Citation Nr: 21014584 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 12-09 168 DATE: March 15, 2021 ORDER Entitlement to a 30 percent disability rating, and no higher, for patellofemoral pain syndrome of the left knee is granted. Entitlement to a disability rating of 20 percent for limitation of flexion of the left knee prior to January 2, 2020 is granted. Entitlement to a rating in excess of 30 percent since January 2, 2020 is denied. FINDINGS OF FACT 1. In resolving all doubt in her favor, the Veteran’s left knee has manifested in severe lateral instability and slight recurrent subluxation. 2. For the period prior to January 2, 2020, the Veteran’s left knee disability was manifested by limitation of flexion with pain upon motion at 35 degrees. 3. For the period since January 2, 2020, the Veteran’s left knee disability was manifested by limitation of flexion with pain upon motion at 15 degrees, at worst. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 30 percent disability rating, and no higher, for patellofemoral pain syndrome of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003-5257. 2. For the period prior to January 2, 2020, the criteria for entitlement to an initial disability rating of 20 percent for limitation of flexion of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 3. Since January 2, 2020, the criteria for entitlement to an initial disability rating in excess of 30 percent for limitation of flexion of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from January 1996 to December 1999. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2009 and March 2017 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of history, the Veteran appealed the August 2009 rating decision on appeal to the Board and in September 2016, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. During the pendency of that development, the AOJ issued the March 2017 rating decision which granted the Veteran service connection for limitation of flexion of the left knee, rated 10 percent disabling, effective October 13, 2016. Subsequently, the Board remanded the claim again in February 2018 and again in July 2019 for additional evidentiary development. Following the July 2019 remand, the AOJ issued a September 2020 rating decision increasing the Veteran’s disability rating for limitation of flexion of her left knee to 30 percent disabling. As a higher rating is available for her left knee disability and the Veteran is presumed to seek the maximum available benefit for a disability, the claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In addition, the United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. While the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant DCs for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, and lateral instability and recurrent subluxation of the knee. The Board will explore all possibilities in this case. Disabilities of the knee joint, generally, are rated under Diagnostic Codes 5256 through 5263. See 38 C.F.R. § 4.71a. Normal range of motion of the knee is from zero degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. DC 5260 rates based on limitation of flexion. When flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. DC 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants the maximum, 50 percent rating. The diagnostic criteria applicable to recurrent subluxation or lateral instability is found at 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The words "slight," "moderate," and "severe," as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just" decisions. 38 C.F.R. § 4.6. Other DCs pertaining to the knee include DC 5258, under which a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. Because DCs 5258 and 5259 have been interpreted as already contemplating limitation of motion of the knee generally (which means it contemplates limitation of flexion and extension), the law does not allow for a separate rating under DCs 5259 and 5260 and/or 5261, because that would be compensating the same limitation of motion more than once. The Veteran raised her claim for an increased rating for her left knee disability in February 2009. Therefore, the appeal period stems from one year prior to receipt of the claim. 38 C.F.R. § 3.400. During the appeal period, the Veteran has two separate ratings for her left knee; one for limitation of flexion and one for instability. Also, staged ratings are in effect. The Veteran’s rating for instability as a result of her patellofemoral pain syndrome is 20 percent from December 26, 1999. Her rating for limitation of flexion begins on October 13, 2016, and is rated at 10 percent disabling; effective January 2, 2020, that rating increased to 30 percent disabling. Each rating and stage are discussed below. 1. Patellofemoral pain syndrome of the left knee The Veteran contends she is entitled to a disability rating in excess of 20 percent for her left knee patellofemoral pain syndrome instability. As mentioned above, knee instability is separately rated under DC 5257. A 10 percent rating is warranted for either slight recurrent subluxation or slight lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or moderate lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or severe lateral instability. 38 C.F.R. § 4.71a, DC 5257. Objective evidence of instability is not necessarily required to satisfy the criteria for a rating under DC 5257. English v. Wilkie, 30 Vet. App. 347 (2018). The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board notes that in February 7, 2021, VA amended its 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, Diagnostic Code 5257). However, as the Board is granting 30 percent for this disability for the entire period on appeal, which is the highest rating available under the Diagnostic Code, either prior to or since February 7, 2021, further discussion is not warranted. Private physical therapy records from January 2011 reflect that the Veteran reported subjective symptoms of instability. A VA examination from January 2012 reflects that the Veteran reported activity related swelling by the end of each day, and four to five instances per day of the knee giving way, such that she uses a single crutch or cane and routinely wears either a Velcro knee support strap or an orthopedic hinged brace when on her feet. The Veteran reported that she trips easily, with three to four falls per day, when not using her brace or other ambulatory aid. Upon joint stability