Citation Nr: 21006887 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 08-06 599 DATE: February 5, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome with degenerative joint disease of the left knee is denied. Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome with degenerative joint disease of the right knee is denied. FINDING OF FACT Throughout the entire period on appeal, the Veteran’s left and right knee disabilities have manifested, at worst, in pain on use with range of motion from 10 degrees of extension to 100 degrees of flexion and no instability, ankylosis, cartilage removal, dislocated cartilage, impairment of the tibia or fibula, or genu recurvatum. CONCLUSION OF LAW The criteria are not met for ratings higher than 10 percent for the left and right knee disabilities. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5099-5020, 5260, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1981 to July 2001. This appeal to the Board of Veterans’ Appeals (Board) is from a March 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Increased Ratings 1. Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome with degenerative joint disease of the left knee 2. Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome with degenerative joint disease of the right knee Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. “Staged” ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal, irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999) (initial rating); Hart v. Mansfield, 21 Vet. App. 505 (2007) (established rating).   The evaluation of the same disability under several DCs, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran contends that he is entitled to ratings higher than 10 percent for his service-connected left and right knee disabilities. These disabilities are rated under hyphenated DC 5099-5020, which is for synovitis. But the DC for synovitis, in turn, directs to rate the disability based on the extent it causes limitation of motion of the affected part, which, in this case are the knees, warranting consideration of DC 5260 (for limitation of flexion) and DC 5261 (for limitation of extension). See also DC 5003, concerning arthritis (i.e., degenerative joint diseases (DJD)), also referring the rater to these DCs to determine the extent the arthritis has on range of motion. The Court has held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. The Court explained in Mitchell that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § § 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board additionally notes, however, that the Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Moreover, in Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (i.e., noncompensable) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. This is significant because the Veteran’s current 10 percent ratings for his left and right knee disabilities are based on painful motion as his limitation of motion has at no point during the pendency of this appeal been severe enough to, in turn, otherwise warrant this minimum compensable rating under DC 5260 or DC 5261. See 38 C.F.R. § 4.71a, DC 5003, providing for assignment of this minimum 10 percent rating in this circumstance. Normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II. The Veteran underwent a VA examination of his knees in April 2010. He had 130 degrees of flexion and extension to 0 degrees on range-of-motion testing. Thus, he had entirely normal extension, which obviously correlates to a 0 percent rating under DC 5261, and his flexion was only very slightly limited, more than double what is required for even the most minimum 0 percent (noncompensable) rating under DC 5260 since flexion must be limited to 60 degrees. He reported pain, so the situation contemplated in DeLuca, Mitchell, etc. but his pain did not result in additional limitation of motion, certainly not the point of warranting ratings higher than his existing 10 percent ratings. Moreover, while he complained of joint instability, the examiner did not detect any on examination of the Veteran’s knees, although the Court has explained that VA adjudicators cannot categorically favor medical evidence – showing no instability, over lay evidence conversely claiming there is. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Veteran underwent another VA examination of his knees in December 2016. On range-of-motion testing, he had 100 degrees of flexion, so, again, far exceeding what is required for even the most minimum 0 percent rating under DC 5260, and again full (entirely normal) extension to 0 degrees, so no basis to grant a compensable rating under DC 5261. The examiner noted pain on active motion and with weight bearing, but there again was insufficient restriction of motion, even when considering the Veteran’s pain, to warrant a rating higher than 10 percent. See Correia v. McDonald, 28 Vet. App 158 (2016). The Veteran most recently underwent a VA examination of his knees in October 2020. On range-of-motion testing, he had 130 degrees of flexion, so, again, more than double the flexion required for even the most minimum 0 percent rating under DC 5260. Unlike during the prior examinations, his extension was limited to 10 degrees, but even considering this at most warrants a 10 percent rating under DC 5261. The examiner noted pain on extension and flexion, as well as pain on ambulation and ascending or descending stairs, but still not severe enough to limit the Veteran’s extension or flexion to a point that would warrant a rating greater than 10 percent under either DC 5260 or 5261. Moreover, because the Veteran does not have limitation of flexion and extension to a degree warranting compensable ratings under DC 5260 and 5261, he cannot receive separate ratings for limitation of flexion and limitation of extension. See VAOPGCPREC 9-2004 (September 17, 2004). As already alluded to, the Veteran’s bilateral (left and right knee) disability also includes arthritis (DJD), and precedent opinions of VA’s General Counsel have explained that separate ratings also are permissible under DC 5003 (for arthritis) and DC 5257 (for instability). See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998). While, especially when considering the holding in English, the Veteran is certainly capable of subjectively reporting that he has knee instability, the several VA examiners did not detect any knee instability during their evaluations of him, despite testing specifically done to determine whether his knees are unstable (e.g., varus, valgus, Lachman’s, etc.). Thus, DC 5257, concerning “other” knee impairment that is slight (10 percent), moderate (20 percent) or severe (30 percent), including owing to recurrent subluxation or lateral instability, does not apply. This also, in turn, means he is not entitled to a separate rating for this, meaning a rating for instability under DC 5257 apart from his existing rating. Going one step further, there is no indication of need for separate evaluation under a meniscal DC, i.e., DC 5258 or 5259, because it is not shown the Veteran has the type of impairment contemplated by these other DCs. See Lyles v. Shulkin, 29 Vet. App. 107 (2017).  In sum, the Board finds that the existing 10 percent ratings sufficiently compensate the Veteran for his left and right knee patellofemoral pain syndrome with DJD and consequent impairment. As the preponderance of the evidence is against these claims, and there is no reasonable doubt to resolve in his favor, increased ratings for these disabilities are not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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.