Citation Nr: 21012563 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-33 117 DATE: March 4, 2021 ORDER A rating greater than 10 percent for right knee disability, including chondromalacia is denied. A rating greater than 10 percent for left knee disability, including chondromalacia is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability is manifest by painful motion. There is no ankylosis, recurrent subluxation or lateral instability, dislocated cartilage, removal of symptomatic semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. 2. The Veteran’s left knee disability is manifest by painful motion. There is no ankylosis, recurrent subluxation or lateral instability, dislocated cartilage, removal of symptomatic semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee disability, including chondromalacia, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5256-63. 2. The criteria for a rating in excess of 10 percent for left knee disability, including chondromalacia, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5256-63. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1989 to January 1993. These issues were previously before the Board. In December 2017, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to undertake any additional action deemed necessary to properly adjudicate the claims, to include considering the results of the June 2019 VA examination that was not considered at the time it issued the May 2017 Statement of the Case (SOC). Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in August 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). For VA compensation purposes, normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. Ratings for limitation of flexion of the knee are assigned as follows: flexion limited to 60 degrees is 0 percent; flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Ratings for limitation of extension of the knee are assigned as follows: extension limited to 5 degrees is 0 percent; extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. Id., Diagnostic Code 5261. VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-2004 (Sept. 17, 2004). Because ratings may be separately assigned for limitation of flexion and limitation of extension, the Board will consider both Diagnostic Codes. Diagnostic Code 5257 pertains to other impairment of the knee involving recurrent subluxation or lateral instability and provides a 10 percent rating for slight impairment, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257. VA General Counsel has held that separate ratings may be assigned for arthritis and instability under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97 (July 1, 1997). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Here, the only potentially applicable changes concern ratings pursuant to Diagnostic Code 5257 for lateral instability or recurrent subluxation. Because there is no evidence of recurrent subluxation or lateral instability, the changes do not apply to this Veteran’s appeal. Factual Background The Veteran is currently in receipt of a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261 for his left and right knees, respectively, effective July 21, 2003. On July 21, 2003, the AOJ received the Veteran’s claims of service connection for his bilateral knees. In August 2003, the Veteran reported that his knees were painful and that he was taking medication for the pain. The Veteran also stated that his knees made popping noises prior to service but were not painful. No other symptoms were reported. Imaging studies from August 2003 showed that the Veteran complained of bilateral knee pain but that the results were “negative.” In an October 2004 NOD, the Veteran stated that he had knee pain, “cramps,” and locking in his knees. At the April 2005 hearing, the Veteran testified that he started having pain after an injury to his left knee. The Veteran also reported that his knees lock and that the locking improved after walking around a bit. In a September 2005 VA Form 9, the Veteran reported symptoms of pain and stiffness in his knees. Another solider and his friend submitted statements in April 2008 reporting that the Veteran had bilateral knee pain during and since service. VA Medical Center treatment records from July 2003 to June 2008 show that the Veteran consistently complained of bilateral knee pain but did not report other symptoms. At a July 2008 hearing, the Veteran testified that he had symptoms of pain and crackling noise from his knees. The Veteran testified that the knee is “like a blob” when it becomes aggravated, but denied swelling, giving out, or falling. There were times, however, when he feared that the knees may give out when he gets up too quickly. Once or twice every month, the Veteran testified that his knees would become so painful that he had to call in sick. On November 20, 2009, the Veteran underwent a VA examination for his knees. During the examination, the Veteran reported symptoms of bilateral knee pain, stiffness, and weakness when compared to 4-5 years earlier. He also reported instability when he first got out of bed in the morning. The examiner found that there was tenderness to palpation around the patellar tendon. There was no evidence of inflammatory arthritis on examination, and the Veteran did not have any functional limitation on standing or walking. Ranges of motion on the left and right knees were from 0 to 110 degrees and there was no pain in extension. On repetitive motion, the