testing, the Veteran’s anterior and posterior instability were found to be normal, as was her medial-lateral instability. The VA examiner indicated that there was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran was afforded another VA examination in October 2016. During this examination, the Veteran reported continuing to feel left knee pain as well as instability. The Veteran indicated that she sustained a fall in September 2016 when her left knee gave out and resulted in a patellar fracture. The Veteran reported daily knee pain, swelling, and stiffness or tightness. The VA examiner indicated that swelling and instability of station were contributing factors for her left knee disability. The VA examiner noted no history of recurrent subluxation, no history of moderate instability, but a history of recurrent effusion, indicating that the Veteran describes a chronic state of “swelling” of the left knee. Upon examination, the VA examiner found moderate medial joint effusion. The VA examiner clarified that joint stability testing, although indicated, was unable to be performed due to the Veteran’s acute fracture and current treatment for such. The VA examiner also indicated that the Veteran uses assistive devices, such as ACE wrap and non-metal tubi grip due to the pain and swelling of her left knee. Pursuant to the Board’s February 2018 remand, the Veteran was afforded an additional VA examination in April 2018. The VA examiner found the Veteran had a reduction in muscle strength of her left knee, rating it a 4/5 (with normal muscle strength as a 5/5). Regarding joint stability, the VA examiner indicated that there was moderate recurrent subluxation of the Veteran’s left knee, and slight lateral instability. The VA examiner also noted a history of recurrent effusion, as the Veteran reported recurrent swelling with palpable “mushy” pouch of fluid on the left knee. The VA examiner indicated that the Veteran had medial and lateral instability of the left knee, and noted that the Veteran was guarding against excessive motion of the knee in the anterior-posterior plane on exam due to patellar pain, which the VA examiner indicated “may have masked some ACL or PCL instability.” The Veteran also reported constant use of a brace for her left knee and regular use of crutches due to the instability. As a result of the July 2019 Board remand, the Veteran’s left knee was examined again in January 2020. During this examination, the Veteran reported that her condition began in 1997 with pain and her knee “giving out.” The Veteran stated that in 2016, her knee gave out which results in a broken knee cap. Currently, the Veteran indicated she experiences constant pain, swelling, stiffness, grinding, and locking of her left knee. Upon muscle strength testing, the VA examiner noted that the Veteran’s left knee had a reduction in muscle strength to a level 2/5. Regarding joint stability, the VA examiner indicated that the Veteran had slight recurrent subluxation of the left knee and severe lateral instability. The VA examiner also noted recurrent effusion or swelling on the patellar area. Upon joint stability testing, the VA examiner indicated that the Veteran’s left knee had medial and lateral instability. The Veteran reported continued use of the brace and crutches, although reporting now that the crutches are now used constantly. Throughout the appellate period, the Veteran has consistently reported left knee instability and required the use of assistive devices for walking due to her pain and unsteadiness. There are documented falls due to left knee instability. Joint stability testing of the Veteran's left knee has repeatedly shown medial and lateral instability, with possible anterior and posterior instability noted by a VA examiner, although masked by the Veteran’s guarding during testing. In addition, there was an assessment of severe lateral instability of the left knee in January 2020. Based on the above, and resolving doubt in the Veteran's favor, the Board finds that a 30 percent rating for severe lateral instability of the left knee is warranted. This is the maximum schedular rating under this diagnostic code. See 38 C.F.R. § 4.71a, DC 5257. 2. Limitation of flexion of the left knee Regarding the amended regulations pertaining to the diagnostic codes for limitation of the knees, effective from February 7, 2021, there were no changes made to Diagnostic Codes 5258-5261. 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, Diagnostic Code 5257). As noted above, the Veteran is in receipt of a 10 percent rating prior to January 2, 2020 and a rating of 30 percent since, based on limitation of motion of the left knee. Turning to the relevant facts, the Veteran had an examination for her left knee in October 2016. The VA examiner noted that the Veteran had diagnoses of left knee meniscal tear, left knee patellofemoral pain syndrome, and left knee partial MCL tear. The Veteran reported that she is continuing to have left knee pain, including left knee instability. The Veteran described her pain as “daily” rating it at an 8 out of 10 severity located supra and infra patellar, indicating that it is sharp like a knife, and feels worse with walking. The Veteran reported flare-ups of the left knee, stating her left knee swells and that the pain worsens with activity, so it was hard for her to estimate how often flare-ups occur. The Veteran reported that she cannot bend her left knee, cannot do squats, and cannot take prolonged walks due to her left knee pain and the swelling that would occur. Range of motion in the left knee was from 0 degrees extension to 50 degrees flexion. There was noted pain with weight bearing. After repetitive use testing, the examiner indicated that the Veteran experienced additional functional loss as a result of her pain, with range of motion from 0 degrees extension to 40 degrees flexion. The examiner noted that there was a reduction in left knee muscle strength but did not provide a quantifiable rating for the reduction. The examiner indicated that there was no ankylosis of the left knee. The Veteran reported constant use of an ACE wrap and non-metal tubi grip. In compliance with the February 2018 Board remand, the Veteran had another examination for her left knee condition in April 2018. The Veteran reported flare-ups of her left knee, indicating that her knee often swells, and she experiences “a lot of pain.” The Veteran also reported that she has trouble walking when her