Citation Nr: 21008350 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 15-28 287 DATE: February 16, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome is denied. Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral syndrome is denied. Entitlement to an initial disability rating in excess of 20 percent for left knee recurrent subluxation is denied. Entitlement to an initial disability rating in excess of 20 percent for right knee recurrent subluxation is denied. FINDINGS OF FACT 1. Flexion in either knee is not limited to 30 degrees and extension in each knee is not limited to 15 degrees. 2. No more than moderate recurrent subluxation or lateral instability is shown in either knee. 3. The service-connected residuals in either knee do not involve recurrent subluxation or lateral instability that resulted in an unrepaired or failed repair of a complete ligament tear or patellar instability manifested as a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for patellofemoral syndrome of either knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5260, 5261 (2020). 2. The criteria for a rating in excess of 20 percent recurrent subluxation in either knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5257 (to include under revisions effective from February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1996 to December 2003. This case was remanded by the Board of Veterans’ Appeals (Board) in March 2019 and May 2020 and is now ready for appellate review. The Veteran testified before the undersigned Veterans Law Judge during an August 2018 hearing. A transcript of the hearing is associated with the Veteran’s claim file. Another appeal with respect to claims for service connection for right hip arthritis, left hip arthritis, bilateral pes planus, and spinal osteoporosis will be the subject of a separate Board decision under the provisions of the Appeals Modernization Act. I. Legal Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the Veteran’s entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. Standard range of knee motion is from zero degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003 (2020). DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Traumatic arthritis is rated as for degenerative arthritis. 5010. Slight recurrent subluxation or lateral instability of a knee warrants a 10 percent rating under DC 5257. A 20 percent rating requires moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under DC 5260, a 10 percent is warranted where flexion is limited to 45 degrees. A rating of 20 percent is warranted where flexion is limited to 30 degrees and a rating of 30 percent is warranted were flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. The maximum assignable rating for limitation of knee flexion under DC 5260 is 30 percent. Id. Under DC 5261, a 10 percent rating is warranted where extension is limited to 10 degrees and a 20 percent rating is warranted where extension is limited to 15 degrees. A rating of 30 percent is warranted where extension is limited to 20 degrees while a 40 percent rating is warranted where extension is limited to 30 degrees. 38 C.F.R. § 4.71a, DC 5261. A 50 percent is warranted where extension is limited to 45 degrees. Id. A 30 percent is warranted for moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Revisions to DC 5257 effective from February 7, 2021, provide for a 30 percent rating for recurrent subluxation or instability resulting in an unrepaired or failed repair of a complete ligament tear that causes persistent instability and requires a medical provider prescription of both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 85 FR 76464, Nov. 30, 2020. These revisions to DC 5257 also provide for a 30 percent rating for patellar instability resulting in 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 a walker. Id. Note (1) under the revisions to DC 5257 states that with respect to patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id. Note (2) under these revisions provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as “surgical repair” for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. VA’s General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003/5010 and 5257, respectively. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). In VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998), VA’s General Counsel further explained that, to warrant a separate rating, the limitation of motion need not be compensable under DC 5260 or 5261; rather, such limited motion must at least meet the criteria for a zero (0) percent rating. The VA General Counsel has also held that separate ratings under 38 C.F.R. § 4.71a, DCs 5260 and 5261 may be assigned for limitation of flexion and extension of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). II. Analysis A February 2010 rating decision granted service connection for patellofemoral syndrome of each knee at a disability rating of 10 percent for each knee under 5260. A later rating decision issued in September 2014 granted service connection for recurrent subluxation in each knee and assigned a 20 percent rating for each knee under DC 5257. The Veteran has perfected an appeal with respect to the propriety of the 10 percent ratings assigned under DC 5260 and the initial 20 percent ratings assigned under DC 5257. Summarizing the most pertinent evidence with the above criteria in mind, reports from a January 2010 VA examination of the knees showed no swelling or laxities. There was tenderness on the medial and lateral aspect of both knees. Flexion in each knee was to 140 degrees with mild pain on left knee flexion and extension was to 10 degrees in each knee with mild pain in the right knee on both motions. There was no additional loss of motion during repetitive use in either knee and the examiner estimated that the Veteran would have no additional limitation of motion in either knee during flareups. The impression was patellofemoral syndrome in each knee and the examiner stated that it was at least as likely as not that such was related to in-service parachute jumping. Thereafter, an August 2014 VA examination of the knees showed the Veteran reporting bilateral dislocations that cause his knees to buckle and require him to extend the knees or rub them to put them back in place. Declining, inclining, and squatting were said to cause