Citation Nr: 21015042 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 12-04 827A DATE: March 16, 2021 ORDER An initial evaluation in excess of 10 percent for left knee patellofemoral chondromalacia and osteoarthritis (“left knee disability”) is ¬¬denied. An initial evaluation in excess of 10 percent for right knee patellofemoral chondromalacia and osteoarthritis, status-post chondroplasty (“right knee disability”) is denied. REMANDED Entitlement to an initial disability rating in excess of 20 percent for right knee instability, associated with right knee patellofemoral chondromalacia and osteoarthritis status post-chondroplasty (“right knee instability”). FINDINGS OF FACT 1. The Veteran’s left knee disability is not shown to have manifested compensable limitations of flexion or extension, recurrent subluxation or lateral instability, dislocated or symptomatic post-removal semilunar cartilage, genu recurvatum, or malunion of tibia or fibula, and is not shown to have been ankylosed. 2. The Veteran’s right knee disability is not shown to have manifested compensable limitations of flexion or extension, recurrent subluxation or lateral instability, dislocated or symptomatic post-removal semilunar cartilage, genu recurvatum, or malunion of tibia or fibula, and is not shown to have been ankylosed. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for a left knee disability are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2020). 2. The criteria for an initial evaluation in excess of 10 percent for a right knee disability are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Air Force from January 1988 to August 2009. This appeal is before the Board of Veterans’ Appeals (Board) from a December 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s appeal for increased ratings for her knees was initially remanded by the Board in September 2014 with instruction to provide her with a current VA examination. She underwent an examination in December 2014. In May 2017 the Board found the examination inadequate and remanded again. She underwent another VA examination in July 2018. Based on this evidence, the Board denied her knee claims in February 2019. She appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which vacated the denial in an October 2019 order granting a joint motion for partial remand (JMPR). The Board remanded the issues again in April 2020 with instruction to provide a new VA examination in compliance with the JMPR. She underwent another VA examination in September 2020. The Board is therefore satisfied that, with respect to the issues decided herein, the instructions in its remands of September 2014, May 2017, and April 2020 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Disability Rating—Left and Right Knee Disabilities The Veteran asserts that the initial 10 percent disability ratings assigned to her left knee disability and her right knee disability do not contemplate the severity of her respective symptoms. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 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 (musculoskeletal system) or § 4.73 (muscle injury); 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) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Musculoskeletal VA examinations, to be adequate, must address particular issues when are where that are practicable and medically possible to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. See Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Disabilities of the knees and legs are generally rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263. The RO has rated the Veteran’s left knee disability under Diagnostic Code 5010-5620. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the hyphenated Diagnostic Code is rated by analogy, under the criteria for limitation of flexion (Diagnostic Code 5260) as well as well as posttraumatic arthritis by analogy to Diagnostic Code 5003 (Diagnostic Code 5010). The RO has rated the Veteran’s right knee disability under Diagnostic Code 5003, which evaluates arthritis. Diagnostic Code 5003 evaluates disabilities based on the degree of limitation of motion under the appropriate Diagnostic Codes. 38 C.F.R. § 4.71a. If the disability is noncompensable under the appropriate Diagnostic Code for the joint involved, a 10 percent rating will be for application for such major joint or group of minor joints affected by limitation of motion. Id. The rating criteria pertaining to Diagnostic Code 5010 was revised effective February 7, 2021. Posttraumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under an affected joint. