Citation Nr: 21012696 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 14-11 536 DATE: March 5, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for right knee patellofemoral syndrome (hereinafter right knee disability) is denied. Entitlement to an evaluation in excess of 10 percent for left knee patellofemoral syndrome (hereinafter left knee disability) is denied. FINDING OF FACT The Veteran’s knee disabilities have not functionally limited the flexion in either knee to 45 degrees or less or extension in either knee to 10 degrees or more; ankylosis, recurrent subluxation, instability, impairment of the tibia or fibula, and genu recurvatum have not been shown; and the Veteran’s meniscus problems have not been found to be related to his service-connected bilateral knee disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right knee patellofemoral syndrome have not been met. 38 U.S.C. §§ 1101, 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Codes (DC) 5003, 5256-5263. 2. The criteria for a disability rating in excess of 10 percent for left knee patellofemoral syndrome have not been met. 38 U.S.C. §§ 1101, 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.20, 4.71a, DCs 5003, 5256-5263. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from November 1983 to May 1986. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2012 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a June 2017 video conference hearing. A transcript of that proceeding is associated with the claims file. These matters were previously before the Board in April 2018, at which time they were remanded for additional evidentiary development. Having fully reviewed the electronic claims file, the Board finds that the RO substantially complied with the Board’s prior remand directives to the extent possible. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the remand directives included obtaining private medical records, in November 2018 and September 2019, the Veteran was sent requests to fill out VA Form 21-4142 to authorize the RO to request and obtain these private records on his behalf; but he did not respond or return the releases, nor did he submit the records himself. As discussed in Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), “[t]he duty to assist is not always a one-way street” and if the Veteran desires help with his claims, he must cooperate with VA’s efforts to assist him. To the extent the evidence of record is incomplete, that is a direct result of the Veteran’s failure to cooperate. As such, the Board may proceed with its adjudication of the claims. The claims were last adjudicated by the RO in a March 2020 Supplemental Statement of the Case (SSOC). Since that time, new evidence has been received, including updated VA treatment records, which do not indicate any treatment for the Veteran’s knees, and additional medical evidence that is not pertinent to the claims on appeal; rather the VA examination relates to the Veteran’s claim for hearing loss. Accordingly, the Board finds that there is no prejudice in proceeding with consideration of this case without affording the RO an opportunity to issue a SSOC addressing this new evidence. Additionally, a waiver of initial RO consideration is not required as these records are not relevant to the instant claims. See 38 C.F.R. § 20.1304(c). The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens, 814 F.3d at 1361, that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1381. Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to active 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 and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the reports into a consistent picture so that the current rating may accurately reflect the elements of disability. See 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. See 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. see 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. See 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Evidence obtained during, or leading up to, the appeal period may indicate that the degree of disability increased or decreased during the pendency of the appeal. In such circumstances, VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the rating claim has been pending, and “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107(b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board’s analysis will focus on what the evidence shows, or fails to show, as to each claim. Here, the Veteran is seeking a higher disability rating for his service-connected left knee disability and right knee disability, which are both currently and separately evaluated at 10 percent disabling under Diagnostic Code (DC) 5260, for limitation of motion that is accompanied by pain. However, the evidence of record does not warrant a higher rating under any of the relevant codes. As part of his claim for a higher rating, the Veteran was provided a VA examination in December 2014 to assess the severity of his bilateral knee disability. The Veteran complained that he has knee pain with prolonged walking but denied the use of assistive devices. The examiner noted the Veteran’s range of motion (ROM) in both knees revealed flexion limited to 110 degrees with guarding, but extension was normal, and there was no evidence of instability, subluxation, ankylosis, crepitus, or effusion. There was also no evidence of localized tenderness or pain on palpation of the joint or the soft tissues, nor was there evidence of right or left knee pain with weight bearing. There was no reduction in muscle strength or muscle atrophy. The Veteran had no functional loss or limited ROM after repetitive use testing, and he denied having flareups. The examination is adequate, as it included a physical examination of the Veteran, and the examiner listened to the Veteran’s history and current subjective complaints, combined with a review of the available records. Thereafter, another VA examination was obtained in September 2017. The Veteran complained that his left knee is worse than his right knee, and that his left knee buckles under him when he walks or walks down stairs, and that they “pop.” The examiner noted the Veteran’s ROM in both knees was shown as normal, and there was no evidence of instability, subluxation, ankylosis, crepitus, or effusion (though the examiner noted the July 2017 private medical record noted he had some effusion). While there was evidence of localized tenderness or pain on palpation of the joint or the soft tissues, there was no evidence of right knee pain or left knee pain with weight bearing. There was no reduction in muscle strength or muscle atrophy. The Veteran had no functional loss or limited ROM after repetitive use testing, and he denied having flareups. It was noted the Veteran had a meniscal condition (see below). The examination is adequate, as it included a physical examination of the Veteran, and the examiner listened to the Veteran’s history and current subjective complaints, combined with a review of the available records. As part of the 2018 remand directives, an addendum opinion was requested as to whether the Veteran’s service-connected bilateral patellofemoral syndrome (PFS) disability caused the subsequent bilateral meniscal tears that were diagnosed in July 2017. In October 2019, a VA examiner opined it was less likely as not that the Veteran’s right and left knee meniscal tears were related to his service-connected right and left knee PFS. The rationale included citation to medical literature, which the examiner stated supported that the Veteran’s bilateral PFS and his right knee and the right knee meniscal tear diagnosed in July 2017 are “two different conditions with different pathophysiologies and management. Patellofemoral syndrome affects the