Citation Nr: 21006273 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 10-00 159 DATE: February 3, 2021 ORDER Entitlement to an increased rating for service-connected chondromalacia, right patella, currently evaluated as 10 percent disabling is denied. Entitlement to an increased rating for service-connected chondromalacia, left patella, currently evaluated as 10 percent disabling is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s right knee was not characterized by flexion limited to 30 degrees or less, extension limited to 15 degrees or greater, recurrent subluxation or instability, ankylosis, impairment of the tibia or fibula, or genu recurvatum. 2. Throughout the appeal period, the Veteran’s left knee was not characterized by flexion limited to 30 degrees or less, extension limited to 15 degrees or greater, recurrent subluxation or instability, ankylosis, impairment of the tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected chondromalacia, right patella have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for a rating in excess of 10 percent for service-connected chondromalacia, left patella have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to June1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal have previously been remanded by the Board in August 2013, March 2016, December 2017, September 2018, and August 2020. On the most recent Board remand, the Board requested that the RO provide the Veteran another opportunity to submit medical records from his employment with the USPS. In August 2020, the RO sent the Veteran a letter requesting that the Veteran provide proper authorization forms for the release of all pertinent, outstanding, administrative, and medical records from the Veteran’s employment at USPS. The Veteran did not respond to the request. Increased Rating 1. Entitlement to an increased rating for service-connected chondromalacia, right patella, currently evaluated as 10 percent disabling 2. Entitlement to an increased rating for service-connected chondromalacia, left patella, currently evaluated as 10 percent disabling As the facts and analysis for both the left and right knee are substantially the same, the Board will address both increased rating claims together in the interest of brevity. In April 2008, the Veteran requested an increase in his service-connected right and left knee disability as his condition have become worse. His right and left knee disability are currently rated at 10 percent under Diagnostic Codes 5260 for pain with limitation of motion. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 evaluates limitation of knee flexion. A noncompensable rating is assigned for flexion limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. Diagnostic Code 5261 evaluates limitation of knee extension. A noncompensable rating is assigned for extension limited to 5 degrees. A 10 percent rating is assigned for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. In considering range of motion ratings, it is important to consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Turning to the evidence of record, the Veteran was afforded a VA examination in October 2008. The Veteran complained of stiffness, swelling, popping sensations in the both knees, with difficulty climbing and descending stairs, and inability to squat or kneel. The Veteran complained of occasional locking, some instability, but has not fallen. There has been no subluxation or dislocation. The Veteran indicated that he has aching pain on a level of 6 out of 10 on a daily basis, lasting all day with flare-ups of sharp pain on a level of 8 or 9 out of 10. The Veteran wears a knee brace. The Veteran complains of pain associated with walking, driving distance, standing, and inability to run. With regards to the right knee, the examiner noted no gross deformity or swelling. The examiner stated that there is minimal tenderness noted in the posterior aspect of the joint with increased tenderness over the medial and lateral aspect of the knee joint as well as over the patella. The examiner expressed that there is pain associated with range of motion with gravity and against resistance. Flexion was noted as 0 to 87 degrees with full extension. The examiner reported no abnormal motion with valgus and varus stress applied on the medial and the lateral collateral ligaments. The examiner noted that the anterior and the posterior drawer tests were negative. McMurray test was negative. Grind test was positive. The examiner stated that after repetitive-use testing with at least three repetitions, there is an increase in pain, fatigue, and weakness. The examiner noted that the knee joint is stable but no improvement in the range of motion. With regards to the left knee, the examiner noted no gross deformity or swelling. The examiner stated that there is tenderness over the patella and along the medial and lateral joint bases. The examiner stated that there is pain associated with range of motion with gravity and against resistance. Flexion was from 0 to 65 degrees with full extension. The examiner reported no abnormal motion with valgus and varus stress applied on the medial and the lateral collateral ligaments. The examiner noted that the anterior and the posterior drawer tests were negative. McMurray test was negative. Grind test was positive. The examiner stated that after repetitive-use testing with at least three repetitions, there is an increase in pain, fatigue, and weakness. The examiner noted that the knee joint is stable but no improvement in the range of motion with repetitive movement. The examiner expressed that additional limitation due to flare-ups cannot be determined without resorting to speculation. The examiner reported that there was no discomfort or difficulty with range of motion testing. The examiner noted that there was no effusion, edema, erythema, tenderness, palpable deformities, or instability, except as noted. In a December 2008 VA treatment note, the Veteran was noted to have had a MRI or the right and left knee in October 2008. There was no evidence of a meniscal tear in the right knee. Minimal joint effusion was noted. For the left knee, the Veteran was noted to have menisci and a high probability of a small tear involving the anterior horn of the lateral meniscus. The Veteran was afforded a VA examination in September 2013. The Veteran reported having a knee MRI showing a meniscal tear resulting in a left knee arthroscopic surgery in 2009. The Veteran denied seeking any medical care for knees since 2009. The Veteran reported constant