Veteran’s right knee had decreased range of motion from 0 to 105 degrees and reported pain with -10 degrees of extension. Instability testing was negative and there was no evidence of patellar or knee subluxation bilaterally. The Veteran was diagnosed as having left knee strain and right knee patellar tendinitis. There was no need for an assistive device. In December 2009, the Veteran submitted a statement reporting pain in his knees. No other symptoms were reported. On June 3, 2011, the Veteran was afforded another VA examination for his knees. The Veteran initially reported that his knees gave way but then described the problem as not being able to move his knees momentarily when he stands for a few minutes. The examiner opined that the symptom described by the Veteran was locking, and the Veteran reported that locking episodes happened at least twice a day. The Veteran denied falling from knees giving way, and there was no instability, weakness, incoordination, or decreased speed of joint motion. Range of motion testing showed no objective evidence of pain on either extension or flexion on both knees. Flexion was measured at 0 to 140 degrees bilaterally and extension at 0 to 0 degrees bilaterally. Passive range of motion and repetitive range of motion were the same. The Veteran was diagnosed as having bilateral knee strain. In a January 2015 hearing, the Veteran testified that pain was the only symptom he had on his knees during service. On symptoms he experienced currently in addition to pain, the Veteran testified that it was difficult for him to bend down and stand straight up, and that the knees felt as if they were locking. In May 2015, a private medical practitioner submitted a statement on the Veteran’s knees. The practitioner stated that there was lateral joint line tenderness, medial joint line tenderness, significant anterior knee crepitation, and patellofemoral catching with pain at terminal extension in the left knee. The practitioner also observed equivocal positive McMurray’s test, a positive patellar grind test, and that the Veteran was unable to duck walk. Right knee revealed tenderness over the right patella facet and a positive patellar grind test. The practitioner diagnosed the Veteran as having bilateral knee chondromalacia patellae with possible left knee meniscal tear. Private treatment records submitted in May 2015 show that the Veteran reported and received treatment for bilateral knee pain and locking. Range of motion was normal bilaterally with full flexion and extension. In a September 2015 NOD, the Veteran stated that his range of motion of the knees varied from “almost normal movement or range of extension to almost not being able to bend either of them at all.” The Veteran also submitted statements in the same month describing the pain in his knees. In June 2016, the Veteran submitted a copy of his March 2015 private practitioner’s opinion and medical literature pertaining to his knees. In May 2017, the Veteran received a VA examination for his knees. The Veteran reported that he has symptoms of pain and wore an assistive device on his left knee to stabilize the knee and reduce pain at night. The Veteran did not report flare-ups of the knee or functional loss. Range of motion bilaterally was measured at 0 to 140 degrees for flexion and 140 to 0 degrees for extension. Pain on flexion was noted on examination but did not result in or cause functional loss for either knee. There was objective evidence of localized tenderness or pain on palpation on the anterior knee but no objective evidence of crepitus on the right knee. There was objective evidence of crepitus on the left knee. There was no additional functional loss or range of motion after three repetitions on either knee. The Veteran was not examined immediately after repetitive use over time and the examiner stated that it would only be speculative to report additional loss in range of motion after repetitive use over time. Bilaterally, muscle strength was normal, there was no muscle atrophy, and no ankylosis. There was no history of recurrent subluxation, lateral instability, nor recurrent effusion. Joint stability testing resulted in normal scores bilaterally and the Veteran did not have, nor has ever had, recurrent patellar dislocation, “shin splints,” stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The Veteran also did not have, nor has ever had, a meniscus condition. The examiner also stated that the Veteran did not use any assistive devices as a normal mode of locomotion, although occasional locomotion by other methods may be possible. Imaging studies were not performed although past studies were noted. The examiner opined that the Veteran’s knees did not impact his ability to perform any type of occupational task. In a June 2017 VA Form 9, the Veteran reported that the range of motion in his right knee was not always the same and that he experienced stiffness and swelling in addition to pain. In November 2018, the Veteran submitted private treatment records showing the Veteran complaining of bilateral knee pain. The Veteran reported symptoms of crepitus, decreased mobility, joint tenderness, limping, popping, swelling and weakness. McMurray’s testing for meniscal conditions was positive bilaterally, but there was no finding of a dislocated semilunar cartilage. Laxity tests were negative. Range of motion in flexion was 120 degrees for the right knee and 105 degrees for the left knee with 0 degrees on extension