patellofemoral joint. The knee meniscus is located anatomically within the capsule of the knee joint, away from the patellofemoral joint.” In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this case, the examiner was aware of the Veteran’s medical history, provided a fully articulated opinion, and furnished a reasoned analysis for his conclusions, with citation to two medical articles. The Board therefore attaches significant probative value to this opinion. There is no other competent medical opinion to the contrary. At the June 2017 Board hearing, the Veteran reported that his left knee constantly gives out and buckles and that he uses a cane. However, as discussed above, the Veteran was provided joint stability testing as part of the 2017 examination, which revealed no recurrent subluxation, effusion, or instability. Further, the Veteran himself denied use of assistive devices during his examinations and in his medical records, and also stated that he used a cane for his back. Therefore, while the Veteran is competent to report his symptoms, the Board finds the examinations and medical records are more credible and consistent that he does not have instability. As for his VA medical records, the Veteran reported chronic knee pain, but he did not report a history of falling or instability. Again, while he occasionally reported “buckling” (see July 2014 VA record), he was thereafter tested for instability which was shown to be negative. Further, in a May 2014 VA record, he stated that his doctor could not explain his knee giving out, but he also stated he had no complaints of swelling or locking. However, after testing, it was noted there was no joint line tenderness or effusion and laxity, and that the Veteran had full ROM. In February 2017, he reported a history of falling, but in January 2019, he denied having a history of falling, and he denied using assistive devices. Private medical records that were available revealed that the Veteran complained of knee pain and that the pain was aggravated by standing and walking. A March 2014 knee examination found bilateral effusion and swelling, but all findings were mild; and his extension was only limited to 5 degrees and flexion limited to no less than 100 degrees with active painful ROM. It also showed that all instability findings were negative, including posterior drawer, anterior drawer testing, despite the subjective reports of buckling. In July 2015, an examination revealed that he had active and pain-free and normal ROM. As noted above, the Veteran reported he had other private medical records, but he did not respond to the ROs attempts to retrieve those records. Wood, 1 Vet. App. 190, 193. Finally, the Board considered the Veteran’s Social Security Administration (SSA) records; however, they are not supportive of a higher evaluation for the Veteran’s knees, as the SSA disability determination was made in March 2011, which is prior to the request for a higher evaluation. Further, the determination did not find the Veteran’s knees to be part of the diagnoses for the disability decision. In sum, the weight of the evidence indicates that the Veteran is not entitled to disability ratings in excess of 10 percent for either knee disability. As noted above, the Veteran’s knees are each rated at 10 percent based on painful ROM. However, although the Veteran originally was given a 10 percent evaluation based on limited ROM, the most recent examinations revealed that he has not actually shown that his ROM is functionally limited to a degree that would warrant a compensable rating in either knee. See 38 C.F.R. § 4.71a, DC 5260, 5261. VA examinations and medical records have consistently shown full or minimally limited ROM, so a higher rating under DC 5260 is not warranted, nor is a compensable evaluation warranted under DC 5261. Specifically, throughout the period on appeal, the Veteran’s flexion was consistently determined to be normal or, at worst, limited to 100 degrees without pain on weight bearing; and his extension was consistently determined to be normal or, at worst, limited to 5 degrees. Therefore, the evidence does not show that the Veteran is entitled to an increased disability rating due to limited flexion and extension. Since he does not have such limitations, the current 10 percent evaluation is warranted based on painful motion of the knees with X-ray evidence of arthritis per DC 5010/5003. This rating would also be warranted under 38 C.F.R. § 4.59, as consideration of functional loss due to painful motion may be rated at least the minimum compensable rating for a particular joint. Finally, the Board finds that the symptom of pain is reasonably contemplated and has been addressed in the current 10 percent rating. Since he does not otherwise meet the criteria for a rating based on limited motion, this rating compensates him for the limitations and functional loss he does have. The Board also considered that the Veteran’s knees were functionally limited by factors including standing and prolonged walking. Nevertheless, the Veteran was consistently able to perform repetitive ROM testing without any loss of ROM, and additional functional losses were not shown to be so limiting as to warrant a separate compensable rating for either limitation of flexion or limitation of extension. Simply put, at the 2017 VA examination, the examiner noted that the Veteran was not limited by factors such as pain, and weakness, and he did not demonstrate a loss of ROM. Moreover, repetitive motion did not further limit the ROM, and ROM was demonstrated to full extension and to full flexion. Further, although the Veteran was diagnosed with a bilateral meniscal condition, unfortunately, the 2019 examiner explained why the Veteran’s meniscus problem was not the result of his service-connected knee disabilities, a separate evaluation under DC 5258 or 5259 is not warranted. The Board acknowledges that the Veteran would be competent to report knee instability as this is within the realm of his personal perception. Layno v. Brown, 6 Vet. App. 465, 469; see also English v. Wilkie, 30 Vet. App. 347 (2018) (suggesting that lay evidence of knee instability is generally competent). The Board is cognizant that objective medical evidence is not categorically more probative than lay evidence when it comes to determining the degree of knee instability the Veteran has experienced during the appellate period. English, supra. Here, however, the Veteran has not consistently reported instability or giving way as a symptom, and none of the medical evidence shows any instability or subluxation of the knee; rather, all stability testing during all of his compensation examinations, VA medical consult testing, and private medical testing consistently was found to be normal throughout the course of the appeal. [The Board notes VA’s rating criteria for certain musculoskeletal conditions were revised effective February 7, 2021, but the rating for painful, limited motion remains applicable, and as the Veteran does not have instability, that revised code is inapplicable.] Finally, all other possibly applicable diagnostic codes have been considered in compliance with Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), but the Veteran could not receive higher and/or additional evaluations for either knee based on the evidence. In sum, the preponderance of the evidence simply fails to demonstrate an adequate basis for an increased disability rating for either knee. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; but as the preponderance of the evidence is against the claim, entitlement to a disability rating in excess of 10 percent for the right knee disability and in excess of 10 percent for the left knee disability is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.