Citation Nr: 21014821 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 11-07 935 DATE: March 15, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for patellofemoral syndrome (PFS) and degenerative joint disease (DJD) of the right knee is denied. Entitlement to a disability rating in excess of 10 percent for PFS and DJD of the left knee is denied. Entitlement to a separate rating of 10 percent for slight instability of the right knee is granted from August 22, 2009. Entitlement to a separate rating of 10 percent for slight instability of the left knee is granted from August 22, 2009. FINDINGS OF FACT 1. The Veteran’s right knee PFS and DJD was manifested by range of motion (ROM) no worse than flexion from zero to 60 degrees and extension from 60 to zero degrees, with no evidence of ankylosis. 2. The Veteran’s left knee PFS and DJD was manifested by ROM no worse than flexion from zero to 65 degrees and extension from 65 to zero degrees, with no evidence of ankylosis. 3. The preponderance of the evidence shows slight instability of the right knee for the entire period on appeal. 4. The preponderance of the evidence shows slight instability of the left knee for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for right knee PFS and DJD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5260, 5261. 2. 1. The criteria for an initial disability rating in excess of 10 percent for right PFS and DJD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5260, 5261. 3. From August 22, 2009, a separate rating of 10 percent is warranted for slight instability of the right knee. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, DC 5257. 4. From August 22, 2009, a separate rating of 10 percent is warranted for slight instability of the left knee. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1982 to May 1983. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in April 2018; a transcript of the hearing has been associated with the Veteran’s claims file. This case was previously before the Board in May 2018 when it was remanded for additional development to include a new VA examination to clarify the current nature and severity of the Veteran’s bilateral PFS and DJD. The record establishes VA requested and obtained a new VA examination in November 2020. The Board notes that, to the full extent possible, VA complied with all prior remand instructions, and there exist no deficiencies in VA’s duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998); but see D’Aries v. Peake, 22 Vet. App. 97, 104 (2008). The matter has returned to the Board for further appellate review. The Board acknowledges the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a claim for a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased rating claim when raised by the Veteran or the record. In this case, while the Veteran’s combined disability rating is 100 percent effective November 2020, the record does not reflect that the Veteran is unemployable due to service-connected bilateral PFS and DJD, posttraumatic stress disorder (PTSD) with major depressive disorder, and fibromyalgia associated PTSD. In fact, it was noted during the November 2020 VA knee and lower leg examination the Veteran is currently employed. Accordingly, a TDIU claim has not been raised, and no action under Rice is necessary. This case raises no further issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Increased rating for bilateral knee disabilities Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairment of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Disabilities of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202; 38 C.F.R. § 4.40, 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The regulations pertaining to rating the musculoskeletal system including DCs 5000-5331 were amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5000-5331). After a thorough review of the old and new regulations addressing the schedule of ratings for the musculoskeletal system, the Board observes the substantive criteria for DCs 5003, 5260, and 5261 remains the same. The Veteran’s knees are currently both rated as 10 percent disabling under DC 5003, which pertains to limited motion resulting from degenerative arthritis. 38 C.F.R. § 4.71a. Under DC 5003, arthritis is rated based on limitation of motion under the appropriate DCs for the specific joint or joints involved, in this case DC 5260 and DC 5261. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent applies for each such limitation of motion to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Limited flexion of the knee is rated under DC 5260. A noncompensable rating is assigned when flexion is limited to 60 degrees; a 10 percent rating is warranted when limited to 45 degrees; a 20 percent rating is warranted when limited to 30 degrees; and, a 30 percent rating is warranted when limited to 15 degrees. Id. Limited extension of the knee is rated under DC 5261. A noncompensable rating is assigned when extension is limited to 5 degrees; a 10 percent rating is warranted when limited to 10 degrees; a 20 percent rating is warranted when limited to 15 degrees. Higher disability ratings are available for worsening degrees of limitation. Id. Normal range of