bilaterally. The private practitioner noted that the Veteran had “limited strength.” Imaging study of the right knee showed degenerative fraying of the undersurface of the posterior horn of the medial meniscus with moderate osteoarthritis in the medial compartment of the knee. Imaging study of the left knee showed a complex tear involving the posterior horn of the medial meniscus and moderate osteoarthritis in the medial compartment of the left knee. In June 2019, the Veteran underwent another VA examination for his knees. The Veteran reported that the knees did not swell but locked and that they felt unstable at times, with a brace for the left knee providing no significant relief of symptoms. The examiner noted that the Veteran had abnormal range of motion both knees with flexion from 0 to 100 degrees and extension from 100 degrees to 0. Pain was observed on both flexion and extension but there was no evidence of pain with weight bearing. There was objective evidence of diffuse tenderness to palpation but no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss or range of motion in both knees. Repeated use over time was not tested and the examiner opined that pain, weakness, fatigability or incoordination did not significantly limit functional ability. The examiner stated that there was “less movement than normal due to ankylosis, adhesions, interference with standing, etc.,” bilaterally. Muscle strength testing showed normal strength with no muscle atrophy. There was no ankylosis, no history of recurrent subluxation, no history of lateral instability, and no history of recurrent effusions. Joint stability testing showed no joint instability in either knee. The Veteran also did not have, or has ever had, recurrent patellar dislocation, “shin splints,” stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The examiner noted that the Veteran had a meniscal tear in the left knees. In his remarks, the examiner opined that the Veteran’s bilateral degenerative joint disease and left knee meniscal tear were not related to service nor service-connected chondromalacia patella. The examiner, however, did not provide a rationale for his opinion. In September 2020, the Veteran submitted a statement stating that he is still in constant pain when he walks. 1. A rating greater than 10 percent for right knee disability, including chondromalacia 2. A rating greater than 10 percent for left knee disability, including chondromalacia The Veteran contends that his bilateral knee disabilities warrant ratings greater than 10 percent as he is in constant and severe pain. Applying the criteria set forth above to the facts in this case, the preponderance of the evidence is against the assignment of a rating greater than 10 percent for right and left knee disability including chondromalacia. The Veteran’s right and left knee are rated as 10 percent disabling. In order to warrant a rating in excess of 10 percent, the disability would have to be manifested by flexion limited to 30 degrees. As discussed above, none of the examinations of record, including private medical evidence, show the Veteran’s flexion being limited to 30 degrees in either knee. Furthermore, none of the VA examinations, private medical examinations, nor the medical treatment records show that there is any additional loss of motion of either knee due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 10 percent. The Veteran also demonstrated full extension (to 0 degrees) at all knee examinations except for a single private examination in November 2009 showing a -10 degrees for the right knee. The Board, however, assigns greater probative weight to all the other examinations of record measuring the Veteran’s range of motion in extension to be normal, especially the most contemporaneous examination performed in June 2019. Moreover, a separate rating for painful extension is not warranted because the assignment of two separate ratings based upon painful motion would constitute pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition). In this case, the Veteran’s noncompensable limitation of flexion with pain on motion is already compensated and rated 10 percent disabling for each knee under the criteria for rating degenerative arthritis. Therefore, a separate compensable rating for right or left knee limitation of extension is not warranted. Joint stability tests showed that there was no instability or subluxation. Thus, based on the objective findings of the medical examinations, a separate rating for instability is not warranted. There is no medical evidence of record showing dislocated semilunar cartilage, removal of semilunar cartilage, impairment of the tibia and fibular, or genu recurvatum. Although the Veteran reported “locking,” none of the medical examinations showed a dislocated semilunar cartilage nor effusion into the joints. Therefore, a separate rating under Diagnostic Codes 5258, 5259, 5262 or 5263 is not warranted. Finally, Diagnostic Code 5262 allows for a higher rating for ankylosis. No such increased rating is warranted in so far as ankylosis has not been shown in the most recent VA examination. Although the June 2019 examiner discussed ankylosis as a possible cause of the Veteran’s reduced range of motion, no specific finding of ankylosis was made. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claims for ratings in excess of 10 degrees for the Veteran’s right knee disability must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.