pain and the Veteran described constant sharp knee pain to a level of 8/10. The Veteran reported that Motrin helped but did not fully resolve his knee pain. He stated that had had not received treatment for his knees over the prior 2 years. The Veteran indicated that due to his knee problems, he was not able to jog or jump and that after standing more than 15 minutes or walking for about a quarter mile, his knees tended to swell with pain due to increased pressure. The Veteran reported flareups of knee pain, indicating that although he has constant pain, flare-ups occurred when his knees popped out of place which resulted in intense sharp pain that persisted until he could place the knees back in place. After such flare-ups, the Veteran reported that his knees became more sore than usual and that this soreness could last a few minutes to days. Range of motion testing at the August 2014 VA examination showed 105 degrees of right knee flexion with objective evidence of pain at 85 degrees and 110 degrees of left knee flexion with objective evidence of pain at 100 degrees. Extension in each knee was full without pain. Repetitive motion resulted in no additional loss of motion but was said to result in less movement than normal, excess fatigability, incoordination, an impaired ability to execute skilled movements smoothly, and pain on movement in each knee. Tenderness or pain to palpation to the joint line or soft tissues of either knee was not demonstrated. The Veteran was said to have a history of moderate recurrent patellar subluxation/dislocation. The examiner found that the Veteran’s knee disability impacted the Veteran’s ability to work to the extent that he was not able to run and there were limitations on how long he could stand and walk. With respect to the criteria of Mitchell, the August 2014 examiner stated that pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups or when the knees were used repeatedly over a period of time. Severe pain and weakness were said to be the signs/symptoms that caused the limitations associated with flare-ups and weakness, fatigability, and incoordination of moderate severity were said to be the signs/symptoms that caused the limitations associated with repetitive use. The examiner stated that the exact degrees of planes of motion affected during flare-ups could not be determined by the Veteran’s history and physical examination and noted that the Veteran was not in a flare state during the examination. At an October 2019 VA examination of the knees, the Veteran described having worsening pain, swelling, reduced motion, locking, and hyperextension in his knees. The Veteran at that time reported that he has flare-ups involving the knees and described his flare-ups as “if I am walking and my steps extend from normal range I suffer from [a] flare-up. If I try to run, my knees flare up.” The VA examiner checked “no” with respect to whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare ups. The VA examiner indicated the range of motion during flare-ups was the same as the initial range of motion, which consisted of 60 degrees of flexion in the left knee, 70 degrees of flexion in the right knee, and full extension in each knee. A history of moderate recurrent subluxation and lateral instability was reported. The most recent May 2020 Board remand found fault with the October 2019 VA examination as follows: Here, it does not appear that the VA examiner obtained enough information from the Veteran regarding the severity, frequency, duration, characteristics and functional loss related to his flare-ups. Furthermore, the VA examiner seems to contradict herself in the examination report. In terms of functional impact regarding employment, she stated that the Veteran would be unable to perform work tasks involving ambulation or physical labor as he cannot walk for too long. However, as stated earlier, she noted that pain, weakness, fatigability or incoordination does not significantly limit functional ability with flare-ups. The Board finds that the October 2019 examination report did not adequately describe the functional effects of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). (VA examiners must “estimate, ’per [the] Veteran,’ to what extent, if any, [flareups] affect functional impairment.”). Here, the Veteran reported flare-ups of pain in his right and left knees and the examiner did not estimate to what extent those flare-ups impaired the knee’s functioning. Essentially, it appears that the VA examiner failed to account for the Veteran’s additional functional limitations during flare-ups. As such, this renders the examination as inadequate under Sharp. An addendum clarification is required as the examiner found that flare-ups did not further limit the Veteran’s ROM [range of motion] despite the Veteran’s indication that his flare-ups impeded his ability to walk and run. See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011) (a VA examination report must evaluate whether there are limitations to "the ability 'to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance'’) (quoting 38 C.F.R. § 4.40). The May 2020 Board remand also noted that because the October 2019 VA examination of the knees demonstrated evidence of pain with weight bearing in both knees, range of motion findings for both weight bearing and non-weight-bearing in the knees had to be obtained. Correia v. McDonald, 28 Vet. App. 158 (2016). As such, this remand requested that the Veteran be afforded another VA examination of the knees to obtain the additional findings outlined therein. The VA examination of the Veteran’s knees requested in the May 2020 Board remand was accomplished in October 2020, with the Veteran at that time reporting that he was experiencing an almost constant stiff and aching/throbbing bilateral knee pain. This pain was reported as becoming sharp with prolonged standing, with the knees in prolonged flexion, and with prolonged walking. The Veteran identified the lateral aspect of each knee as being the focal point for this pain. He described flare-ups consisting of a sharp/stabbing knee pain occurring 2 to 3 times per week resulting in his being unable to weight-bear for the duration of the pain. The Veteran also stated that he cannot stand in weight bearing for more than 45 to 60 minutes without having to transition to a seated position as a result of