motion of the knee is from 0 to 140 degrees. Id., Plate II. The Board notes that separate ratings may be assigned where a knee disability includes both limitation of flexion under DC 5260 and limitation of extension under DC 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). Post service treatment records include a February 2017 primary care record that noted increased knee pain, and the Veteran’s knees were giving out, leading to occasional falls. The same record noted the Veteran requested knee braces. A March 2017 VA orthotics prosthetics consultation noted the Veteran was evaluated for knee braces bilaterally. The same record also noted the Veteran wears braces at night and experienced 6 falls in December 2017. A July 2017 general medical examination noted the Veteran complained about knee pain. A March 2018 rehabilitation record noted the Veteran’s knee pain was reported as worse than last visit. An April 2018 non-VA record notes bilateral knee pain, right worse than left, with intermittent right knee buckling. A September 2018 primary care record notes the Veteran’s reports that her knees occasionally give out, and she experiences mechanical falls as a result. The Veteran also reported numerous X-rays of her knees and a consultation with orthopedic surgeons. The claims file includes a February 2016 VA knee and lower leg conditions examination wherein the examiner confirmed diagnoses of bilateral knee joint osteoarthritis and bilateral patellofemoral pain syndrome. The Veteran reported flare-ups described as increased bilateral knee pain with prolonged positioning including lying down, sitting, standing, walking, and stair climbing. ROM results in the right knee were noted as flexion from 0 to 125 degrees, and extension 125 degrees to 0. Pain was noted in flexion. The examiner noted there is objective evidence of crepitus. Pain was noted to significantly limit functional ability with repeated use, described in terms of ROM as flexion 0 to 120 degrees, and extension 120 degrees to 0. ROM results in the left knee were also noted as flexion from 0 to 125 degrees, extension 125 degrees to 0, with pain in flexion and objective evidence of crepitus. Pain was noted to significantly limit functional ability with repeated use; described in terms of ROM as flexion 0 to 120 degrees; extension 120 degrees to 0. There was no ankylosis noted bilaterally. The examination was negative for instability, recurrent effusion, meniscal conditions, or prior surgical procedures. Imaging studies were noted. Functional impact on employment was noted but not described. In conclusion, the examiner noted that there were arthritic changes bilaterally. The claims file also includes a July 2017 VA knee and lower leg conditions examination, wherein the examiner confirmed diagnoses of bilateral knee joint osteoarthritis and bilateral patellofemoral pain syndrome. The examiner noted no changes in the Veteran’s medical care had occurred since the February 2016 examination. The Veteran reported that she can barely get out of bed because of her knee pain and her knees keep giving way. The report notes the Veteran was seen by a VA orthopedist in March 2016; however, no clinical abnormalities were noted, or treatment offered. Flare-ups were not reported. No ROM results were noted, as the Veteran reported excruciating pain prevented knee movement bilaterally. The examination was negative for crepitus, ankylosis, joint instability, recurrent effusion, meniscal conditions, or past surgical procedures. The Veteran uses a cane to keep the pressure of her knees during locomotion. No impact was noted on the Veteran’s ability to work. Following the Board’s May 2018 remand, the Veteran was afforded a new VA knee and lower leg conditions examination dated November 2020. The examiner confirmed bilateral patellofemoral syndrome and bilateral degenerative joint disease. Flare-ups were reported, and the Veteran described functional loss as “bending knees.” ROM results in the right knee were noted as flexion from 0 to 65 degrees, extension 65 degrees to 0, with pain noted in both ROMs that was specifically noted to not result in functional loss. Objective evidence of crepitus was noted. Repetitive use testing did not result in additional loss of function or ROM. However, pain, fatigue, weakness, and lack of endurance resulted in functional loss described in terms of ROM, as flexion 0 to 60 degrees and extension 60 degrees to 0. ROM results in the left knee were also noted as flexion from 0 to 70 degrees, extension 70 degrees to 0, with pain in both flexion and extension, but not noted to result in functional loss. Crepitus was noted. No change in ROM was noted with repetitive use testing. However, pain, fatigue, weakness, and lack of endurance resulted in functional loss described in ROM, as flexion 0 to 65 degrees and extension 65 degrees to 0. No ankylosis was noted bilaterally. The examination was negative for instability, recurrent effusion, meniscal conditions, patellar dislocation, or prior surgical procedures. Imaging studies were noted. The Veteran regularly uses knee braces and a cane to assist with locomotion. Functional impact on employment was noted and described as standing, walking, sitting, stair