Citation Nr: 21011398 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-35 626 DATE: March 1, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for left patellar tendonitis is denied. Entitlement to an initial 20 percent disability rating, but no higher, for left knee instability is granted. FINDINGS OF FACT 1. The Veteran’s left patellar tendonitis is manifested by painful motion but is not manifested by objective evidence of flexion limited to 30 degrees, or less than full extension. 2. Resolving all reasonable doubt in the Veteran’s favor, the Veteran’s left knee instability is moderate in severity. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for left patellar tendonitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Codes 5260, 5261. 2. The criteria for entitlement to an initial 20 percent disability rating, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1981 to July 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Appeals (VA) regional office (RO) in Waco, Texas, which, in pertinent part declined to increase disability ratings for the Veteran’s service-connected costochondritis and left patellar tendonitis. The Veteran timely appealed, requesting that a Decision Review Officer (DRO) re-evaluate his claims. In August 2015, a DRO decision was issued increasing the disability rating for the Veteran’s service-connected left patellar tendonitis to 10 percent, effective September 15, 2011, and separately service-connecting left knee instability with a 10 percent rating, effective April 8, 2015. In August 2018, the Board considered and denied the increased rating claims regarding the Veteran’s service-connected costochondritis and left patellar tendonitis. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In September 2019, VA’s General Counsel and the Appellant (through his attorney) filed a Joint Motion for Remand (JMR) with respect to the appealed claims. By an Order dated October 2019, the Court granted the JMR, vacated the August 2018 Board decision, and remanded the issues back to the Board for action consistent with the JMR. In April 2020, the issues were returned to the Board and it adjudicated the issue of entitlement to an increased rating for service-connected costochondritis and remanded the issues of entitlement to increased ratings for left patellar tendonitis and left knee instability. The claim of entitlement to an increased rating for left patellar tendonitis was remanded for the provision of a new VA examination and current and retrospective opinions concerning the Veteran’s limitation of functional ability with repetitive use over time or during flare-ups. The claim of entitlement to an increased rating for left knee instability was remanded for the issuance of a statement of the case, as one had not been issued concerning this specific disability. The Board notes that the submission of a VA Form 9 (substantive appeal) following the issuance of an SOC concerning left knee instability is not required, as this claim is part and parcel of the Veteran’s increased rating claim for left patellar tendonitis. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson, 12 Vet. App at 119; Hart v. Mansfield, 21 Vet. App. 505 (2008). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). 1. Entitlement to a disability rating in excess of 10 percent for left patellar tendonitis is denied. The Veteran maintains entitlement to a disability rating in excess of 10 percent for left patellar tendonitis, currently evaluated under Diagnostic Code 5260. He avers that his disability is more severe than is reflected by his current disability rating. Standard motion of a knee joint is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 concerns limitation of leg flexion. A zero, non-compensable rating is warranted where flexion is limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted where flexion is 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. Diagnostic Code 5261 pertains to limitation of leg extension. A zero, non-compensable rating is warranted where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating is warranted where extension is limited to 20 degrees. 38 C.F.R. § 4.71a, DC 5261. Turning to the evidence of record, a May 2011 VA treatment note documents complaints of left knee pain, rated as 6/10. The Veteran stated that there were no known relieving or aggravating factors except Tramadol. He denied any associated fever, chills, or joint pain. On physical examination, his extremities were negative for edema, and there was no motor or sensory loss. Deep tendon reflexes were present and symmetrical. Straight leg raising test was 65 degrees. There was no deformity, effusion, or bony crepitus noted. The examiner noted a diagnosis of degenerative joint disease of the knees. During a June 2011 VA ambulatory care physical, an examiner noted no weakness, numbness, balance impairment, cyanosis, clubbing, or edema, but did note joint stiffness. The Veteran underwent a VA examination in April 2012. There, he reported pain over the infrapatellar tendon of the left knee upon squatting or bending to lift heavy objects and with stair use. The Veteran described the pain as brief, moderate, and almost daily. He denied swelling, giving way, locking, lack of endurance, or flare-ups of the condition. Range of motion testing was performed. Left knee flexion was to 130 degrees without objective evidence of painful motion. Left knee extension was to 0 degrees without objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions. Left knee flexion and extension were unchanged; there was no additional limitation of range of motion or functional loss/impairment following repetitive-use testing. Mild tenderness without swelling over the infrapatellar tendon which inserts in a prominent tibial tuberosity (Osgood Schlatter’s) was observed. Muscle strength testing yielded normal results. Joint stability testing was normal. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran did not have nor had he had “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The Veteran did not have any meniscal conditions or surgical procedures for a meniscal condition. He had not undergone joint replacement or other surgical procedures for his left knee. The Veteran denied the use of assistive devices. The functioning of his left knee was not so impaired such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Diagnostic testing was performed. Degenerative or traumatic arthritis was not documented, nor was there evidence of patellar subluxation. There were no other significant diagnostic test findings and/or results. The Veteran was diagnosed with left patellar tendonitis. At another VA ambulatory care physical performed in February 2013, an examiner noted no weakness or edema but observed a positive straight leg raising test on the left side. The examiner also noted that range of motion (movement) of the left knee was possible. The Veteran was started on Gabapentin and Tramadol. The Veteran complained of a flare-up of constant, continuous left knee pain that was exacerbated by certain types of movement in May 2013. He rated his pain as 7/10. He reported that the Tramadol was not helping at all and that Gabapentin only helped at bedtime. He reported that he liked Motrin in between for pain relief. On examination, the Veteran’s range of motion was limited. His gait and balance were steady. There was no acute change or injury to the knee. That August, the Veteran continued to complain of left knee pain which he then rated as 6/10. He stated that the pain worsened with prolonged standing, bending, and repetitive activity. Stretching helped alleviate the pain. An examiner noted no edema, but a positive straight leg raising test on the left side. He also observed that left knee extension was slightly restricted. In December 2013, the Veteran went to the VA orthopedic clinic for a consultation. He stated that most of the pain originated in the anterior of the knee and resulted in pain with squatting, bending, going up stairs, and rising from a seated position. He stated that he took Ibuprofen but only when pain was more severe. He requested a specialized brace as he reported falls due to his left knee giving way. On physical examination, there was no erythema, warmth, or effusion. Infrapatellar facets and lateral facet were tender with palpation. The Veteran had a positive patella grind test. There was crepitus with active range of motion 0 to 135 degrees. Collateral ligaments were intact with a slight increase in laxity on the medial compartment. The Veteran had no joint line pain. He had a negative McMurray’s test, a negative Lachman’s test, and anterior knee pain with knee maneuvers. X-rays showed medial and lateral joint spaces were well-maintained as well as patella femoral. There was a small osteophyte on the patella tendon. The examiner diagnosed the Veteran with left anterior knee pain with no locking of the knee. The Veteran was given some in-home knee exercises as he did not want physical therapy, and a knee brace was provided later that month. The Veteran underwent another VA examination in April 2015. He complained of sensitivity to the left patella that increased with prolonged standing or bending and reported the use of Ibuprofen for pain and a knee brace for instability. He denied flare-ups. Range of motion testing was performed. Left knee flexion was to 95 degrees with pain. Left knee extension was to 0 degrees. This abnormal range of motion contributed to functional loss characterized as pain on movement and less movement than normal. There was no evidence of pain with weightbearing. There was objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with three repetitions. Left knee flexion and extension were unchanged; there was no additional limitation of range of motion or functional loss/impairment following repetitive-use testing. The Veteran was not examined immediately following repetitive use over time. The examiner found that the examination results neither supported nor contradicted the Veteran’s statements describing functional loss with repetitive use over time. He was unable to state whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with repeated use over time without resorting to mere speculation. He explained that there was no conceptual or empirical basis for making such a determination without directly observing function under this condition. As previously noted, the Veteran did not report flare-ups of the left knee. Muscle strength testing yielded normal results; there was no reduction in muscle strength, muscle atrophy, or ankylosis. Joint stability testing was performed. Medial joint instability was seen in the left knee. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran did not have nor had he had “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The Veteran did not have any meniscal conditions or surgical procedures for a meniscal condition. He had not undergone joint replacement or other surgical procedures for his left knee. The Veteran endorsed the regular use of a knee brace. The functioning of his left knee was not so impaired such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The diagnosis of left patellar tendonitis was confirmed and continued. In October 2015, an X-ray of the left knee was performed and compared to the December 2013 X-ray. There was no interval change. No fractures or dislocations were demonstrated. Spurring was demonstrated involving the anterior patella at the insertion quadriceps and patellar tendons. The bones and soft tissues were otherwise within normal limits for the Veteran’s age. No significant degenerative changes were identified. In January 2018, the Veteran was provided another VA examination. There, the Veteran reported constant left knee pain with flare-ups. He stated that he used Motrin and Naproxen as needed and applied Tiger Balm with fair results. During flare-ups, he reported that he could not do anything. The condition resulted in difficulty walking more than a couple of blocks, difficulty standing for more than 10 to 15 minutes, and difficulty bending and raising the knees. Range of motion testing was performed while the Veteran was sitting due to pain. Left knee flexion was to 100 degrees. Left knee extension was to 0 degrees. Pain was noted on both flexion and extension and with weightbearing. There was mild tenderness on palpation at the left anterior knee. There was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with three repetitions. Left knee flexion and extension were unchanged; there was no additional limitation of range of motion or functional loss/impairment following repetitive-use testing. The Veteran was not examined following repetitive use over time or during a flare-up. The examiner noted that the examination results were neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss under those conditions. However, he noted the Veteran’s self-reports of pain, fatigue, weakness, lack of endurance, and incoordination following repetitive use over time and during flares. Muscle strength testing yielded normal results; there was no reduction in muscle strength, muscle atrophy, or ankylosis. Joint stability testing was normal. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran did not have nor had he had “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The Veteran did not have any meniscal conditions or surgical procedures for a meniscal condition. He had not undergone joint replacement or other surgical procedures for his left knee. The Veteran endorsed the regular use of a knee brace for daily activities. The functioning of his left knee was not so impaired such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The Veteran declined current knee X-rays and the examiner reiterated the results of the October 2015 imaging. The diagnosis of left patellar tendonitis was confirmed and continued. The Veteran attended another VA examination in February of the following year. There, he reported pain upon walking and instability. He stated that he used Motrin for pain relief. He denied flare-ups. Range of motion testing was performed. Left knee flexion was to 130 degrees. Left knee extension was to 0 degrees. The examiner noted pain with flexion. There was objective evidence of left knee pain with both weightbearing and non-weightbearing. There was objective evidence of moderate to severe localized tenderness or pain on palpation of the joint or associated soft tissue in the condylar areas of the right knee that resulted in left knee instability. There was also objective evidence of pain with weightbearing and crepitus. The Veteran was able to perform repetitive-use testing with three repetitions. There was additional loss of range of motion after three repetitions. Left knee flexion was to 125 degrees. Left knee extension was to 0 degrees. Pain caused the additional functional loss. The Veteran was not examined following repetitive use over time or during a flare-up. The examiner noted that the examination results were neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss following repetitive use over time. He found that pain, weakness fatigability, or incoordination did not significantly limit the Veteran’s functional ability with repeated use over a period of time. He noted that he could not describe any functional loss with repeated use in terms of range of motion due the variability of factors leading to variability of range of motion loss. As previously noted, the Veteran did not report flare-ups of the left knee. Additional factors contributing to the Veteran’s left knee disability included weakened movement, disturbance of locomotion, and interference with standing. Muscle strength testing revealed reduction in left knee muscle strength on flexion and extension. No muscle atrophy or ankylosis were observed. Joint stability testing reflected medial instability in the left knee. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran did not have nor had he had “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The Veteran did not have any meniscal conditions or surgical procedures for a meniscal condition. He had not undergone joint replacement or other surgical procedures for his left knee. The Veteran endorsed the constant use of a knee brace for instability. The functioning of his left knee was not so impaired such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. New imaging studies were not obtained. Concerning the functional impact of the Veteran’s disability, the examiner noted pain in both knees upon standing, walking, and ascending stairs, and that the Veteran was more left knee limited than right knee limited. A diagnosis of left knee instability was given. The Veteran’s most recent VA examination was performed in October 2020. There, he reported pain, soreness, and weakness in his left knee. He stated that he used pain medication, topical cream, and wrapped and soaked his knee to treat it. The Veteran indicated that he could not stand or walk for prolonged periods and could not squat at all. He denied flare-ups. Range of motion testing was performed. Left knee flexion was to 120 degrees. Left knee extension was to 0 degrees. Pain was noted on flexion and extension and with weightbearing and non-weightbearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue or crepitus. The Veteran was able to perform repetitive-use testing with three repetitions. There was additional functional loss after three repetitions due to pain; however, there was no additional limitation of range of motion. The Veteran was examined immediately after repetitive use over time and pain, weakness, fatigability, or incoordination did not significantly limit his functional ability. As previously noted, the Veteran did not report flare-ups of the left knee. Muscle strength testing yielded normal results; there was no reduction in muscle strength, muscle atrophy, or ankylosis. Joint stability testing was normal. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran did not have nor had he had “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The Veteran did not have any meniscal conditions or surgical procedures for a meniscal condition. He had not undergone joint replacement or other surgical procedures for his left knee. The Veteran endorsed the regular use of a brace, cane, and/or walker for his left knee instability. The functioning of his left knee was not so impaired such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. New imaging studies were not obtained. Concerning the functional impact of the Veteran’s disability, the examiner noted the Veteran’s reports that he could not walk or stand for long. The Veteran’s diagnosis of left knee instability was confirmed and continued. In December 2020, the October 2020 VA examiner provided an addendum opinion concerning whether pain significantly limited the Veteran’s functioning when the left knee joint was used repeatedly over a period of time or during flare-ups. Following