Citation Nr: 21006922 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-38 733A DATE: February 5, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for left knee iliotibial band syndrome is denied. Entitlement to an initial disability rating in excess of 10 percent for right knee patellar tendonitis is denied. FINDINGS OF FACT 1. The Veteran’s left knee flexion is not limited to 30 degrees or less. 2. The Veteran’s right knee flexion is not limited to 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left knee iliotibial band syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for an initial rating in excess of 10 percent for right knee patellar tendonitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2009 to December 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board remanded the Veteran’s claim to obtain a new examination. On remand, the RO increased the disability rating assigned to the Veteran’s claim to 10 percent, effective January 2013. Because the Veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, it follows that his claim remains in controversy where less than the maximum available benefit is awarded. Ab v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the issue remains on appeal. In August 2020, the Board remanded the Veteran’s claim for additional development. The case is once again before the Board. 1. Entitlement to an initial disability rating in excess of 10 percent for left knee iliotibial band syndrome is denied. 2. Entitlement to an initial disability rating in excess of 10 percent for right knee patellar tendonitis is denied. The Veteran is currently in receipt of a 10 percent disability rating for his knee disabilities under Diagnostic Code (DC) 5260. 38 C.F.R. § 4.71a. The next higher rating is warranted when knee flexion is limited to 30 degrees or less. During the appeal period, the Veteran underwent three VA joint examinations: first in June 2012, next in October 2014, and most recently in February 2020. At the first examination, the Veteran displayed full range-of-motion (ROM) in flexion and extension with no objective evidence of painful motion in either knee. He showed no additional limitation in ROM following repetitive-use testing and no functional loss. No flare-ups were reported. The examiner detected no tenderness or pain to palpation for joint line or soft tissues. Muscle strength and joint stability were normal with no evidence of recurrent patellar subluxation or dislocation. In October 2014, the Veteran again displayed full ROM in flexion and extension with no objective evidence of pain. Subjectively, he rated his knee pain at 3 out of 10 at its least and 10 out of 10 at its worst. As before, he showed no additional limitation in ROM following repetitive-use testing and no functional loss. This time, the Veteran reported flare-ups that impacted the function of his knees. Specifically, he complained that lifting, loading, going up and downstairs, hunting, and walking on uneven surfaces causes flare-ups. And during a flare-up, he experiences catching, locking, and tightness. Muscle strength and joint stability were again normal with no evidence of recurrent patellar subluxation or dislocation. Unlike before, the examiner noted tenderness or pain to palpation for joint line or soft tissues in both knees. At the last examination, initial ROM measurements showed normal extension and abnormal flexion—135 degrees and 130 degrees for his right and left knee respectively (140 is normal). The Veteran exhibited pain when extending his left knee but no resulting functional loss and no pain on exam of his right knee. The examiner detected a grinding sound (crepitus) in both knees and found objective evidence of mild localized tenderness or pain on palpation of the joint or associated soft tissue in the left knee. After repetitive-use testing (three repetitions), the examiner observed no additional loss of function or ROM in either knee. Because the examination did not occur immediately after repeated use over time, the examiner was asked to express an opinion on whether pain and the other factors set forth in 38 C.F.R. §§ 4.40 and 4.45 could significantly limit functional ability when the knee is used repeatedly over time. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). He opined that pain from use limits the Veteran’s knee flexion an additional 10 degrees, bringing the Veteran’s ROM to 125 and 120 degrees for his right and left knees. This decrease is consistent with the Veteran’s report of functional loss. For instance, in the November 2014 Substantive Appeal, he described his left knee hurting “very badly” when walking over a half-mile and needing to stop at work multiple times to rest his knee. The functional impact is similar for his right knee. In addition to functional loss when used repeatedly over time, the Veteran reported flare-ups of his knees. When an examination is not conducted during a flare-up (and it wasn’t here), the examiner must ask the Veteran about the “severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares.” Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). The examiner must then offer a flareup opinion based on estimates from relevant sources, including the veteran’s lay statements describing his functional limitation. Id. Here, the Veteran explained that he experienced flare-ups 3-4 days per week and estimated they last a day or two. He described a right knee flare as “moderate” and a left knee flare as “severe.” During a flare, pain reaches an 8 or 9 out of 10 and he finds it harder to straighten his left knee and bend his right knee. Bearing weight is also more difficult. They are alleviated by rest, heat, and nonsteroidal anti-inflammatory drugs (NSAID). Overall, he finds his symptoms worse for his left than his right knee. Based on this, the examiner found that pain during a flare up decreases the Veteran’s right knee flexion from 135 degrees to 120 degrees and his left knee flexion from 130 degrees to 115 degrees. Moving on, the Veteran exhibited normal muscle strength and joint stability. The examiner noted no ankylosis and no history of recurrent subluxation, lateral instability, recurrent effusion, or a meniscal condition. There was evidence of pain on passive range of motion testing of the left knee but not the right. And no evidence of pain on non-weight bearing testing for either knee. Finally, diagnostic imaging studies documented early degenerative arthritis of the left knee. Circling back to the beginning, recall that a 20 percent rating requires evidence of leg flexion limited to 30 degrees or less. The evidence shows that the Veteran had flexion to 140 degrees (both knees) in June 2012, 140 degrees (both knees) in October 2014, and 135 degrees (right knee) and 130 degrees (left knee) in February 2020. Even factoring in the additional ROM loss during flare-ups, the Veteran’s leg flexion does not approach 30 degrees or less. As such, the Board finds that a higher rating is not warranted under DC 5260 because the Veteran does not meet the rating criteria. Although a higher rating is not warranted for leg flexion, separate disability ratings are potentially available. “[E]valuation of a knee disability under DC 5260 does not preclude . . . separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259.” Lyles v. Shulkin, 29 Vet. App. 107, 109 (2017). Nor does it preclude a separate rating under DC 5257 (instability) or 5261 (leg extension). See English v. Wilkie, 30 Vet. App. 347, 350 (2018); VAOPGCPREC No. 9-2004 (Sept. 17, 2004). Starting with DC 5261, a 10 percent rating requires evidence of leg extension limited to 10 degrees or greater. 38 C.F.R. § 4.71a. Here, the evidence shows that the Veteran could extend both legs fully to 0 degrees at all three examinations, ruling out a compensable rating for leg extension. Next, DC 5258 and 5259 are the rating criteria for a meniscal disability. See id. There is no evidence in the record that the Veteran has dislocated or removed semilunar cartilage. All three examiners answered “no” when asked if the Veteran suffered from a meniscus condition and indicated that the Veteran did not undergo a meniscectomy or other knee surgery. Finally, DC 5257 provides a 10 percent rating for “slight” recurrent subluxation or lateral instability, 20 percent when it is “moderate,” and 30 percent when the condition is “severe.” Id. The rating schedule does not define “recurrent,” “slight,” “moderate,” or “severe.” Where the terms are not defined in the regulation, courts presume those terms carry their ordinary dictionary meaning. Holmes v. Wilkie, No. 19-2495, 2020 U.S. App. Vet. Claims LEXIS 2131, at *9 (Nov. 25, 2020). The dictionary defines “recurrent” as returning or happening time after time, “slight” as small in amount, “moderate” as limited in scope or effect, and “severe” as very painful or harmful or of a great degree. MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2007). Each examiner reviewed the claims file and found no history of recurrent subluxation or dislocation. Joint stability testing was normal at every examination. The Veteran does not wear a knee brace for support or use an assistive device as a normal mode of locomotion. During the appeal period, he complained of pain, difficulty weight-bearing, catching, locking, and tightness. But he did not mention falling or his knees giving way or buckling despite working full-time at a job requiring climbing, lifting, and loading. See English, 30 Vet. App. at 352-53. Accordingly, the Board concludes that a separate rating under DC 5257, 5258, 5259, and 5261 is not warranted. Based on the foregoing, the Board finds the preponderance of the evidence is against the Veteran’s claim for an initial disability rating in excess of 10 percent for his iliotibial band syndrome and patellar tendonitis. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Canedy, Associate 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.