Citation Nr: 21006096 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-51 670 DATE: February 3, 2021 ORDER Entitlement to a rating in excess of 10 percent for right knee patellofemoral is denied. Entitlement to a rating in excess of 10 percent for right knee instability is denied. FINDINGS OF FACT 1. The Veteran’s right knee patellofemoral condition is manifested by pain with extension limited to, at worst, 0 degrees, and flexion limited to, at worst, 110 degrees, considering functional impairment. 2. The Veteran has experienced no more than slight instability in his right knee. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for right knee patellofemoral have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5260-5003. 2. The criteria for entitlement to a rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.14, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1979 to April 1983 and his decorations include the Parachute Badge. The Veteran presented sworn testimony at a video conference hearing in November 2019. The claims were remanded in December 2019 for further development. Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.”). 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. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (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 Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms “flare up,” to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26 (2017). 1. Entitlement to a rating in excess of 10 percent for right knee patellofemoral. The Veteran states that his service-connected right knee disability is more severe than his 10 percent evaluation would indicate. The Veteran’s right knee patellofemoral is rated pursuant to DCs 5260-5003. Under Diagnostic Code 5260, a noncompensable rating is assigned when flexion of the knee is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. Separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint. VAOPGCPREC 09-04. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension of the knee is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is assigned when extension is limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. See 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5010 provides that arthritis due to trauma, as substantiated by x-ray findings, is to be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by radiologic findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Diagnostic Code 5003 further states that, where limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion, to be combined, not added. 38 C.F.R. § 4.71a, Diagnostic Code 5003; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Where a Veteran has degenerative joint disease, which is evaluated under Diagnostic Code 5003, a separate, compensable evaluation may be assigned under Diagnostic Code 5257 or 5258 if there are concomitant symptoms, such as knee instability or subluxation. To the extent Diagnostic Code 5257 may be applicable in this case, such code rates impairment based on recurrent subluxation or lateral instability of the knee, and provides a 10 percent evaluation where there is evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating with evidence of severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran’s claims for higher ratings for right knee instability will be discussed further below. Turning to the merits of the claim, because the prior examinations are not adequate for rating purposes, and given the Veteran’s testimony regarding the worsening of his right knee, resolving all doubt in the Veteran’s favor, the Board will adjudicate this appeal based on the findings and conclusions set forth in the February 2020 VA knee examination report. The Veteran complained experiencing flare-ups that impacted the function of the knee. Range of motion measurements indicated extension from 120 to 0 degrees and flexion from 0 to 120 degrees, with pain that causes functional loss. After repetitive-use testing, the Veteran’s range of motion showed extension from 110 to 0 degrees and flexion from 0 to 110 degrees. There was tenderness or pain to palpation for joint line or soft tissues of the right knee which presented as mild peripatellar that resulted in painful range of motion due to patellofemoral. Muscle strength testing and joint stability tests were normal. There was evidence of crepitus. There was no joint swelling, or ankylosis. There was no evidence of traumatic arthritis at that time. The examining physician diagnosed right knee patellofemoral syndrome with degenerative joint disease. After review of the evidence, the Board finds that a rating higher than 10 percent for the right knee is not warranted. The medical evidence shows that the Veteran’s right knee disability is manifested by pain on motion. Right knee flexion was not limited to 30 degrees and extension was not limited to 20 degrees. Rather, range of motion testing of the right knee indicated normal extension with flexion limited to no less than 120 degrees. Under Diagnostic Code 5260 and 5261, the limitation of motion does not reach the level of a compensable evaluation. Instead, the Veteran has been afforded a 10 percent evaluation for painful or limited motion. Higher evaluations are not warranted. Regarding the DeLuca factors, the Board observes that VA examiners have noted the Veteran’s complaints such as pain and difficulty walking. The Board has taken those complaints into consideration in its above discussion. However, the objective medical evidence of record is of greater probative value as to the Veteran’s level of impairment. Even considering his subjective complaints of pain and other symptoms described in DeLuca, limitation of motion of the right knee has not been shown such that a higher rating would be warranted. See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). The Board finds that the evidence does not support a finding that the Veteran’s right knee disability more closely approximates a 20 percent rating. In sum, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent for the right knee due to limitation of motion of the knee. While the Board acknowledges the reports of the Veteran that his right knee limitation of motion causes him to experience pain, providing the basis for the 10 percent evaluation, the Board has taken that into account in its consideration of the range of motion of the Veteran’s right knee, including functional loss during periods of flare-up. The rating schedule does not require a separate rating for pain itself. Accordingly, a greater rating is not warranted based on functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation. However, after review, the Board finds that no other diagnostic code provides for a higher rating for the time period in question. There is no evidence of ankylosis of the right knee, dislocation of semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, genu recurvatum. Accordingly, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for consideration. Accordingly, the Board finds that for the preponderance of the evidence is against the assignment of a rating greater than 10 percent for right knee patellofemoral under Diagnostic Codes 5260 or 5261. 2. Entitlement to a rating in excess of 10 percent for right knee instability. The Veteran reports that he has right knee instability warranting a greater evaluation than that currently assigned. For the reasons set forth above, and resolving all reasonable doubt in the Veteran’s favor, the Board will adjudicate this issue based on the findings and conclusions set forth in the February 2020 VA examination report. The examiner stated that there was no instability found in the Veteran’s right knee. The examiner performed anterior, posterior, medial-lateral instability tests of the Veteran’s right knee and found no instability. Additionally, the Veteran did not require assistive aids for walking. A review of the Veteran’s treatment records do not reveal right knee instability warranting a rating in excess of 10 percent disabling. The Board acknowledges the Veteran’s credible report of knee instability during the November 2019 Board hearing and concludes that the overall disability picture with respect to instability most nearly approximates that of slight instability. Accordingly, a disability rating in excess of 10 percent is not warranted for the service-connected right knee disability under DC 5257. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Booker 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.