Citation Nr: 21014167 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-01 310 DATE: March 11, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for right knee patellofemoral pain syndrome is denied. Entitlement to an initial disability rating in excess of 10 percent for left knee patellofemoral pain syndrome is denied. FINDINGS OF FACT 1. The Veteran’s right knee patellofemoral pain syndrome is manifested by pain, flexion limited to no more than 110 degrees, extension to zero degrees, and no instability or subluxation. 2. The Veteran’s left knee patellofemoral pain syndrome is manifested by pain, flexion limited to no more than 120 degrees, extension to zero degrees, and no instability or subluxation. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for right knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for an initial disability rating in excess of 10 percent for left knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 2006 to March 2014. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The November 2014 rating decision granted service connection for patellofemoral pain syndrome of the left and right knees and assigned a noncompensable (0 percent) initial disability rating to each knee. In November 2015, the RO issued a Statement of the Case (SOC) that raised the initial disability rating of the right knee to 10 percent for painful movement of the joint but left unchanged the noncompensable rating for the left knee. In June 2020, the RO issued a Supplemental Statement of the Case (SSOC) that raised the initial disability rating of the left knee to 10 percent for painful movement of the joint. The Veteran currently has an initial rating of 10 percent for right knee patellofemoral pain syndrome and 10 percent for left knee patellofemoral pain syndrome, effective March 16, 2014, and seeks a higher initial rating for both. These matters were previously remanded by the Board in April 2019 and August 2020 for further development, and are now returned for adjudication. The August 2020 remand ordered a new VA examination to obtain an assessment on the Veteran’s increased functional loss on repeated use of his knees, or during flare-ups. See Mitchell v. Shinseki, 25 Vet. App. 32; Sharp v. Shulkin, 29 Vet. App. 26 (2017). A new examination complying with this order was conducted in October 2020, and the Board may therefore proceed with a decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Disability ratings generally Disability evaluations are determined by comparing the manifestations of a disability with the criteria set forth in the Diagnostic Codes of the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. § Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate ratings may be assigned to different conditions if they do not constitute the same disability or manifestation thereof. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). When 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 for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. A schedular rating may be increased if there is objective evidence during examination or treatment of functional loss exceeding that fixed by a schedular rating. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); Mitchell v Shinseki, 25 VA 32 (2011); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Rating in excess of 10 percent for right knee patellofemoral pain syndrome Rating in excess of 10 percent for left knee patellofemoral pain syndrome The Veteran’s right and left knee patellofemoral pain syndrome disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260, for limitation of flexion of the leg. Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A maximum 30 percent rating is warranted for flexion limited to 15 degrees or less. 38 C.F.R. § 4.71a, DC 5260. Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. 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 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). Under 38 C.F.R. § 4.59, a Veteran with a painful, unstable, or malaligned joint, due to healed injury, is entitled to at least the minimum compensable rating for the joint. The Veteran was granted his current 10 percent rating for each knee according to 38 C.F.R. § 4.59, due to painful motion in his knees. After reviewing the evidence of record, the Board finds that the preponderance of the evidence is against ratings in excess of 10 percent for the right and left knee patellofemoral pain syndrome disabilities. Repeated examination, most recently in October 2020, has shown that the Veteran’s right and left knee flexion has not been limited to the extent necessary to meet the criteria for a rating in excess of 10 percent. The October 2020 VA examination report indicates diagnoses of right and left patellofemoral pain syndrome. The Veteran reported flare-ups of the knee 1 to 2 times per week, lasting 5 to 10 minutes, and functional loss or impairment (described as pain when performing weight-bearing activities with the knees, and ambulation affected by decreased range of motion). Range of motion testing of the knees revealed results outside of normal range. Flexion of the right knee initially extended from 0 to 120 degrees, while the left knee had a range of 0 to 130 degrees. The report indicated pain on flexion while weight bearing in both knees, and pain on both flexion and extension while weight bearing in the right knee. Later, the examiner specified that the Veteran began experiencing pain at 115 degrees of flexion and 115 degrees of extension in the right knee, and at 130 degrees of flexion in the left knee. No pain was noted for non-weight-bearing motion of either knee. At the October 2020 examination, the Veteran’s right and left knees were examined immediately after repetitive use over time. After repetitive use, the Veteran’s right knee flexion ranged from 0 to 110 degrees, while his left knee flexion ranged from 0 to 120 degrees. The examiner likewise described the Veteran’s functional loss from pain during flare-ups as limiting his range of motion from 0 to 110 degrees flexion in the right knee, and 0 to 120 degrees flexion in the left knee. The report noted crepitus in both knees, but no localized tenderness or pain on palpitation of the joint, no ankylosis, and no reduction in muscle strength of either knee. There was no sign of instability, abnormal movement, effusion, weakness, guarding of movement, or subluxation in either knee. None of the Veteran’s previous VA examinations, nor his medical records, show a greater limitation of his range of motion than the October 2020 examination does. The December 2013 VA examiner noted pain on palpitation of the Veteran’s knees. The January 2020 examiner gave a more severe description of the Veteran’s flare-ups, stating that flare-ups happen 2-3 times per week as a result of prolonged squatting or using stairs, and last “all day,” but did not explain the impact of these flare-ups in terms of range of motion (which is why the Board remanded for a new examination). The Board acknowledges the Veteran’s lay reports of knee symptoms and that VA examiners have noted functional loss due to symptoms which include pain and crepitus. However, even considering the Veteran’s lay reports of pain and noted functional loss, the degree of additional limitation, including during flare-ups, is not shown to result in limitation of motion more nearly approximating flexion limited to 30 degrees. 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 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). A higher rating would not be warranted under Diagnostic Code 5256, as the clinical and lay evidence reflects that no ankylosis is present. The clinical evidence consistently shows that the Veteran retains motion in both knees. A higher or separate rating would not be warranted for recurrent subluxation or lateral instability under Diagnostic Code 5257. While the Veteran said in his July 2015 Notice of Disagreement that his “knee will sometimes give out,” repeated clinical examination has found that there is no instability or subluxation which would warrant a higher or separate compensable rating. A December 2017 VA treatment record states that the Veteran’s knee “was ‘popping out’ in the military,” but that this “has abated now.” The Veteran’s service treatment records in October 2013 state that there was no locking, catching, buckling, or giving out of the Veteran’s knees. VA examinations in October 2020, January 2020, and December 2013 all included joint stability tests and found no evidence of instability in the left or right knees. The Board therefore finds that the preponderance of the evidence is against a finding of knee instability during the period on appeal. (As an aside, the Board notes that Diagnostic Code 5257 was revised effective February 7, 2021. However, as the claims file contains no evidence submitted after that date, the change does not apply to the present case.) The Veteran has not been shown to exhibit meniscal pathology to warrant ratings under Diagnostic Code 5258 or 5259. Finally, repeated examination has shown that the Veteran’s right and left knees do not exhibit limitation of extension to warrant a higher or separate rating under Diagnostic Code 5261, nor does he exhibit impairment of the tibia and fibula or genu recurvatum to warrant a rating under Diagnostic Code 5262 or 5263. Therefore, the Board denies the Veteran’s claims for ratings in excess of 10 percent for right and left knee patellofemoral pain syndrome. As the preponderance of the evidence is against the Veteran’s claims, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sundquist, Shermila 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.