Citation Nr: 21012306 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-03 534 DATE: March 4, 2021 ORDER A disability rating in excess of 10 percent for patellofemoral syndrome with arthritis of the right knee is denied. A disability rating in excess of 10 percent for patellofemoral syndrome with arthritis of the left knee is denied. An initial rating in excess of 10 percent for patellofemoral complex with instability of the right knee is denied. FINDINGS OF FACT 1. For the entire rating period on appeal from October 3, 2012, the patellofemoral syndrome with arthritis of the right knee has been manifested by pain, X-ray evidence of arthritis, and noncompensable limitation of motion. 2. For the entire rating period on appeal from October 3, 2012, the patellofemoral syndrome with arthritis of the left knee has been manifested by pain, X-ray evidence of arthritis, and noncompensable limitation of motion. 3. For the entire initial rating period on appeal from October 3, 2012, the patellofemoral complex with instability of the right knee has been manifested by slight lateral instability. 4. For the initial rating period on appeal from February 7, 2021, the patellofemoral complex with instability of the right knee has been manifested by a diagnosed patellofemoral complex with recurrent instability that does not require a prescription for an assistive device. CONCLUSIONS OF LAW 1. For the entire rating period on appeal from October 3, 2012, the criteria for a disability rating in excess of 10 percent for the patellofemoral syndrome with arthritis of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71. 2. For the entire rating period on appeal from October 3, 2012, the criteria for a disability rating in excess of 10 percent for the patellofemoral syndrome with arthritis of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71. 3. For the entire initial rating period on appeal from October 3, 2012, the criteria for a disability rating in excess of 10 percent for the patellofemoral complex with instability of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020) & 5257 (effective February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from June 1993 to July 1995 during the Gulf War Era. The Veteran is currently in receipt of a 10 percent rating for the patellofemoral syndrome with arthritis of the right knee, a 10 percent rating for the patellofemoral syndrome arthritis of the left knee, and a 10 percent initial rating for the patellofemoral complex with instability of the right knee. The Rating Decision on appeal was issued in August 2013, which granted a separate 10 percent initial rating for right knee patellofemoral complex with instability, and denied ratings in excess of 10 percent for patellofemoral syndrome with arthritis in both knees. These ratings were continued in a Statement of the Case issued in October 2014 and a Supplemental Statement of the Case issued in April 2016. The Board remanded the appeal in April 2020, instructing the Agency of Original Jurisdiction (AOJ) to schedule new examinations of the knees in order to have a more contemporary picture of the disabilities. 1. Increased rating for patellofemoral syndrome with arthritis of the right knee 2. Increased rating for patellofemoral syndrome with arthritis of the left knee As noted above, the Veteran is in receipt of a 10 percent rating both for patellofemoral syndrome with arthritis of the right knee and left knee. The Veteran brought a claim for increase in compensation for both knees in October 2012. The current appeal is from the August 2013 Rating Decision that denied a rating in excess of 10 percent. The Board remanded the appeal in April 2020. The Board determined that, because the Veteran had contended that the right and left knee patellofemoral syndrome with arthritis and the right knee patellofemoral complex with instability had worsened in severity since the last examination, a remand was necessary to help determine the severity of and impairment caused by the disabilities. The Board finds that new examinations are necessary to decide the claims for increased rating. The last VA examination was performed in April 2016. The Veteran contended in a September 2018 hearing in front of the Board that the knee disabilities had worsened. Because the Veteran contended that the disabilities had worsened since the previous examination, new examinations are required to obtain evidence necessary to adjudicate the claimant's request for an increased rating. The Veteran provided private treatment records that include some information about the knee conditions: however, the records are not detailed or thorough enough to decide the claim for increased rating. The records are primarily for treatment of hip pain, not for the knee disabilities. The testing performed does not conform to VA requirements for testing of repetitive use, weight bearing, and pain in range of motion. As such, new VA examinations are necessary to adjudicate the claim. The VA attempted to schedule new examinations for the right and left knee. The Veteran requested the VA cancel the appointments because she did not want to see any of the providers offered by VA. See December 2020 Exam Scheduling Request Clarification Response. When a veteran fails to appear for an examination or reexamination without good cause, 38 C.F.R. § 3.655 applies. Because the Veteran is requesting increased ratings for the right and left knee arthritis, this information is needed to decide the claim for increase, and the Veteran placed unreasonable conditions on the examination that amount to a failure to appear for a VA examination, the provisions of 38 C.F.R. § 3.655(b) apply. As this is a claim for increased rating, the claim must be denied. The Veteran failed to report for the necessary VA examinations and did not provide good cause for failing to report. Accordingly, the claims for increased disability ratings for the arthritis of the right and left knee must be denied as a matter of law. 38 C.F.R. § 3.655(b). 3. Initial rating for patellofemoral complex with instability of the right knee While the same facts above apply to the claim for patellofemoral complex with instability of the right knee, the patellofemoral complex with instability had not been previously rated by VA, so the appeal is for a higher initial rating for the patellofemoral complex with instability, not a claim for increase. The provisions of 38 C.F.R. § 3.655(b) still apply, but this provision provides that, for original claims, the issue shall be rated based on the evidence of record. The Veteran is in receipt of a 10 percent disability rating for slight instability of the right knee. The Board finds that, for the entire rating period on appeal from October 3, 2012, the lay and medical evidence shows that the right knee patellofemoral complex with instability most closely resembles slight lateral instability to warrant not higher than a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). Under the old criteria for DC 5257 in effect when the Veteran filed the claim now on appeal, a 10 percent rating is warranted where there is slight lateral instability of the knee. A 20 percent rating is warranted where there is moderate lateral instability of the knee. A 30 percent rating is warranted where there is severe lateral instability of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). VA treatment records from October 2012 note findings of slight lateral instability in the right knee. The same treatment reports note no buckling; no ligamental laxity; no anterior or posterior instability; and full knee strength. A VA examination performed in March 2016 found no evidence of joint instability in either knee. The VA examiner found no recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or other tibia/fibula impairment, and no meniscal conditions. Private treatment records from August 2020 examined the right knee and found no instability of the right knee. Private treatment records from October 2020 note some instability of the right patella. Under the new criteria for DC 5257 effective from February 7, 2021, a 10 percent rating is warranted for a diagnosed patellofemoral complex with persistent instability without a medical prescription for braces or an assistive device. A 20 percent rating is warranted for a diagnosed patellofemoral complex with persistent instability with a medical prescription for braces or an assistive device. The evidence in this case does not show a medical prescription for assistive devices for the period from February 7, 2021. In a Board hearing in September 2018, the Veteran reported that she had knee braces; however, the evidence does not show that the braces are medically prescribed. Because there is not a medical prescription for assistive devices, and the medical evidence indicates that the right knee patellofemoral complex with instability is not persistent (positive findings of instability in October 2012 and October 2020 with negative findings of instability in March 2016 and August 2020), the disability picture of the right knee patellofemoral complex with instability most closely resembles a 10 percent rating under DC 5257, under both the old and new DC 5257 rating criteria. Accordingly, the Board finds that, for the entire rating period on appeal, the criteria for a higher rating than 10 percent is not met for any period. 38 C.F.R. §§ 4.3, 4.7, 4.71a. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Charles Plambeck 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.