climbing, kneeling, squatting, bending. In conclusion, the examiner noted that there is a progression in the Veteran’s patellofemoral syndrome and degenerative joint disease bilaterally. During the Veteran’s April 2018 Board hearing, the Veteran asserted suffering from knee pain including swelling, discomfort, burning, and fatigue that prevents her from running, walking long distances, or going up and down stairs. In addition, she testified that it hurts to stand, sit, or bend; she has fluid on her knees; and she experiences knee locking, falling, and instability. While the Veteran is competent to observe her knee disability symptoms, including pain and prescription medications to treat her pain symptoms, the record does not show that she has the training or credentials to determine the current nature, extent, and severity of those symptoms in order to evaluate the proper disability rating concerning her bilateral knee disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The evidence of record shows a limitation of flexion no worse than to 60 degrees for the right knee and 65 degrees for the left knee after repetitive use testing over time. Based on this evidence, the Board finds that limitation of motion would be rated noncompensable for both knees. Thus, the 10 percent rating under DC 5003 is warranted and appropriate. Moreover, the Veteran’s disability rating already contemplates the functional loss, or any other disability contemplated by DeLuca, supra, which would support a higher evaluation. Although the Board acknowledges that the Veteran has consistently reported experiencing pain and swelling in both knees resulting in difficulty with prolonged ambulation, that symptomatology is already encompassed within the assigned ratings. The appeal to this extent is denied. In order to maximize the Veteran’s disability rating, the Board has also considered the applicability of multiple DCs, under 38 C.F.R. § 4.71a, to rate knee disabilities including DC 5256 (for ankylosis), DC 5258 (for dislocated semilunar cartilage), DC 5259 (for symptomatic removal of semilunar cartilage), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). A thorough review of the claims file reveals no documented symptomatology; thus, the Board finds these DCs are not for application in this matter. The Board is, however, aware that the Veteran has alleged bilateral knee instability and reported falling on occasion. As noted above, while the Veteran does not have the training or credentials to determine the proper disability evaluation concerning her bilateral knee symptoms, Jandreau, supra, the Veteran is competent to report symptoms such as buckling and her knees giving out. The Board finds her reports are credible and consistent in the record throughout the period on appeal. Objective medical evidence is not categorically more probative than lay evidence of instability. See English v. Wilke, 30 Vet. App. 347 (2018). As such, the evidence of bilateral knee instability is at least in equipoise, and a separate 10 percent rating for slight instability is warranted for each knee under DC 5257 from August 22, 2009, the date of claim. The question remaining before the Board is if the Veteran’s separate ratings for bilateral knee instability warrant an increased rating in excess of 10 percent. Under the old criteria, DC 5257 rated recurrent subluxation or lateral instability of the knee. A 10 percent rating was warranted for slight instability, a 20 percent rating was warranted or moderate instability, and the maximum 30 percent rating was warranted for severe instability. The criteria did not define what constituted slight, moderate, or severe recurrent subluxation or lateral instability. Under the amended criteria, DC 5257 also rates patellar instability. 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 warrants a 10 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker warrants a 20 percent rating. 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 walker warrants the maximum 30 percent rating. The Board finds under the old DC 5257 criteria, in defining slight, moderate, severe, in cases where Veterans attest to lateral instability, but objective testing does not reveal evidence of instability, such instability is no more than slight. That is the case here, as the Veteran testified to instability and knee buckling during the April 2018 Board hearing, but tests done during VA examinations did not reveal evidence of instability. Turning to the amended DC 5257, the Board notes the Veteran’s patellofemoral condition is not noted to have required a surgical repair. Thus, while there is a diagnosed condition involving the patellofemoral complex with recurrent instability, no more than a 10 percent rating is warranted. Therefore, the Board finds that the Veteran is entitled to a 10 percent rating for each knee, but no more, under either version of DC 5257. In conclusion, the Board finds that the evidence of record supports separate initial ratings of 10 percent, but no more, for bilateral knee instability. Otherwise, the evidence of record is against the Veteran’s claims for ratings in excess of 10 percent for bilateral knee PFS and DJD. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.