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Prior to February 7, 2021, under Diagnostic Code 5257 for recurrent subluxation or lateral instability, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of the knee; a 20 percent rating is warranted for medical evidence showing that the recurrent subluxation or lateral instability can be characterized as moderate; and a 30 percent rating is warranted for recurrent subluxation or lateral instability which medical evidence discloses can be characterized as severe. Under Diagnostic Code 5260 for limitation of flexion, a noncompensable rating is assigned for flexion limited to 60 degrees; a 10 percent rating is assigned for flexion limited to 45 degrees; a 20 percent rating is assigned for flexion limited to 30 degrees; and a 30 percent rating is assigned for flexion is limited to 15 degrees. Under Diagnostic Code 5261 for limitation of extension, a noncompensable rating is assigned for extension limited to 5 degrees; a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent rating is assigned for extension limited to 20 degrees; a 30 percent rating is assigned for extension is limited to 20 degrees; a 40 percent rating is assigned for extension is limited to 30 degrees; and a 50 percent rating is assigned for extension is limited to 15 degrees. Separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Diagnostic Code 5256 pertains to ratings for ankylosis of a knee. Diagnostic Code 5262 applies to ratings for impairment of the tibia and fibula. Diagnostic Code 5258 applies to a dislocated semilunar cartilage. Diagnostic Code 5259 applies to removal of the semilunar cartilage. Diagnostic Code 5263 applies to rating genu recurvatum. The rating criteria pertaining to Diagnostic Code 5262 were revised effective February 7, 2021. However, as those Codes are not applicable in this matter, and the February 7, 2021 effective revision does not require further discussion. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court held that under 38 C.F.R. § 4.71, a separate evaluation may be assigned for meniscal problems under Diagnostic Codes 5258 or 5259, even when ratings are in effect under Diagnostic Codes 5257 and 5261. The Board must also consider functional impairment with respect to the baseline ROM noted during clinical evaluation. English v. Wilkie, 30 Vet. App. 347 (2018) (the Board must adequately explain how it considered functional loss due to pain, including during flare-ups). Evidence and Analysis In a pre-discharge progress note of July 2009, a clinician reported that the Veteran endorsed left and right knee pain, weakness, and stiffness, underscoring pain behind her patellae for years. The clinician indicated that the Veteran underwent arthroscopy in 2006, treated with chondroplasty of the right patella. The Veteran also reported that she sustained a left knee injury in 2008. The Veteran endorsed audible crepitus in both knees. The Veteran indicated a functional impact consisting of an inability to climb stairs, avoidance of running, and avoidance of impact activities and quick turning. In August 2009, the Veteran was afforded a pre-discharge examination. A clinician reviewed the claims file; considered the Veteran’s lay accounts; and conducted a limited evaluation (largely duplicative of the July 2009 pre-discharge progress note). The Veteran endorsed left and right knee pain, weakness, and stiffness, underscoring pain behind her patellae for years. The clinician indicated that the Veteran underwent arthroscopy in 2006; and was treated with chondroplasty of the right patella. The Veteran also reported that she sustained a left knee injury in 2008. The Veteran endorsed audible crepitus in both knees. The Veteran indicated a functional impact consisting of an inability to climb stairs; avoidance of running; and avoidance of impact activities and quick turning. The Veteran did not report flare-ups. On examination, each knee demonstrated flexion to 140 degrees. The clinician reported that stability testing was normal. Three small scars in the medical and anteromedial aspect were consistent with an arthroscopy. The clinician noted that x-ray imaging showed unremarkable bilateral knees. The clinician provided a diagnosis of bilateral knee patellofemoral chondromalacia and patellofemoral osteoarthritis status-post right knee chondroplasty. Subsequent VA and private treatment records document that a right knee MRI in August 2010 revealed a tear of the medial meniscus, which was noted to represent a possible tear or postsurgical change; there were also small, marginal osteophytes of the patella noted, with advanced changes of chondromalacia of the articulating cartilage of the patella and thinning of the articulating cartilage of the weight bearing portions of the medial femoral condyle, a suspected loose body along the posterior-superior aspect of the lateral femoral condyle, and a small Baker’s cyst with small multiloculated ganglion cyst along the posterior-superior aspect of both the medial and lateral femoral condyle. At that time, the Veteran denied locking instability but admitted to giving way, and she was fitted for a right knee brace. In December 2014, the Veteran was afforded a VA examination. A VA clinician reviewed the claims file; considered the Veteran’s lay accounts; and conducted an appropriate evaluation (hereinafter “VA exam protocols”). The Veteran reported flare-ups which limit activities like exercising and prolonged sitting or standing. Flare-ups manifest as pain and swelling. As to the left knee, the clinician opined that he could not offer an opinion whether pain, fatigability or incoordination significantly limited functional ability during flare-ups without resorting to speculation. As to the right knee, the clinician opined that he was unable to articulate whether the Veteran had additional functional limitations during