Citation Nr: 21012996 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-02 997 DATE: March 8, 2021 ORDER A higher 20 percent rating, though no greater, is granted for right knee patellofemoral syndrome and instability. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. FINDING OF FACT The Veteran’s right knee disability is manifested by moderate pain, weakness, and occasional giving way of this knee, so instability, but he does not have arthritis in this knee or a compensable level of limitation of flexion or extension. CONCLUSION OF LAW The criteria are met for entitlement to a higher 20 percent rating, though no greater, for the right knee disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5257, 5260, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2005 to March 2009. This appeal to the Board of Veterans’ Appeals (Board) is from July 2014 and February 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously before the Board in September 2018 and June 2020 and both times remanded for further development – including to have the Veteran reexamined to reassess the severity of his right knee disability and to determine the etiology of his shoulder disabilities. Concerning his right knee disability, those remand instructions since have been completed, as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Thus, the Board is deciding – indeed granting at least to some extent, his claim for a higher rating for his right knee disability. Unfortunately, however, there has not been compliance, even what could be considered substantial compliance, with the prior remand directives concerning the other claims for service connection for left and right shoulder disabilities, so the Board again is remanding these other claims back to the Agency of Original Jurisdiction (AOJ). Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome The Veteran contends that he is entitled to a higher rating for his right knee disability because it is worse than contemplated by his existing 10 percent rating.   The Veteran’s right knee patellofemoral syndrome is currently rated exclusively under 38 C.F.R. § 4.71a, DC 5260, so based solely on the extent it causes limitation of flexion. His right knee disability formerly was rated under DC 5257, for “other” knee impairment, including owing to recurrent subluxation or lateral instability. The DCs pertaining to the knee and leg were updated effective February 7, 2021, including new rating criteria under DC 5257. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5257). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the former criteria prior to February 7, 2021, and under both the former and new criteria from February 7, 2021 onward. The criteria that are more favorable to him will be applied. Prior to the regulatory change, under DC 5257, a 10 percent rating is warranted for “slight” recurrent subluxation or lateral instability. A 20 percent rating is warranted for “moderate” recurrent subluxation or lateral instability. And a 30 percent rating is warranted for “severe” recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Severe” means very painful or harmful or of a great degree.   Objective medical evidence is not required to establish lateral knee instability under DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this DC. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). After considering the relevant lay and medical evidence, the Board finds that this evidence supports assigning a higher 20 percent rating, but no greater, for the Veteran’s right knee disability. The Board has considered his lay reports of instability in this knee. However, overall, the lay and medical evidence indicates his instability and other symptoms have varied in terms of their intensity and, in any event, do not more nearly approximate a severe disability. The Veteran first underwent a VA knee examination in June 2014. The examiner confirmed a diagnosis of patellofemoral syndrome and noted the Veteran reported flare-ups of right knee pain, but that he “has not had flare-ups of significant pain/decreased mobility in years, says mostly he gets an aching stiffness in [the] knee. . .” The examiner observed pain on palpation of the right knee and mild crepitus during full flexion. The Veteran stated that the functional impact of his right knee disability is that prolonged bending of the knee in the same position causes stiffness and he requires stretch breaks every hour. But, of note, this examination was found to be inadequate by the Board in the September 2018 remand because the examiner had failed to perform all required range-of-motion testing and did not properly discuss pain during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); and Correia v. McDonald, 28 Vet. App. 158 (2016). That said, that finding of inadequacy has no bearing on the Veteran’s statements made during that examination. The Veteran consequently underwent an additional VA knee examination in July 2019. Though this examination also was found inadequate by the Board in the more recent June 2020 remand, the reasons for inadequacy – namely, failing to provide range of motion estimates, including during the Veteran’s reported flare-ups, do not concern his reported symptoms. During this additional examination, he stated that he uses over-the-counter medicine for pain and a heating pad, as needed.   Further, he reported never seeing an orthopedist or physical therapist and had not undergone any other treatment pertaining to his right knee since his separation from service in 2009. He said he has weekly flare-ups of right knee pain that result in severe pain lasting one to two days and causing difficulty walking. But the examiner observed that the Veteran had full muscle strength, no ankylosis, no recurrent subluxation or lateral instability, no meniscal conditions, no history of surgical procedures, and did not report using any assistive devices such as a brace, cane, or walker. During an even more recent September 2020 VA examination, following the Board’s additional remand of this claim, the Veteran stated that his right knee disability causes pain, weakness, and that once every two months his knee will give out. He denied any swelling and any flare-ups of pain. He reported that his right knee causes functional loss for him in that it makes prolonged running, walking, and bending difficult, he has to readjust his position during sleep, and when using stairs he puts all of his weight on his left side at times causing him to walk with a limp. He indicated that he has not had any surgery on his right knee. During the objective physical evaluation portion of the examination, the Veteran’s left knee was noted as normal with full range of motion on all required range of motion tests. His right knee had flexion to 120 degrees and extension to 0 degrees. The examiner observed that the Veteran had dull pain on palpation of the knee joint that was moderate in severity and that there was evidence of crepitus. There was no additional loss in range of motion observed on repetitive use or repeated use over time and, again, the Veteran denied having any flare-ups. The results of that most recent September 2020 examination show the Veteran had slightly reduced muscle strength in his right knee but no atrophy, ankylosis, patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, tibial or fibular impairment, or meniscal condition. Concerning joint stability testing, the examiner recorded that she was unable to conduct the testing on the Veteran’s right knee as he was “too guarded even after multiple attempts.” The Veteran reported occasional use of a knee brace, but the Board observes that the medical evidence of record does not show that he was prescribed a knee brace, rather, he has chosen to wear a knee brace at his own election. Finally, there was no evidence of degenerative or traumatic arthritis in his right knee. He said he had lost around one week of work in the year prior due to his right knee disability. In assessing the severity of this service-connected disability, the Board has duly considered the other DCs 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, VA’s anti-pyramiding regulation, prohibits paying compensation twice for the same symptoms or functional impairment). As already discussed, the Veteran’s right knee disability does not involve ankylosis, any meniscal condition, impairment of his tibia or fibula, or genu recurvatum. Thus, a rating under these other DCs would be inappropriate. 