arthritis would be considered an additional disability warranting a separate evaluation even if the limitation of motion was not compensable. See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997). Pursuant to 38 C.F.R. § 4.71a (Diagnostic Code 5257), a rating of 10 percent is warranted when the Veteran experiences slight subluxation or lateral instability. A rating of 20 percent is warranted when the Veteran experiences moderate subluxation or lateral instability. A rating of 30 percent is warranted when the Veteran experiences severe subluxation or lateral instability. None of the VA examinations revealed evidence of recurrent subluxation or lateral instability. The January 2017 and March 2019 VA examinations included joint stability testing, and both examiners explicitly found no recurrent subluxation or lateral instability Based on the objective findings of the VA examinations, the Board finds that a separate rating for instability is not warranted. Finally, the Board acknowledges that Diagnostic Codes 5262 allows for a higher rating for ankylosis. No such increased rating is warranted in so far as ankylosis has not been shown. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 10 degrees for the Veteran’s patellofemoral syndrome, right knee disability must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A separate 10 percent rating for meniscus pain is granted. In its February 2020 Remand, the Board sought clarification regarding whether the Veteran sustained a meniscus injury during service. There was a conflict in the evidence in that the January 2017 VA examiner stated that there was none, despite the fact that service treatment records dated June 2008 through August 2008 noted a cartilage tear in the right knee. A July 2020 VA opinion reflects that in addition to the Veteran’s patellofemoral syndrome, the Veteran had a meniscal tear. The Veteran reported that since his discharge from service, he has treated knee pain on a “when needed” basis symptomatically. The examiner stated that although the Veteran has patellofemoral pain syndrome, due to the chronic nature of meniscal tears, it is at least as likely as not that the Veteran has pain from the meniscal tear as well. Diagnostic Code 5259 allows for a rating of 10 percent for symptomatic cartilage. Given the Veteran’s in-service cartilage tear, and the July 2020 opinion that his meniscal tear pain is related to service, the Board finds that a separate 10 percent rating is warranted. The Board notes that Diagnostic Code 5258 allows for a 20 percent rating dislocated cartilage with frequent episodes of “locking” pain and effusion into the joints. The evidence of record, including the aforementioned VA examinations have failed to reflect frequent episodes of “locking” pain and effusion into the joints. Consequently, a rating in excess of 10 percent is not warranted. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.