Citation Nr: 21008334 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 10-27 702A DATE: February 16, 2021 ORDER An initial rating in excess of 10 percent for left knee patellofemoral syndrome is denied. A separate initial rating of 10 percent for left knee patellofemoral syndrome based on instability is granted. REMANDED An initial rating in excess of 10 percent for mitral valve prolapse with bradycardia and angina prior to May 6, 2013, is remanded. An initial rating in excess of 30 percent for mitral valve prolapse with bradycardia and angina from May 6, 2013, is remanded. TDIU prior to May 6, 2013, is remanded. FINDING OF FACT 1. The Veteran’s left knee patellofemoral syndrome is manifest by painful limitation of motion that does not result in limitation of motion more nearly approximating flexion limited to 30 degrees, or less, or extension limited to 10 degrees, or more. 2. The Veteran has stated he experiences knee instability but the medical test of record do not reveal evidence of instability. 3. The Veteran’s patellofemoral condition has not required a surgical repair. CONCLUSION OF LAW 1. The criteria for an initial rating in excess of 10 percent for left knee patellofemoral 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 a separate initial rating of 10 percent for left knee patellofemoral syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, had service from January 1975 to June 1995. In December 2018, the Board denied, in relevant part, higher staged ratings for mitral valve prolapse with bradycardia and angina. The Veteran appealed the Board’s decision, in part, to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued a Memorandum Decision, vacating the decision with respect to the issues described above, and remanding the matter to Board for further action. In June 2020, the Board previously considered the appeal for the issues of a higher rating for left knee patellofemoral pain syndrome and TDIU prior to May 6, 2013, and remanded these issues for additional development. After the development was completed, the case returned to the Board for further appellate review. 1. An initial rating in excess of 10 percent for left knee patellofemoral syndrome. The Veteran contends that he is entitled to a higher rating because his left knee patellofemoral pain syndrome is worse than reflected by the current 10 percent rating. The Veteran’s left knee patellofemoral pain syndrome is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. Although the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant DCs for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, and lateral instability and recurrent subluxation of the knee. A rating may also be assigned for meniscal impairment if there are non-overlapping symptoms. 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; 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds a sperate initial rating of 10 percent for patellofemoral pain syndrome based on instability is warranted. Otherwise, the evidence of record is against the Veteran’s claim for a rating in excess of 10 percent for left knee patellofemoral pain syndrome. During the December 2009 VA examination, the Veteran endorsed weakness, stiffness, swelling, giving way, lack of endurance, locking, fatigability, tenderness and pain. He indicated he did not experience heat, redness, deformity, drainage, effusion, subluxation and dislocation. The Veteran reported experiencing the following flare-ups as often as 3 times per day and each time lasted for 3 hours. From 1 to 10 (10 being the worst) the severity level was at 8. The flare-ups are precipitated by physical activity and stress. It was alleviated by rest, by Vicodin and by knee brace and/or heat pads. During flare-ups, he described functional impairment from pain and weakness. Limitation of motion of the joint was described as decreased range of motion. He reported difficulty with standing/walking and described difficulty with prolonged ambulation and standing. The VA examiner reported that the Veteran’s left knee patellofemoral pain syndrome impacted his ability to perform occupational tasks due to difficulty with prolonged ambulation, running, and performing arduous physical activities. The effect of the condition on the Veteran’s daily activity was difficulty with prolonged ambulation, running, and performing arduous physical activities and exercises. On VA examination in December 2010, the Veteran endorsed weakness, stiffness, swelling, giving way, lack of endurance, locking, fatigability, tenderness and pain. He indicated he did not experience heat, redness, deformity, drainage, effusion, subluxation and dislocation. He reported experiencing flare-ups as often as 3 times per day and each event lasted for 3 hours. From 1 to 10 (10 being the worst) the severity level was at 9. The flare-ups were precipitated by physical activity and stress. It was alleviated by rest and Vicodin, pain medication, and other medication for inflammation. During the flare-ups, functional impairment was described as his left leg “gives out” sometimes and required the use of a knee brace constantly. Limitation of motion of the joint was described as unable to jog/run or place constant stress or weight on left knee. He reports difficulty with standing/walking. The Veteran described long standing or walking for any duration caused the left knee to get tired, sore, and had to stop or sit down and rest. The Veteran described additional symptoms of a daily-use knee brace as the only means of constant support needed. A cane was also used if the condition worsened. The treatment was hot/cold pack alternated after any exertion or stress. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. There was guarding of movement, but objective no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment and drainage. There was no subluxation, locking pain, genu recurvatum or crepitus. There was no ankylosis. During the March 2015 VA examination, the Veteran endorsed that his left knee condition worsened. Specifically, he stated that his stability, balance, and flexibility had decreased. He said flare ups effect daily life to the extent that there was swelling of the left knee if used extensively or for a long time. He explained that repetitive use of his left knee caused impairment with pain and swelling, which made him unable to walk. He used a knee brace daily and his instability caused falls at times. The Veteran’s left knee patellofemoral pain syndrome impacted his ability to perform occupational tasks that involved running, jumping, prolonged walking, or prolonged standing because those tasks may provoke pain and decreased range of motion. On VA examination in October 2017, the Veteran complained of pain and “cramps” in the left knee. He also endorsed feelings of “a rubber band in the back of the leg which snaps.” He wore a knee brace daily to prevent falls. He did not take the brace off while walking for fear of falling. He did not endorse left knee flare-ups or report having functional loss/impairment. The Veteran endorsed constant use of a left knee brace and cane as an assistive device. The VA examiner reported that the left knee patellofemoral pain syndrome did not impact the Veteran’s ability to perform occupational tasks. There was objective evidence of pain on passive range of motion testing and non-weight bearing testing of the left knee. The opposing joint was undamaged. During the September 2019 VA examination, the Veteran endorsed left knee swelling and pain if he runs. He said he could not stand for more than 20 minutes or the left knee would feel weak and he had to sit. The Veteran said if he climbs stairs or performs heavy lifting then left knee felt painful and weak. He also wore a knee brace during waking hours. He did not report flare-ups of the left knee. He did endorse functional impairment due to pain, swelling, and feeling like he might fall whenever running, jogging, performing vigorous activity or heaving lifting. There was objective evidence of moderate pain on palpation or localized tenderness of the left knee. There was no evidence of pain with weight bearing or objective evidence of crepitus. There was objective evidence of pain with non-weight bearing, but none on passive range of motion, which showed values for flexion and extension were the same as the active testing results: zero to 140 degrees. Pain, weakness, fatigability or incoordination significantly limit functional ability with repetitive use or flare-ups. Muscle strength testing showed active movement against some resistance due entirely to the left knee patellofemoral pain syndrome. There was no muscle atrophy or ankylosis. There was a history of recurrent effusion, but no lateral instability or recurrent subluxation. The VA examiner reported that the Veteran’s left knee patellofemoral pain syndrome impact his ability to perform occupational tasks because he would be limited in regard to prolonged standing, walking and heavy lifting. These activities will result in left knee pain and swelling. The September 2020 VA examination reflected the Veteran’s continued endorsement of flare-ups of the left knee occurring upon any strenuous activity, long walks, or trying to carry heavy items. The left knee flare-ups were moderate to severe. The left knee flare-ups last 1-2 days and were precipitated by long walks or continuous heavy lifting, exercising. The left knee flare-ups were alleviated by rest, ice, heat. The Veteran reported functional loss because he was unable to exercise regularly or do normal lifting of any heavy items. He explained that repeating an activity caused more frequent and intense flare-ups. The VA examiner commented that the left knee patellofemoral pain syndrome impacted the Veteran’s functional ability to perform occupational tasks because he should avoid kneeling, squatting, jumping, twisting, running activities and frequent climbing up or down stairs. There was objective evidence of pain on passive range of motion testing and non-weight bearing testing of the left knee. There was no objective evidence of pain on passive range of motion testing or non-weight bearing testing of the right knee. The September 2020 VA examiner opined that the current examination revealed no objective evidence of instability. The VA examiner noted that this finding was also confirmed by 2017 MRI findings, as well as an April 1997 MRI that noted slight meniscus degradation, but no evidence of instability or degenerative arthritic changes. The VA examiner noted that the Veteran currently used a left knee brace as well as a cane for pain relief and discomfort of the left knee to avoid any further falling. The VA examiner further opined that the Veteran’s lay statements that he experienced left knee instability and felt the left knee giving way when pain occurred were subjective. The VA examiner also found that the Veteran’s lay statements did not support objective findings that he has instability based on the current clinical examination, as well as review and citation of the medical evidence history, specifically the aforementioned MRI results. The September 2020 VA examination revealed no evidence of atrophy, swelling, inflammation or significant crepitation to account for any lateral, medial or collateral ligament, ACL or meniscus instability. VA treatment records during the appeal period show treatment for left knee pain and use of a knee brace. Throughout the appeal period, initial and repetitive objective range of motion testing did not reveal flexion and extension to be less than zero to 60 degrees. The medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test and the medial/lateral meniscus stability test were all within normal limits for the left knee. There was no ankylosis or muscle atrophy. There were no X-ray findings for arthritis. There was no subluxation or lateral instability, semilunar cartilage removal or dislocation, no tibia and fibula impairment, or genu recurvatum. Other than discussed further below, there were no other pertinent physical findings, complications, conditions, signs, or symptoms that would warrant a higher rating for the left knee patellofemoral pain syndrome. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, pain during repetitive use over time, and daily use of a knee brace. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he experiences moderate to severe left knee flare-ups precipitated by long walks, continuous heavy lifting, or exercising would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. Consideration of additional impairment due to pain or other factors during flare-ups or after repeated use is not appropriate under this code, as it is not based on limitation of motion. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The March 2015 VA examiner indicated that pain and weakness significantly limited the Veteran’s left knee functional ability with repeated use over time. The March 2015 VA examiner estimated additional functional loss in terms of range of motion for the Veteran’s left knee as flexion and extension from 80 to 10 degrees. However, the Board finds that one instance of extension being estimated as limited to 10 degrees, when compared to the remaining objective evidence that has consistently showed normal extension to zero degrees over the course of the entire appeal period both before and after the March 2015 VA examination, does not cause his left knee extension to be more accurately defined as meeting the criteria for a 10 percent rating under Diagnostic Code 5261. The December 2009, December 2010, October 2017, September 2019, and September 2020 VA examiners estimated additional functional loss in terms of range of motion for the Veteran’s left knee as flexion to no less than 80 degrees and never above zero degrees. Furthermore, the Veteran’s rating for limitation of flexion is based on his left knee pain as the evidence does not show that it has ever been limited to less than 45 degrees. Accordingly, a separate rating under Diagnostic Code 5261 is not warranted as his symptoms of pain cannot be used to rate an otherwise noncompensable limitation of flexion as well as a compensable rating for extension. Finally, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, Diagnostic Code 5257 for knee, recurrent subluxation or lateral instability slight instability warranted a 10 percent, moderate warranted a 20 percent, and severe warranted a 30 percent. Diagnostic Code 5257, however, contained no definition of what constituted slight, moderate, or severe recurrent subluxation or lateral instability. As of February 7, 2021, under the amended criteria, Diagnostic Code 5257 says the following regarding knee, other impairment of, patellar instability a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker warrants a 10 percent. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker warrants a 20 percent. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or walker. Under the pre-February 7, 2021, Diagnostic Code 5257, the Board finds, in defining slight, moderate, severe, in a case where a Veteran attest to lateral instability but objective testing does not reveal evidence of instability such instability is no more than slight. That is the case here as the Veteran has attested to instability, but tests done during examination have not revealed evidence of instability. Regarding the current Diagnostic Code 5257, the Veteran’s patellofemoral condition has not required a surgical repair. As such, while there is a diagnosed condition involving the patellofemoral complex with recurrent instability no more than a 10 percent is warranted. Therefore, the Veteran is entitled to a 10 percent rating under either version of Diagnostic Code 5257. In conclusion, the Board finds that the evidence of record supports a separate initial rating of 10 percent, but no more, for patellofemoral pain syndrome based on instability. Otherwise, the evidence of record is against the Veteran’s claim for a rating in excess of 10 percent for left knee patellofemoral pain syndrome. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. An initial rating in excess of 10 percent for mitral valve prolapse with bradycardia and angina prior to May 6, 2013, and in excess of 30 percent thereafter is remanded. As noted by the Court of Appeals for Veterans Claims, the September 2017 VA examination was inadequate to the extent the examiner failed to describe what the symptoms of the Veteran’s service-connected mitral valve prolapse, bradycardia, and angina were when they were active during the appeal period, such as during the 2009 and 2014 VA examinations. The VA examiner also failed to describe whether or how the Veteran’s service-connected conditions affected his METS level or other rating criteria when the conditions were active. Such a discussion by the VA examiner would allow the Board to appropriately determine the severity of the Veteran’s service-connected heart conditions, including staged ratings if applicable, over the appeal period. A retrospective medical opinion is needed to assess the effects of the Veteran’s service-connected cardiac disabilities from 2008 to the present. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (recognizing that a retrospective medical opinion may be necessary and helpful in the absence of medical records). 2. TDIU prior to May 6, 2013, is remanded. The Board notes that the issue of entitlement to a total disability rating based on individual unemployability cannot be adjudicated until the higher staged heart ratings are addressed because they are intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the retrospective and current severity of his service-connected mitral valve prolapse with bradycardia and angina. The examiner should: (a.) Identify all current cardiovascular conditions for which the Veteran is diagnosed as well as any cardiovascular condition the Veteran has been diagnosed with during the period since 2008. (b.) To the extent the examiner can separate the symptoms of the Veterans service-connected mitral valve prolapse, bradycardia, and angina from symptoms caused by other non-service connected cardiovascular conditions, the examiner should describe what the symptoms of the Veteran’s service-connected mitral valve prolapse, bradycardia, and angina are currently as well as what they were during the period since 2008. If it is not possible to discern what symptoms are attributable to the Veteran’s service-connected mitral valve prolapse, bradycardia, and angina from what symptoms are attributable to other non-service-connected cardiovascular conditions the examiner should make that clear in the report. (c.) The VA examiner should specifically address whether current METS levels are attributable to service-connected mitral valve prolapse, bradycardia, and angina or a non-service-connected cardiovascular condition as well as review the record since 2008 and indicate whether any METS levels contained therein are attributable to service-connected mitral valve prolapse, bradycardia, and angina or a non-service connection condition vascular condition. If it is not possible to discern what METS levels are attributable to the Veteran’s service-connected mitral valve prolapse, bradycardia, and angina from what METS levels are attributable to other non-service-connected cardiovascular conditions the examiner should make that clear in the report. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Connally, 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.