bilateral knee pain with a level range of 5 or 6 out of 10. The Veteran expressed that his knees sometimes give out or lock up. The Veteran stated that he has difficulty bending, squatting, and getting off the floor. With regards to his knee brace, the Veteran expressed that he wears it almost all the time and that he alternates between right and left knee, depending on which knee feels like it will give out. The examiner noted that the Veteran does not report flare-ups of the knee. Initial range of motion showed that the Veteran has right knee flexion to 85 degrees, with no objective evidence of painful motion; and no limitation of extension, with no objective evidence of painful motion. Initial range of motion showed that the Veteran has left knee flexion to 80 degrees, with no objective evidence of painful motion; and no limitation of extension, with no objective evidence of painful motion. The examiner stated that the Veteran’s bilateral knee examination had inconsistent, suboptimal effort and symptom embellishment with uncertain etiology. The examiner noted that the Veteran was unable to relax and fully cooperate with the examination. The examiner noted that the Veteran became defensive and angry when the examiner asked the Veteran to relax. The examiner reported that the Veteran was not able to perform repetitive-use testing with at least three repetitions. The examiner stated that the Veteran was unable to cooperate fully with bilateral knee examination during repetitive knee range of motion. The examiner noted that the Veteran does not have additional limitation in range of motion of the knee following repetitive-use testing. The Veteran was noted to have additional functional loss and/or functional impairment. The examiner was unable to test the anterior instability, posterior instability, and medial-lateral instability. The examiner noted that there was no evidence of a recurrent patellar subluxation/dislocation. The examiner noted that the Veteran does not have any tibial and/or fibular impairment. The examiner reported that the Veteran has had a meniscus (semilunar cartilage) condition. The examiner reported that the Veteran has had a meniscal tear on the left knee with no meniscectomy. The examiner noted that the Veteran has had arthroscopic left knee surgery, but indicated that the details are unknown to the examiner as there is no supporting medical record documentation. The examiner stated that the Veteran has had imaging studies of the knee with no x-ray evidence of patellar subluxation. The Veteran was afforded a VA examination in June 2016. The Veteran did not report flare-ups of the knee. The Veteran reported having functional loss or functional impairment. The Veteran indicated that he has trouble getting in and out of his vehicle as a postal carrier. Initial range of motion showed that the Veteran has right knee flexion from 0 to 30 degrees, and right knee extension from 30 to 0 degrees. The examiner expressed that the extent of range of motion limitation was not compliant with observation of the Veteran sitting in the examination room with legs in at least 60-degree flexion. The examiner stated that a full time ambulatory, working person is expected to have more range of motion than exhibited. Therefore, the examiner concluded that the additional factor for limitation of flexion is suboptimal effort. Initial range of motion showed that the Veteran has left knee flexion from 0 to 25 degrees, and left knee extension from 25 to 0 degrees. As noted above, the examiner concluded that the additional factor for limitation of flexion is suboptimal effort. The examiner noted that there was no history of recurrent subluxation, lateral instability, or recurrent effusion. The examiner noted that the Veteran has not had any tibial and/or fibular impairment. The examiner noted that the Veteran has had a meniscal tear. The examiner noted that per the Veteran, the Veteran had a 2008 MRI that showed a lateral meniscal tear which was repaired arthroscopically. In a March 2017 Board remand, the Board found that the results from the June 2016 VA examination were not adequate for rating purposes and that an additional examination was warranted. As such, the Board will not rely on the June 2016 examination in rating the Veteran’s knee disability. The Veteran was afforded a VA examination in August 2017. The examiner noted that the Veteran’s left knee surgery and scar is a new and separate diagnosis that are not related to the Veteran’s chondromalacia left knee. The Veteran stated that his condition has progressively gotten worse and that he had a left knee meniscal surgery in “2000-2003” for meniscus tear. The Veteran reported flare-ups and he indicated that his knees constantly hurt. The Veteran reported having functional loss or functional impairment. The Veteran stated that he has limited movement and that he cannot run or jump. Initial range of motion showed that the Veteran has right knee flexion from 0 to 70 degrees, and right knee extension from “0 to 70” degrees. The examiner indicated that the pain was noted on the examination and causes functional loss. There was no pain with weight-bearing and no objective evidence of crepitus. Initial range of motion showed that the Veteran has left knee flexion from 0 to 90 degrees, and left knee extension from 90 to 0 degrees. The examiner indicated that the pain was noted on the examination and causes functional loss. There was no pain with weight-bearing and no objective evidence of crepitus. The examiner noted that the Veteran was able to perform repetitive-use testing with at least three repetitions, but no additional loss of function or range of motion was noted for the right and left knee. The examiner stated that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over time for both the right and left knee. The examiner noted that the examination was being conducted during a flare-up and pain significantly limits functional ability with the flare-ups. The examiner was able to describe the limitation in range of motion. For the right knee, the Veteran’s flexion was from 0 to 65 degrees and extension was from 65 to 0 degrees. For the left knee, the Veteran’s flexion was from 0 to 85 degrees and extension was from 85 to 0 degrees. No ankylosis was noted. The examiner indicated that there was no history of recurrent subluxation or lateral instability in the right and left knee. The examiner was able to perform joint stability testing and the examiner noted that there was no joint instability for the right and left knee. The