38 C.F.R. § 4.71a, DCs 5256, 5258, 5259, 5262, 5263. Further, he does not have a compensable level of limitation of motion in his right knee, on either flexion or extension, so a higher rating is not warranted on this other basis either. 38 C.F.R. § 4.71a, DCs 5260 and 5261. This also precludes him from receiving separate ratings for limitation of flexion and extension. VAOPGCPREC 9-2004 (September 17, 2004). As well, because he does not have arthritis in this knee according to DC 5003 or alternatively painful motion to extent causing a compensable level of limitation of motion, again, on either flexion or extension, this precludes him from receiving separate ratings for arthritis and consequent limitation of motion apart from any rating, instead, based on instability under DC 5257. See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998). Moreover, applying the new diagnostic criteria, effective after February 7, 2021, will not result in a rating higher than 20 percent for the Veteran’s right knee disability. Under the new criteria of DC 5257, there is now differentiation between recurrent subluxation or lateral instability. The Veteran does not have recurrent subluxation or lateral instability and, thus, a rating under these criteria is not warranted. However, the new criteria of DC 5257 also allow for a rating for patellar instability, which directly contemplates his right knee disability. Under the new criteria of DC 5257, for patellar instability, a 10 percent rating is warranted 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. A 20 percent rating is warranted 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 a brace, cane, or walker. A 30 percent rating is warranted 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. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5257). As already discussed, the Veteran does not have a history of surgical repair and has not been prescribed a knee brace, cane, or walker. The medical evidence of record does not show that he has undergone any right knee surgery and, further, although he reports wearing a knee brace, the medical evidence of record does not contain a prescription for a knee brace by a medical professional. As such, the Veteran does not meet the criteria for a higher 20 percent or greater rating under the new diagnostic criteria and, resultantly, the former diagnostic criteria are more favorable to him. And, when considering all his symptoms, so in combination, they support granting a higher 20 percent rating for his right knee disability under the former criteria because he has what amounts to “moderate” knee impairment according to the former version of DC 5257. This is certainly true when resolving all reasonable doubt concerning this in his favor. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.   REASONS FOR REMAND Entitlement to service connection for a right and left shoulder disabilities is remanded. The June 2020 Board remand found that, although the Veteran had undergone an August 2019 VA examination as directed by the prior September 2018 Board remand, there had not been substantial compliance with the remand directives concerning an adequate rationale. The June 2020 Board remand consequently again remanded the Veteran’s shoulder claims to have him undergo another VA shoulder examination with a different VA examiner. Further, the VA examiner was asked to provide a complete rationale, including consideration of the Veteran’s lay statements attesting that he wore flak jackets with plate inserts for extended periods of time during his service and performed long marches carrying large packs, and that his shoulder pain onset during his service even though he did not seek medical care for his pain. The June 2020 remand also found that the August 2019 VA examination was inadequate because the rationales against service connection were based solely on the lack of treatment or complaints of any shoulder pain during the Veteran’s service. A medical opinion based solely on the absence of documentation in the record – including in the service treatment records (STRs), is inadequate, and a medical opinion also is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). See Dalton v. Peake, 21 Vet. App. 23 (2007). The Veteran had a VA shoulder examination, performed by a new examiner, in September 2020. This examiner, in recording the Veteran’s medical history, noted his lay statements that he had a gradual onset of shoulder pain – especially after wearing flak jackets and heavy rucksacks, and that he did not receive care for any shoulder condition during his service. However, the rationales provided for both the right and left shoulder claims as to why these claimed disabilities are not related to or the result of the Veteran’s service again were based only on the lack of treatment during service for these now claimed disabilities. Further, the rationales did not discuss his lay statements that his shoulder pain began during his service, regardless of whether he sought treatment for it.   Accordingly, these claims again are REMANDED for the following still additional development and consideration: Request an addendum opinion from the September 2020 VA examiner or, if unavailable, from another appropriate clinician further commenting on the etiology of the Veteran’s current left and right shoulder disabilities. If, as previously concluded, any present left and/or right shoulder disability cannot be regarded as having onset during the Veteran’s service or to be otherwise related or attributable to his service, this disassociation cannot be solely predicated on him not having received treatment for these disabilities during his time in service. So, in the rationale, the examiner must directly address the Veteran’s lay statements attesting that his shoulder pain had a gradual onset during his service, especially from wearing flak jackets and rucksacks, and that he had this pain during his service but admittedly did not seek any treatment for it. Thus, if the examiner believes it is significant the Veteran was not treated for these shoulder disabilities during his service, there must be more explanation of why it is reasonable to have this expectation. In other words, while it is acceptable to consider this as one factor for disassociating these now claimed disabilities from his service, this cannot be the only or exclusive reason. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran’s reports are discounted, the examiner must provide a reason for doing so.   Rationale of the opinion therefore is essential, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.