consideration of the examination she provided in October 2020, consideration of the Veteran’s complete history and subjective complaints, and a review of the available record, the examiner determined that she had no basis on which to find that pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with repetitive use or during flare-ups. After careful review of the record, the Board finds that the most probative evidence does not show that the Veteran’s left knee patellar tendonitis manifested functional impairment to the extent that a rating in excess of 10 percent may be assigned. The Veteran’s left knee disability has been consistently manifested by painful range of motion, not otherwise compensable. Such impairment is contemplated by the current 10 percent rating. The Veteran’s range of motion has not met the requirements for a compensable rating under the relevant criteria for limited motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Specifically, the Veteran’s flexion was limited, at its lowest, to 65 degrees during a straight leg raising test performed in May 2011. Additional range of motion testing for the appellate period documents left knee flexion from at least 95 degrees to as high as 135 degrees. Further, while an August 2013 treatment record indicates that the Veteran’s extension was slightly restricted, there is no evidence to support a finding that it was compensably restricted; all additional range of motion testing show no limitation of extension. Thus, the objective medical evidence of record does not show evidence of flexion limited to 30 degree or limitation of extension to the extent that either a separate or a higher compensable rating may be assigned. Id. The Board has considered functional impairment due to the Veteran’s service-connected left patellar tendonitis and acknowledges the subjective complaints of pain made throughout the course of the Veteran’s claim, as well as the objective evidence of pain on movement and reduced movement during range of motion testing. While the Veteran experiences pain, the Board finds that the 10 percent evaluation assigned for the left patellar tendonitis limitation of motion adequately portrays any functional impairment, pain, and weakness that the Veteran experienced as a result of use of his left knee. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Board bases this determination in part on the competent, credible December 2020 findings of the VA examiner who reviewed the entirety of the record, examined the Veteran, and duly considered his subjective complaints prior to finding that there was no empirical basis on which to find that such pain and weakness resulted in additional functional loss. Therefore, a higher evaluation for left knee patellar tendonitis based on functional loss is not warranted for the period on appeal. See DeLuca, 8 Vet. App. at 204-06. The Board has also considered whether the Veteran is entitled to any additional separate ratings for his left knee patellar tendonitis. The clinical evidence does not establish ankylosis, dislocated semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum; therefore, Diagnostic Codes 5256, 5258, 5262, 5263 are not for application. The Board notes that the Veteran has been separately service-connected for left knee instability under Diagnostic Code 5257 and will discuss his increased rating claim concerning that disability in the next section. For these reasons, a disability rating in excess of 10 percent for left patellar tendonitis is denied because the overall disability picture for the left knee does not more closely approximate the criteria for a higher rating under the applicable Diagnostic Codes. 38 C.F.R. § 4.71a. Therefore, the preponderance of the evidence weighs against this claim. 38 C.F.R. § 4.3. 2. Entitlement to an initial 20 percent disability rating, but no higher, for left knee instability is granted. The Veteran maintains entitlement to an initial disability rating in excess of 10 percent for left knee instability, currently evaluated under Diagnostic Code 5257. He avers that his disability is more severe than is reflected by his current disability rating. Under Diagnostic Code 5257, a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Diagnostic Code 5257 is based upon instability and subluxation, not limitation of motion, as a result, the factors set forth in 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 do not apply. DeLuca v. Brown, 8 Vet. App. 202 (1995). The words “slight,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The evidence of record contains multiple statements from the Veteran discussing his left knee instability, including his descriptions of his knee giving way and his use of assistive devices. At the April 2015 VA examination, medial instability was objectively observed. At the February 2019 VA examination, the examiner found objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue in the condylar areas of the right knee that resulted in moderate left knee instability. Conversely, at the January 2018 and October 2020 VA examinations there was no documented objective evidence of instability. Based on the evidence of record and resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran’s competent, credible lay statements show a 20 percent rating under Diagnostic Code 5257 is warranted. The Veteran reported instances of instability and has stated that his knee frequently gave way, which led him to initially request a brace in December 2013 and to later incorporate the use of a cane and a walker. The most detailed assessment of his instability is found in the February 2019 examination report, where the examiner found the condition was moderate, basing this characterization on the Veteran’s subjective history and a clinical evaluation. Thus, the Board finds the Veteran has moderate instability. However, the Board determines that a higher rating is not warranted because the Veteran’s examinations and medical records present inconsistent evidence of instability, indicating that the condition may wax and wane, and in the records that do endorse it, it is not characterized as severe. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has moderate instability and a higher, 20 percent initial disability rating is granted. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.