his chronic bilateral knee pain. Range of motion testing at the October 2020 VA examination showed flexion to 110 degrees with pain and full extension in each knee. Repetitive motion resulted in no additional loss of motion or functioning. The examiner stated that the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups, and that pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups. However, the examiner described no additional loss of motion with flare-ups. A history of moderate recurrent subluxation and lateral instability in each knee was reported and 0 to 5 millimeters of medial and lateral instability in each knee was demonstrated upon examination. The knee disability was said to impact the Veteran’s ability to work to the extent that he would be poorly suited to work in a vocation which requires prolonged standing and walking. With respect to Correia, the examiner noted that there was no objective evidence of pain on non-weight bearing in either knee and that passive and active motion in each knee was the same. VA outpatient treatment reports of record, dated at the time of this writing through October 2020, do not reflect clinical findings that differ in any significant degree as pertinent to the applicable rating criteria from those contained in the reports from the VA examinations set forth above. Applying the pertinent legal criteria to the facts set forth above, a rating in excess of 10 percent for limitation of flexion due to patellofemoral syndrome in either knee under DC 5260 would require flexion to be limited to 30 degrees. Flexion was measured well beyond 30 degrees at the VA examinations set forth above to, at worst, 60 degrees in the left knee and 70 degrees of flexion in the right knee in October 2019, and there is otherwise no clinical evidence demonstrating that flexion is limited to 30 degrees in either knee. As for a rating in excess of 10 percent for limitation of extension due to patellofemoral syndrome in either knee, DC 5261 provides that extension must limited to 15 degrees to warrant a 20 percent rating. This degree of loss of extension is not objectively demonstrated by the VA examination reports set above or any other clinical evidence. As such, ratings in excess of 10 percent for limitation of flexion or extension due to patellofemoral syndrome in either knee cannot be assigned. 38 C.F.R. § 4.71a, DCs 5260, 5261. As for increased compensation for recurrent subluxation in either knee, under the criteria codified at DC 5257 in effect prior to the recent regulatory revisions, severe recurrent subluxation or lateral instability would be required for an increased rating of 30 percent. The last three VA examinations set forth above only reflected a history of moderate recurrent subluxation and lateral instability in each knee and the 0 to 5 millimeters of medial and lateral instability in each knee shown at the most recent VA examination conducted in October 2020 cannot reasonably described as “severe” instability. There is otherwise no clinical evidence of severe recurrent subluxation or lateral instability in either knee. With respect to a rating in excess of 20 percent under the revisions to DC 5257 effective from February 7, 2021, such would, at a minimum, require a disability manifested as recurrent subluxation or lateral instability that resulted in an unrepaired or failed repair of a complete ligament tear or patellar instability manifested as a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair. Such manifestations are not shown in the reports from the VA examination described above or by any other clinical evidence, nor is it claimed that such manifestations have occurred. In short therefore, ratings in excess of 20 percent for recurrent subluxation in either knee cannot be assigned. 38 C.F.R. § 4.71a, DC 5257 (as in effect prior to and from February 7, 2021). In making the determinations above, the undersigned has given proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 and the holdings in DeLuca and Mitchell, but finds that increased compensation is not warranted under these provisions. In this regard, the most recent VA examinations have reflected consideration of these revisions, with the October 2020 VA examination specifically finding that flare-ups produce no additional limitation of motion. With respect to the examination finding that pain, weakness, fatigability or incoordination significantly limited functional ability during flare-ups, the compensation currently assigned for the service-connected knee disabilities contemplates significant impairment, to include any occurring during flare-ups. Finally, as to the principles of Correia, consideration of such does not warrant increased compensation. In this regard, the October 2020 VA examination found that there was no objective evidence of pain in either knee on non-weight bearing and that passive and active motion in each knee was the same. In making each of the above rating determinations, the Board observes that it has considered carefully the Veteran’s contentions with respect to the nature of the service-connected disabilities at issue and notes that his lay testimony is competent to describe certain symptoms associated with these manifestations. However, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected manifestations at issue. As such, while the Board accepts the Veteran’s testimony with regard to the matters he is competent to address, the Board places more probative weight upon the competent medical evidence with regard to the specialized evaluation of functional impairment; namely, the assessments of the severity of disability due to the service connected disabilities in the clinical evidence discussed above. The record does not show nor does the evidence suggest that the Veteran is unable to obtain or maintain substantially gainful employment and consideration of individual unemployability is not warranted. Finally, in making the rating determinations above, the Board has considered the doctrine of reasonable doubt but finds that the preponderance of the evidence is against the assignment of increased ratings for the disabilities addressed above. As such, increased compensation for the service-connected knee disabilities may not be granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ahlberg, Andrew 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.