Citation Nr: 21011893 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-24 798 DATE: March 3, 2021 ORDER A rating in excess of 10 percent for service-connected left knee chondropathy with femoropatellar dysplasia (left knee disability) is denied. A rating in excess of 10 percent for service-connected right knee chondropathy with femoropatellar dysplasia (right knee disability) is denied. A separate additional 10 percent rating for left knee instability is granted from June 4, 2006, subject to the laws and regulations governing the award of monetary benefits. A separate additional 10 percent rating for right knee instability is granted from June 4, 2006, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran’s bilateral knee disability was manifested by painful movement, but has not been shown to result in ankylosis; dislocated meniscus, or removed meniscus causing frequent episodes of “locking,” pain, and effusion into the joint; flexion functionally limited to 30 degrees or more; extension functionally limited to 10 degrees or more; an impairment of the tibia and fibula; or genu recurvatum. 2. The Veteran’s bilateral knee disability has not been shown with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 3. From June 4, 2006, the day after separation from service, the evidence of record shows an overall left knee recurrent subluxation or instability most closely approximating the slight but not moderate or severe levels. Additionally, persistent instability and prescription of assistive devices for the left knee are not shown. 4. From June 4, 2006, the day after separation from service, the evidence of record shows an overall right knee recurrent subluxation or instability most closely approximating the slight but not moderate or severe levels. Additionally, persistent instability and prescription of assistive devices for the left knee are not shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5260-5024. 2. The criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5260-5024. 3. The criteria for a separate additional rating of 10 percent for a left knee disability due to instability from June 4, 2006, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5257. 4. The criteria for a separate additional rating of 10 percent for a right knee disability due to instability from June 4, 2006, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2000 to June 2006. This matter is on appeal from an October 2010 rating decision (November 2010 notification) of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran contacted VA (VA Form 21-4138/Statement in Support of Claim) and requested that the scheduled Board hearing be cancelled. The Board finds the Veteran’s hearing request to have been withdrawn. This claim was previously before the Board in August 2020, at which time it was remanded for further development to include a knee and lower leg VA examination. The Veteran’s increased rating claim has now returned to the Board for further appellate action. Increased Rating Bilateral Knee Disability The Veteran is seeking a disability rating in excess of 10 percent for her left and right service-connected knee disabilities. The Veteran contends that her service-connected bilateral chondropathy with femoropatellar dysplasia is more disabling than contemplated by the current evaluations. Specifically, the Veteran asserts increased pain with activity, increased stiffness and that her knees give out. See October 2020 Disability Benefits Questionnaire (DBQ); see also the Veteran’s representative’s January 2021 Appellate Brief. By way of history, the Veteran filed left and right knee service-connection claims in December 2006. In an April 2008 rating decision, she was granted service-connection for her right knee disability under DCs 5260-5024, and initially assigned a noncompensable rating effective June 4, 2006, a day after her separation from service. The Veteran’s left knee claim was denied. The Veteran filed a timely notice of disagreement (NOD) to the noncompensable right knee rating and the denial of service connection of the left knee. Subsequently, an October 2010 rating decision partially granted the Veteran’s right knee increased rating claim and increased the disability rating to 10 percent. In addition, due to clear and unmistakable error, the RO granted the Veteran’s claim for service-connection for her left knee disability under DCs 5260-5024. The RO assigned an initial 10 percent disability rating for the left knee, effective June 4, 2006, the day after the Veteran separated from service. While the rating decision granting service connection of the Veteran’s left knee is a complete grant of the benefit initially sought on appeal, the Veteran continued to seek higher ratings regarding both knees. See NOD received by VA October 2011. Ultimately, a June 2015 statement of the case denied the Veteran’s increase rating claims and the Veteran perfected an appeal to the Board. Here, the Veteran’s left and right knee chondropathy with femoropatellar dysplasia is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5260-5024. Diagnostic Code 5024 (tenosynovitis) provides a 10 percent evaluation for painful or limited motion of a major joint or group of minor joints. The Board notes that a revised 38 C.F.R. § 4.71a-Schedule of Ratings – Musculoskeletal System to include the DC 5024 criteria is effective from February 7, 2021. As such, effective from February 7, 2021 diseases under diagnostic codes, to include 5024 are evaluated as degenerative arthritis, based on limitation of motion of affected parts. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, 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 diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Limitation of motion of the knee is addressed by Diagnostic Codes 5260 and 5261. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Diagnostic Code 5260, which evaluates limitation of flexion, provides for a noncompensable rating when flexion is limited to 60 degrees; a 10 percent rating when flexion is limited to 45 degrees; a 20 percent rating when flexion is limited to 30 degrees; and a 30 percent rating when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261, which evaluates limitation of extension, provides for a noncompensable rating when extension is limited to 5 degrees; a 10 percent rating when extension is limited to 10 degrees; a 20 percent rating when extension is limited to 15 degrees; a 30 percent rating when extension is limited to 20 degrees; a 40 percent rating when extension is limited to 30 degrees; and a 50 percent rating when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. 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) 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. Here, the question for the Board, is whether the Veteran’s disability picture more nearly approximates the criteria for a higher disability rating. Upon review of the claims file, the Board concludes that the Veteran’s disability picture, to include the Veteran’s statements, medical treatment records and VA examinations (DBQs) do not more nearly approximate the degree required for a higher rating under Diagnostic Codes 5003, 5260-5024. However, as discussed below, the Board has also considered the other Diagnostic Codes pertaining to the knee and leg. The Board finds that the evidence supports an additional separate disability rating of 10 percent under DC 5257 regarding instability of both knees. Turning to the evidence of record, a February 2007 x-ray was ordered by the examining private Orthopedist. The x-ray of record assessed retropatellar sclerosis caused by irritation with both knees in two planes. The examiner diagnosed bilateral patellar chondropathy with femoropatellar dysplasia. The Veteran underwent a private February 2007 bilateral knee examination with complaint of knee pain and swelling. The examination was conducted in Germany and the report translated from German to English is of record. Upon examination, the private examiner noted patellar pain on pressure, medial instability, no bilateral ligament instability and no signs of meniscus problems. Range of motion results were unclear in that the examiner listed 3 numbers for flexion/extension. However, the testing appeared to show significant range of motion. Moreover, a number of VA examinations were conducted subsequently which bolstered this conclusion. In addition, bilateral knee range of motion testing was performed during VA examinations in July 2012, December 2015 and October 2020 and was at worst flexion was limited to 110 degrees with extension to 0 degrees. All examination reports noted that she did not have muscle atrophy, ankylosis, recurrent subluxation, or joint instability. During the examinations, the Veteran was asked about pain, flare-ups, or functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The VA examination reports do not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record, to include the Veteran’s lay statements. While the Veteran has essentially stated that she has reduced motion in her knee, she has not described a range of motion less than that found on examination. In this regard, during the July 2012 examination she described her flare-ups as consisting of difficulty walking and increased pain. Likewise, at the December 2015 examination she described her flare-ups as experiencing popping, locking and stiffness with prolonged standing and sitting in one position, and really strong pain. At the October 2020 examination she stated that during flare-ups she experienced severe pain approximately two or three times a week lasting two to three hours. The Veteran’s statements do not show the requisite limitation of motion necessary for a higher rating. Treatment records do not show greater limitation of motion than the examination findings. As noted above, the Board is granting a separate rating for bilateral instability in this decision. The July 2012 examiner noted that the Veteran had additional limitation of range of motion of the knee following repetitive-use and functional impairment. The contributing factors include bilateral less movement than normal, weakened movement, incoordination, pain on movement, disturbance of locomotion and interference with sitting, standing and weight bearing. The December 2015 examiner noted pain on examination that does not result in or cause functional loss. The October 2020 examiner noted that the Veteran had additional limitation of range of motion of the knees following repetitive-use and functional impairment. The Veteran described her functional loss as decreased endurance to standing, walking and sitting with knees bent to 90 degrees. However, the Veteran is able to perform repetitive use testing with at least three repetitions and no additional functional loss was noted. The examiner opined that pain was the contributing factors that caused the Veteran’s functional loss with repeated use over a period of time. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for either knee under DC 5260-5024. The Board acknowledges the Veteran’s lay reports of symptoms and noted functional loss as noted above, the degree of additional limitation reflected by the examinations, to include the recent October 2020 Veteran’s statements that during flare-ups she experienced severe pain approximately two or three times a week lasting two to three hours would not result in limitation of motion more nearly approximating flexion limited to 30 degrees, or extension limited to 10 degrees. The Board is sympathetic to the Veteran’s assertions regarding limitation of motion of her bilateral knee disability and does not doubt that the Veteran’s bilateral knee disability causes pain and restricts her from certain activities. However, the Veteran is currently assigned a rating to account for the pain, as the Veteran has not demonstrated limitation of motion in excess of 10 percent at any time during the course of the appeal. The Veteran’s VA examinations and treatment notes show that at worst her bilateral knee flexion was limited to 110 degrees, which is noncompensable under Diagnostic Code 5260. Her bilateral knee extension at worst was limited to 0 degrees, which is noncompensable under Diagnostic Code 5261. During the 2015 and 2020 examination, the examiner noted pain on examination. The Veteran and buddy statements reported the Veteran experiencing chronic knee pain. In addition, the Veteran has stated that she takes medication for knee pain, excluding pregnancy. She stated that the pain was worse with walking and prolonged standing. See January 2021 representatives Appellate Brief. The Board does not dispute that the Veteran’s knees are painful, but notes that the currently assigned 10 percent ratings are both specifically assigned in acknowledgment of pain. To assign a higher rating, it must be shown that factors such as pain functionally limit range of motion. See 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5024, 5260, 5261; DeLuca v. Brown, 8 Vet. App. 202 (1995). A rating of 20 percent is not warranted because flexion is not shown to be functionally limited to 30 degrees or extension is not functionally limited to 10 degrees. See 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261. 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). Diagnostic Code 5256 evaluates ankylosis of the knee. The record contains no evidence of bilateral knee ankylosis. As such, this Diagnostic Code is not applicable. Diagnostic Code 5262 evaluates impairment of the tibia and fibula. The record contains no evidence of an impairment of the tibia and fibula. As such, this Diagnostic Code is not applicable. Diagnostic Code 5263 evaluates genu recurvatum. The record contains no evidence of genu recurvatum. As such, this Diagnostic Code is not applicable. Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. While the 2012 Disability Benefits Questionnaire of record reflects that the Veteran has a meniscus condition, no remarks or supporting rationale was included in the examination report and the 2015 and recent 2020 DBQs both found no meniscus condition. Moreover, the supporting evidence does not reflect, and the Veteran does not allege that she has any meniscal disability. As such, the Board finds the 2015 and 2020 DBQs more probative than the 2012 DBQ, thus, diagnostic codes 5258, 5259 are not applicable. While the Board finds that there is either no evidence or insufficient evidence of ankylosis, current meniscus problems, tibia/fibula impairment, or genu recurvatum to suggest an increased rating under the Diagnostic Codes discussed above, the evidence of record supports a separate additional disability rating based on impairment of recurrent subluxation or instability and patellar instability. Bilateral Knee Instability The Board notes that a revised 38 C.F.R. § 4.71a-Schedule of Ratings – Musculoskeletal System for the DC 5257 criteria is effective from February 7, 2021. As such, effective from February 7, 2021, the revised DC 5257 knee, other impairment of recurrent subluxation or instability and patellar instability provides (in pertinent part) for a 10 percent disability rating for patellar instability, with 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. A 20 percent rating criteria is met when the diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair, requires a prescription by a medical provider for one of the following: A brace, cane, or walker. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Prior to February 7, 2021, 38 C.F.R. § 4.71a-Schedule of Ratings – Musculoskeletal System under the DC 5257 provides for ratings based on recurrent subluxation or lateral instability from mild/slight to moderate to severe and respectively assigned a rating at either 10, 20, or 30 percent. The new revised 38 C.F.R. § 4.71a DC 5257 criteria effective from February 7, 2021, essentially, replaces these subjective terms (mild/slight, moderate, severe) with detailed descriptions of levels of impairment resulting from recurrent subluxation or instability or from patellar instability. The Board may apply the old DC 5257 rating criteria to the Veteran’s bilateral knee conditions for rating periods prior to February 7, 2021 but may apply whichever set of criteria is more favorable to periods after February 7, 2021, as this claim was pending prior to this date. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Veteran’s bilateral knee disability is diagnosed as chondropathy with femoropatellar dysplasia (a diagnosed condition involving the patellofemoral complex). There is no history of surgical repair. Thus, the Veteran meets the criteria for a new separate rating of 10 percent effective from February 7, 2021 under DC 5257 patellar instability. Turning first to the criteria in effect at the time the Veteran’s claim was filed, the Board finds that the record including the Veteran’s statements support a finding of at least “slight” recurrent lateral instability. The Veteran submitted many credible statements during the period on appeal asserting that her knees were, popping and cracking. She ultimately reported to the 2020 VA examiner a history of falls due to giving away of her knees while walking. She also describes locking of the knee when the patella grinds sometimes when standing from sitting. She says she does not tolerate the weight of her thigh over her knee when attempting to cross her legs while sitting. In addition, the Veteran submitted several credible statements from buddies in 2012, observing her limping and walking slow. Of note, the Veteran’s VA examinations show a history of assistive knee devices, to include knee braces and elastic bandages for support. As reflected in a 2007 private orthopedic examination report, the examiner noted that the Veteran experienced medial instability. The 2012 VA DBQ reported that the Veteran occasionally uses a soft knee brace as an assistive device. While, the examiners did not report clinical findings of bilateral knee instability, the Board finds that the record including the Veteran’s statements support a finding of at least “slight” recurrent lateral instability under DC 5257 criteria. The Board finds that the evidence of record shows the overall recurrent subluxation or lateral instability in the Veteran bilateral knees most closely approximates a severity level that is no more than slight, that is, small in amount. As noted, the Veteran has on occasion used assistive devices such as braces, but at the most recent examination she reported using an elastic bandage on occasion during flare-ups. Clinical testing has not found significant instability that would support a rating in excess of 10 percent based on the regulations in effect at the time the Veteran filed her claim. For example, at the 2015 and 2020 VA examinations, the examiners found no instability on clinical testing. As such, a 10 percent rating, but not higher is granted for instability under the regulations in effect at the time the Veteran’s claim was received. The Board must now consider whether the revised regulations allow for the assignment of a rating in excess of 10 percent. As noted, new regulations regarding knee instability were enacted and became effective as of February 7, 2021. These modify Diagnostic Code 5257 as follows: 5257 Knee, other impairment of: Recurrent subluxation or instability: A 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation with sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. A 20 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation with unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation A 10 percent rating is assigned for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation Patellar instability: A 30 percent rating is assigned for 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 A 20 percent rating is assigned for 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 A 10 percent rating is assigned for 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 Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): 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). Here, the Veteran has been diagnosed with chondropathy with femoropatellar dysplasia. Accepting that this brings the condition within the regulations for patellar instability, a rating in excess of 10 percent would require surgical repair, which has not been conducted in this case. Moreover, under the revised regulations for recurrent subluxation or instability, a rating in excess of 10 percent under new regulations require both persistent instability, which has not been shown, and the prescription of a brace which is generally not shown throughout the appeal. As such, a 10 percent rating for each knee, but no higher, for instability is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Franklin, 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.