Citation Nr: 21011022 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 16-11 503A DATE: February 26, 2021 ISSUES 1. Entitlement to a disability rating in excess of 10 percent for service-connected right knee patellofemoral syndrome with right shin splints. 2. Entitlement to a disability rating in excess of 10 percent for service-connected left knee patellofemoral syndrome with left shin splints. ORDER Entitlement to a disability rating in excess of 10 percent for service-connected right knee patellofemoral syndrome with right shin splints is denied. Entitlement to a disability rating in excess of 10 percent for service-connected left knee patellofemoral syndrome with left shin splints is denied. FINDINGS OF FACT 1. The Veteran’s service-connected right knee patellofemoral syndrome with right shin splints is manifested by painful flare ups that occur 2-3 times per month, which are precipitated by exercise and overuse, but are alleviated by rest, ice and heat. At their worst, the range of motion of the Veteran’s right knee disability exhibits flexion limited to 115 degrees and full extension, with no reduction of muscle strength, no ankylosis, no joint instability, no meniscal conditions, and no genu recurvatum. The Veteran occasionally uses a knee brace. 2. The Veteran’s service-connected left knee patellofemoral syndrome with left shin splints is manifested by painful flare ups that occur 2-3 times per month, which are precipitated by exercise and overuse, but are alleviated by rest, ice and heat. At their worst, the range of motion of the Veteran’s left knee disability exhibits flexion limited to 115 degrees and full extension, with no reduction of muscle strength, no ankylosis, no joint instability, no meniscal conditions, and no genu recurvatum. The Veteran occasionally uses a knee brace. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for service-connected right knee patellofemoral syndrome with right shin splints have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for a disability rating in excess of 10 percent for service-connected left knee patellofemoral syndrome with left shin splints have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from April 2009 to September 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, a rating decision from September 2012 granted the Veteran’s claim of entitlement to service connection for patellofemoral syndrome of the bilateral knees, each at noncompensable disability ratings. In July 2013 the Veteran filed a timely Notice of Disagreement (NOD). Following a Statement of the Case (SOC), the Veteran filed a VA Form 9, and her claims were certified to the Board in November 2016. In May 2020, the Board remanded this matter for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In that May 2020 decision, the Board also acknowledged that despite the Veteran noting she was currently unemployed, at no point had the Veteran claimed that she was unemployed due to her service-connected disabilities. As such, the issue of entitlement to TDIU was not – and is not – currently before the Board. 38 U.S.C. § 7105 (b); 38 C.F.R. §§ 3.104, 20.1103. Following that May 2020 Board Decision, in a rating decision from December 2020, the RO increased the Veteran’s disability rating to 10 percent for both her right and left patellofemoral syndrome with shin splints. The effective date for the 10 percent ratings was September 24, 2011, the day that the Veteran separated from service, and thus, for the entire period on appeal. Having said that, the Board notes that the grant of increased ratings during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claims are still in controversy and on appeal. Id. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2).   Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to a disability rating in excess of 10 percent for service-connected bilateral knee patellofemoral syndrome with bilateral shin splints. In the Veteran’s NOD from July 2013, she indicated that she has “pain experienced with shin splints and running. I’ve been exposed to severe pain in both knees which makes it difficult to stand or walk at times.” These statements were echoed in her VA Form 9 from March 2016, whereby she wrote that she has shin splints, and “cannot bend or walk/run long distances without being in [a lot of] pain.” The Veteran’s Representative also submitted an Appellate Brief from May 2020 whereby they argue generally that the Veteran’s bilateral knee disability warrants a higher disability rating. The Veteran is competent to report the pain associated with her service-connected bilateral knee disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s service-connected bilateral patellofemoral syndromes of the right and left knees are each rated under Diagnostic Code 5260 and are therefore rated as musculoskeletal disabilities. 38 C.F.R. § 4.71a. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are related considerations. 38 C.F.R. § 4.45. The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). A recent Court decision also addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5260 (limitation of flexion). Diagnostic Code 5257 provides that an evaluation of 10 percent is assigned for slight recurrent subluxation or lateral instability, an evaluation of 20 percent is assigned when the impairment is moderate, and an evaluation of 30 percent is assigned when the impairment is severe. Diagnostic Code 5260 pertains to limited flexion of the knee. Flexion limited to 60 degrees is noncompensable. A 10 percent rating applies when flexion is limited to 45 degrees. A 20 percent rating applies when flexion is limited to 30 degrees. A 30 percent rating applies when flexion is limited to 15 degrees. Diagnostic Code 5261 pertains to limited extension. Extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. Under Diagnostic Code 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating when there is malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent rating for malunion of the tibia and fibula with marked knee or ankle disability; and a maximum rating of 40 percent for nonunion of the tibia and fibula with loose motion, requiring brace. 38 C.F.R. § 4.71a. The VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 (which provides for a 10 percent rating for a noncompensable limitation of motion or painful motion of an affected joint) and 5257, provided that a separate rating must be based upon additional disability. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Also, separate ratings may be assigned for limitation of flexion, limitation of extension, and subluxation of the same knee. Specifically, where a Veteran has both a compensable limitation of flexion, compensable subluxation, and a compensable limitation of extension of the same knee, the limitations must be rated separately to adequately compensate for functional loss associated with the disability. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). Turning to the available evidence, the Veteran was seen for a VA examination in April 2012. The Veteran was seen in person, and the Veteran’s claims file was reviewed. The examiner confirmed the Veteran’s diagnosis of bilateral patellofemoral syndrome with shin splints. During the exam, the Veteran reported pain, and some swelling, and stated that painkillers such as “motrin doesn’t help.” Flare ups were not reported during this exam. On range of motion (ROM) testing, the Veteran did not have any reduction to flexion or extension for either knee. She was able to perform repetitive use testing with no additional loss of ROM, and she demonstrated full muscle strength testing. The joints were stable, she had no subluxation/dislocation, meniscal conditions, and no additional abnormalities were noted. The Veteran’s predominant symptom was noted to be the subjective complaint of pain. The Board has reviewed the Veteran’s VAMC and CAPRI records for the relevant period on appeal. In most every circumstance, the Veteran’s primary complaint involves bilateral knee pain. See VAMC notes from November 2014, December 2014, April 2015, and May 2015. She has complained of discomfort in her knees while exercising, and that “pain increases with prolonged walking and running and sitting, and cold weather.” See December 2014 Physical Therapy Consult. A primary care note from January 2016 indicates that the Veteran has pain of the “bilateral knee without signs of inflammation,” but that it was “nontender [with] no change in ROM.” Further orthopedic studies from January 2016 note that the Veteran’s “knee joint space is well maintained, and the compartments are unremarkable.” The impression for each knee was “normal.” More recent records continue to find that the Veteran’s only symptom is listed as “complaints of pain,” to the bilateral knees. See May 2018 primary care note. As noted above, the Veteran’s claim was previously before the Board in May 2020. In that Decision the Board noted that the July 2019 examination report did not fully consider the Veteran’s competent statements regarding pain to both of her knees. As a result, the July 2019 examination was deemed inadequate under DeLuca v. Brown, 8 Vet. App. 202 (1995). Thus, her claim was remanded for a VA examination. That examination occurred in November 2020. The Veteran was seen in person, and her claims file was reviewed. The examiner confirmed the current diagnoses of the Veteran’s bilateral knees, and then noted her lay statements, including that she experiences flare ups. These flare ups were noted to be painful, “occur 2-3 times per month,” and that they are “precipitated by too much walking, going up and down stairs, weather changes, sitting too long.” Flare ups to both knees are alleviated by “rest, ice, [and] heat.” The Veteran’s ROM measurements were worst during a flare up, whereby both her right and left knees exhibited flexion and extension from 115 to 0 degrees respectively. Each knee was accompanied by pain, which contributed to functional loss. Full muscle strength was exhibited for each knee, and there was no noted ankylosis, no joint instability, no meniscal conditions, no genu recurvatum, and no further surgical procedures. The Veteran was noted to occasionally use a brace. There is no evidence that the VA examiners or the VAMC personnel were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s bilateral knee disabilities. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, as it relates to both of the Veteran’s service-connected knee disabilities, the Board finds that the severity of each more nearly approximates the current 10 percent disability rating. The Veteran’s right and left knee disabilities are predominantly characterized by the subject complaint of pain, and this has been true from the April 2012 VA examination, through the years of VAMC records, and during the most recent November 2020 VA examination. On ROM testing, the Veteran demonstrated (at worst) flexion to 115 degrees, and full extension. This measurement is better than the flexion and extension limitation requirements for the 20 percent disability ratings under DC 5260 and DC 5261, which would be the next highest disability rating allowed under the ratings criteria. In fact, the Board notes that the Veteran’s current ROM is better than the noncompensable rating under these diagnostic codes. Again, that ROM testing represented the Veteran’s symptoms when they were at their worst – during painful flare ups. The Board also notes that the Veteran is currently in receipt of the minimum compensable disability rating for that pain, under 38 C.F.R. § 4.59. The Board has also reviewed other relevant diagnostic codes and find that the Veteran is appropriately rated for both knee disabilities. At no point has she demonstrated ankylosis (DC 5256), recurrent subluxation (DC 5257), cartilage, semilunar, dislocated with frequent episodes of locking and effusion into the joint (DC 5258), impairment, including nonunion or malunion of the tibia and fibula (DC 5262), and/or Genu recurvatum (DC 5263). Importantly, the Board has also reviewed the recently updated musculoskeletal disability ratings as it relates to the knee. Given the available evidence, the Board finds that the changes to the diagnostic codes are not relevant to assessing the current severity of the Veteran’s service-connected knee disabilities. The only diagnostic change that could be relevant is to DC 5262, which now contains the addition of medial tibial stress syndrome (MTSS), for “shin splints.” Under the change, a 20 percent disability rating is offered for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. In this case however, while the Veteran has complained of shin splints, and while this diagnosis was confirmed by the November 2020 VA examiner, that examiner did not indicate that the Veteran’s shin splints required specific treatment, much less treatment that it is required for a 12-month period, thus making DC 5262 not applicable. See further, Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257, 5262). As such, the Board finds that the 10 percent disability rating more nearly approximates the current severity of the Veteran’s service-connected left and right patellofemoral knee disabilities, and the preponderance of the evidence is against an increase to either of those rating. As such, the benefit of the doubt rule is not for application, and the claims must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.