anterior, posterior, medial, and lateral instability test were normal bilaterally. The examiner noted that the Veteran did not have tibial or fibular impairment. The examiner indicated that the Veteran has had a meniscus (semilunar cartilage) condition. The examiner reported that the Veteran had a left sided meniscal tear. The examiner did not indicate that the Veteran had frequent episodes of joint locking, pain, or effusion. The examiner indicated that the Veteran had a left meniscus repair between the years of 2000 to 2003/2008. The examiner noted that the residual signs or symptoms that were due to the Veteran’s knee surgery were pain and limitation of range of motion. Having reviewed the evidence of record, medical and lay, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s right and left knee disability. Throughout the appeal period, the Veteran’s right and left knee disability have not resulted in limitation of flexion or extension sufficient to meet the requirements for a compensable rating under Diagnostic Codes 5260 and 5261. Instead, the Veteran has been assigned a 10 percent rating for the right and left knee for functional loss due to painful motion. This 10 percent rating for painful motion has been assigned pursuant to 38 C.F.R. § 4.59, which allows for the lowest compensable rating available for limitation of motion for a joint if there is acknowledged painful motion. However, a higher rating for limitation of motion is determined based on the actual range of motion. For the knee, a higher rating of 20 percent for limitation of motion requires flexion limited to 30 degrees or extension limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. However, physical examination indicates that the at most, the Veteran’s right knee flexion was limited to 65 degrees (during a flare-up), while the Veteran’s left knee, at most, was limited to 65 degrees. See October 2008 VA examination; See August 2017 VA examination. In addition, the Veteran’s extension was to 0 degrees. As the Veteran’s measured range of motion is not commensurate with the criteria for a 20 percent rating for either flexion or extension of the right or left knee, a higher rating is not warranted based on limitation of motion. Nor is a higher rating warranted for additional functional limitation of motion. The Board acknowledges the Veteran’s reports of knee pain, popping, locking, and stiffness. However, pain itself does not rise to the level of functional loss applicable to the musculoskeletal system. Mitchell v. Shinseki. Physical examination of the Veteran consistently indicated no additional limitation of motion that was commensurate with a higher rating. As such, a higher rating for additional limitation of motion is not warranted. See DeLuca v. Brown, 8 Vet. App. at 202. Additionally, the Veteran is already compensated for his right and left knee pain; specifically, he has been assigned a 10 percent rating because of pain in his right and left knee pursuant to 38 C.F.R. § 4.59. Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017). However even with consideration of all pertinent disability factors, there remains no basis for assignment of higher ratings. 38 C.F.R. § 4.71a , Diagnostic Codes 5260, 5261. See also Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017). The Board also considered whether higher or separate ratings would be in order under other relevant diagnostic codes. However, there is no evidence of ankylosis, and Diagnostic Code 5256 is not for application. Diagnostic Code 5257 allows for assignment of a disability rating for recurrent subluxation or instability of the knee. Although the Veteran has complained of some instability, the objective medical findings do not show that the Veteran experienced subluxation or instability in the right or left knee so as to warrant a separate or higher rating under Diagnostic Code 5257. The Veteran’s reports of instability are subjective in nature. Despite the use of a brace, the October 2008 examiner noted that the anterior and the posterior drawer tests were negative. The examiner further indicated that there was no subluxation of the bilateral knees. The September 2013 examiner noted that the Veteran has had imaging studies of the knee with no x-ray evidence of patellar subluxation. The August 2017 examiner indicated that there was no history of recurrent subluxation or lateral instability in the right and left knee. Therefore, the clinical findings do not show instability or subluxation of the right and left knee to warrant higher or separate rating under Diagnostic Code 5257. The Board finds that a separate rating is not warranted under Diagnostic Codes 5258 or 5259. Concerning Diagnostic Code 5258, a 20 percent rating is warranted for cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint. Here, the VA examinations have noted that the Veteran had a left knee arthroscopic surgery for a left knee meniscus repair. Although the Veteran has reported frequent episodes of pain and locking of the knee, there is no evidence of frequent episodes of effusion into the joint. In addition, the August 2017 examiner noted that the Veteran’s left knee surgery is a new and separate diagnosis that are not related to the Veteran’s chondromalacia left knee. Accordingly, the Board finds that a separate rating is not warranted under Diagnostic Code 5258. Likewise, the Board has considered whether a separate rating under Diagnostic Code 5259 governing symptomatic meniscal removal is warranted. While the record reflects that the Veteran had a left knee meniscal tear, there is no evidence of removal of the meniscus, which is required for a rating under Diagnostic Code 5259. (Continued on the next page)   The evidence also does not reflect findings of malunion or nonunion of the tibia or fibula. Diagnostic Code 5262 is not for application. A rating under Diagnostic Code 5263 is not warranted as there is no evidence of genu recurvatum. The Board acknowledges the Veteran’s assertions that his right and left knee disability warrants higher and/or separate ratings. The Board considered the Veteran’s reported symptoms in conjunction with the clinical findings of record and determines that higher and/or separate ratings for the right and left knee disability are not warranted at this time. The preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s right and left knee disability. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claims are denied. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. 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.