knee is swollen, she cannot bend, squat, or crawl. “I can’t put pressure on it.” The Veteran reported difficulties both ascending and descending stairs and trouble walking for long periods of time. Range of motion in the left knee was from 0 degrees extension to 95 degrees flexion. There was noted pain with weight bearing. The Veteran was unable to perform repetitive use testing, indicating that “it hurt too much.” The examiner indicated that pain, weakness, lack of endurance, and incoordination significantly limit the Veteran’s functional ability with repeated use over a period of time as well as flare-ups. The examiner noted a reduction in muscle strength, describing it as a 4/5 (with normal strength rated at a 5/5). The examiner indicated that there was no ankylosis of the left knee. The Veteran reported constant use of a knee brace and regular use of crutches. The Veteran was afforded an additional VA examination for her left knee condition in compliance with the Board’s July 2019 remand. The Veteran was examined in January 2020. The Veteran reported flare-ups of her left knee, indicating that they occur “often” and are “severe”, lasting for days, usually precipitated by activity. The Veteran also reported pain when trying to stand from a seated position, that she is unable to walk or stand for prolonged periods of time (longer than five to ten minutes), and that she is unable to bend at the knee. The Veteran also noted she is unable to lift or carry heavy objects (anything over 15 pounds). Range of motion in the left knee was from 0 degrees extension to 55 degrees flexion. There was noted pain with weight bearing. The Veteran was able to perform repetitive use testing, and the examiner noted the Veteran experienced additional functional loss as a result of her pain, with range of motion from 0 degrees extension to 35 degrees flexion. The examiner indicated that pain, fatigue, weakness, and lack of endurance significantly limit the Veteran’s functional ability with repeated use over a period of time as well as flare-ups. Further, the examiner noted that the functional loss as a result of flare-ups would result in range of motion from 0 degrees extension to 15 degrees flexion. The examiner noted a reduction in muscle strength of the left knee, describing it as a 2/5 (with normal strength rated at a 5/5), but noted no muscle atrophy. The examiner indicated that there was no ankylosis of the left knee. The Veteran reported constant use of a knee brace and crutches for her left knee. Private treatment records reflect that the Veteran continued to complain of decreased range of motion, as well as pain, discomfort and stiffness. The Veteran also reported that climbing stairs was beginning to present more difficulty, as well as squatting, bending, kneeling, walking, hopping or jumping, and running. See e.g., May 2017 private treatment records. For the period prior to January 2020, the Board finds that the Veteran’s left knee disability is manifested by flexion, at worst, to 35 degrees. Further, when considered pain on weight-bearing and repetitive use, the Board will resolve reasonable doubt in her favor and award an initial rating of 20 percent based on limitation of flexion. See Diagnostic Code 5260. For the period since January 2, 2020, the Board presently finds that the Veteran is entitled to the current, maximum 30 percent disability rating for limitation of flexion. There is no evidence of record demonstrating that the Veteran's left knee flexion is limited beyond 15 degrees. Therefore, a higher evaluation under Diagnostic Code 5260 is neither warranted nor available. However, as the Veteran’s extension has never been limited in any respect, she is not entitled to a separate rating based on limitation of extension either prior to January 2, 2020, or since. See Diagnostic Code 5261. Additionally, the manifestations for evaluation under Diagnostic Codes 5262 and 5263 are not applicable, as the presence an impairment of the tibia and/or fibula, or genu recurvatum have not been demonstrated. Furthermore, an evaluation under Diagnostic Code 5256 is not applicable. The examinations of record all consistently note that the Veteran retains some motion in her left knee; therefore, there is no finding of ankylosis (which is when the joint is fixed in place). Additionally, Diagnostic Code 5259 provides for a maximum 10 percent rating for removal of semilunar cartilage which is symptomatic, and Diagnostic Code 5258 provides a 20 percent rating for dislocated, semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. These ratings are based on unspecified symptoms, which would include the Veteran's pain and resulting limitations of function, including movement. In this case, to assign evaluations for limited range of motion simultaneously with Diagnostic Codes 5259 and 5258 would constitute prohibited pyramiding or compensating a Veteran twice for the same manifestations of disability, as the Veteran's symptoms of painful and limited motion have already been compensated. 38 C.F.R. § 4.14. The Veteran has credibly reported left knee symptoms of pain, constant sensation of giving way, limitation of motion, swelling, and weakness. She has been provided the maximum available rating under Diagnostic Code 5260 for limitation of flexion. The Board has also considered whether other Diagnostic Codes for the knee would provide an additional benefit for the Veteran; however, it determines that the preponderance of the evidence does not show that any additional Diagnostic Codes are applicable, that they would provide a higher benefit, or that they would not amount to pyramiding of the Veteran's symptoms. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5261, 5262, 5263. For similar reasons, to the extent the VA examinations did not comply with Correia or Sharp, such non-compliance is harmless error because a higher rating is not available based on limitation of motion. In reaching its conclusions, the Board acknowledges the Veteran’s belief that her symptoms are more severe than as reflected by the currently assigned ratings, and notes she is competent to describe her symptoms and their effects on her daily life and occupation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than her own reports regarding the severity of such conditions. Thus, in evaluating the claim, the Board finds that the preponderance of the evidence is against the Veteran’s claim. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.