flare-ups without resorting to mere speculation because the Veteran was not examined during a flare-up. On examination, the Veteran demonstrated right knee flexion to 100 degrees with pain and extension to zero degrees with pain. Left knee flexion was to 105 degrees and extension was to zero degrees. There was no bilateral pain on weight-bearing. Bilateral repetitive use testing resulted in no additional limitation in range of motion. The Veteran retained 5/5 bilateral knee strength. The clinician indicated that the Veteran did not have bilateral ankylosis, a history of recurrent subluxation, muscle atrophy, or recurrent effusion. Joint instability testing revealed right knee anterior instability to 2+ (5-10 mm), posterior instability to 1+ (0-5 mm), medial instability to 1+ (0-5 mm), and lateral instability to 1+ (0-5 mm). The clinician noted a past right knee meniscal tear, with prior chondroplasty surgery in February 2007, and residual pain due to meniscectomy. X-ray imaging disclosed bilateral knee arthritis as well as bilateral crepitus. The clinician indicated that the Veteran had functional loss that included prolonged standing and walking. In July 2018, the Veteran was afforded another VA examination. The clinician followed VA exam protocols. The Veteran did not report flare-ups. The clinician opined that examination was not conducted immediately after repetitive use over time. The clinician indicated that he could not comment whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over time without resorting to speculation. On examination, the Veteran demonstrated right knee flexion to 110 degrees with pain and extension to zero with pain. Left knee flexion was to 120 degrees with pain and extension was to zero with pain. Bilaterally, there was no evidence of pain on weight-bearing. Repetitive use testing resulted in no additional limitation in range of motion bilaterally. Muscle strength was normal bilaterally, without atrophy. There was no evidence of ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion; however, joint stability testing revealed right knee anterior, posterior, medial, and lateral instability each to 1+ (0-5mm). The clinician noted the Veteran’s history of bilateral meniscal tear, with frequent episodes of joint pain and effusion; however, there was no joint “locking.” Bilaterally, there was no evidence of recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. X-ray imaging disclosed bilateral knee arthritis. The clinician indicated that the Veteran’s bilateral knee disability resulted in functional impact upon her current occupation as a privacy officer, with less than one week of work time lost in last 12 months and resulting difficulty with standing and walking for prolonged periods of time. In September 2020, the Veteran was afforded another VA examination. A clinician followed VA exam protocols. The Veteran endorsed right knee flare-ups that are more severe than left knee flare-ups. Flare-ups of the right knee last from one to three days and flare-ups of the left last from one to two days. The Veteran endorsed functional loss, described as repeated use of the left or right knee cause pain and right knee instability. The Veteran conveyed that she was unable to stand for more than 5 to 10 minutes; unable to crouch; and unable to run. On examination, the Veteran demonstrated right knee flexion to 130 degrees and right knee extension to zero degrees. Left knee flexion was to 130 degrees and left knee extension was to zero degrees. Bilaterally, there was localized tenderness at the right patella and lateral aspects and at the left patella and medial/lateral aspects. While right knee range of motion contributed to functional loss, left knee range of motion did not. No pain was elicited bilaterally. Repetitive use testing resulted in no additional limitation in range of motion, bilaterally. While the clinician indicated that the Veteran was not examined immediately after repetitive use over time, the clinician indicated that pain and lack of endurance significantly limited functional ability with repeated use over time bilaterally. Bilaterally, this manifests as bilateral flexion to 90 degrees and bilateral extension to zero degrees. The clinician provided that same exact information concerning flare-ups as to ranges of motion. There was evidence of right knee swelling, but no evidence of left knee swelling. The Veteran retained 5/5 bilateral knee strength. Bilaterally, there was no reported muscle atrophy. There was no objective evidence of bilateral ankylosis, bilateral history of recurrent subluxation, history of lateral instability, or history of recurrent effusion. Right knee joint stability was 1+ (0-5mm) at all indices. Left knee joint stability testing was normal as to anterior stability, otherwise 1+ (0-5mm) at other indices. There was no evidence of a meniscus (semilunar cartilage) condition or history bilaterally. The clinician noted the Veteran’s surgical procedures, as reported in the other examinations. Bilateral knee passive range of motion was zero to 140 degrees (flexion) and 140 to zero degrees (extension). The clinician reported the presence of two right knee scars—anteromedial .7 x .5 cm. and medial 1.0 x .6 cm. The Veteran did not use assistive devices. Imaging testing was not performed. The clinician indicated that the Veteran’s bilateral knee disability resulted in functional impact upon occupational tasks that required walking or standing for prolonged periods of time. Also, the Veteran would have difficulty kneeling, bending, or squatting. The Veteran believes that her right and left knee disabilities are more severe than that contemplated by 10 percent disability ratings. She is competent to report that which is discernable, such as bilateral knee pain. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, she lacks the medical knowledge and orthopedic expertise to assess the clinical severity of knee disabilities. See 38 C.F.R. § 3.159(a)(1). As such, this lay evidence does not constitute competent medical evidence. The current 10 percent rating for left knee disability is under Diagnostic Code 5010-5620 and the current 10 percent rating for right knee disability is under Diagnostic Code 5003. These disability ratings of 10 percent are the maximum rating for pain without a showing of compensable functional limitations. The pertinent evidence is summarized above. No examination during the evaluation period found limitations of flexion or extension that would be compensable under Diagnostic Codes 5260 or 5261 criteria. Consequently, a rating in excess of 10 percent under those Diagnostic Codes is not warranted. Likewise, no examination found ankylosis, genu recurvatum, tibia or fibula impairment, or dislocated or symptomatic post-removal semilunar cartilage. Consequently, separate compensable ratings under Diagnostic Codes 5256, 5258, 5259, 5260, 5261, 5262, or 5263 are not warranted. The Veteran is in receipt of separate ratings based on instability under Diagnostic Code 5227. Her right knee instability rating is addressed in the remand section of this decision. An increase to her left knee rating was denied by the Board in February 2019. This denial was not vacated by the Court and thus remains final. As such, the Board will not address the left knee instability rating. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, supra. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, the minimal compensable rating for the both knees is already assigned, and the analysis must turn to whether functional loss warranting a higher than 10 percent disability rating is reasonably shown. The most recent August 2020 clinician indicated that pain and lack of endurance with repetitive use and during flare-ups caused functional loss which resulted in diminished bilateral flexion (which at 90 degrees is noncompensable). Consequently, increased disability ratings based on functional limitations due these factors are not warranted. While the Veteran has been shown to experience bilateral knee pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but of itself does not constitute functional loss. See Saunders, supra. Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” to constitute functional loss warranting an increased rating. See 38 C.F.R. § 4.40. The Board has no reason to question that the Veteran’s right and left knee disabilities result in the functional limitations that she has endorsed, as discussed above. These limitations are contemplated by the criteria for the 10 percent disability rating that is assigned. The Board also finds that the right and left knee disabilities shown do not include any that are not adequately addressed by the schedular rating criteria. Therefore, the Board finds that the preponderance of the evidence is against the claims for initial disability ratings in excess of 10 percent for the Veteran’s left knee and right knee disabilities. Accordingly, the appeal in this matter must be denied. REASONS FOR REMAND Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that she is afforded every possible consideration. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. Entitlement to an initial disability rating in excess of 20 percent for right knee instability The Board finds that there has not been substantial compliance with its April 2020 remand instructions concerning right knee instability. Therefore, this issue must be remanded for further evidentiary development. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the Board instructed regarding the Veteran’s right knee instability, the clinician must ascertain whether the Veteran had right knee instability prior to December 2014. In this regard, a January 2007 treatment record noted the Veteran’s complaint of her right knee giving way. Additionally, in her March 2012 appeal to the Board, the Veteran stated that her right knee gave out. Upon review of the RO’s examination instructions and the examination report, these identified documents are not addressed with any degree of specificity. Therefore, an addendum opinion is required. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Arrange for a VA right knee instability addendum with an appropriate examiner. The examiner must review the claims file and indicated such review in the addendum. A new examination may be ordered only if the examiner deems it necessary. The examiner should provide an opinion as the Veteran’s right knee instability prior to December 2014. In so doing, the examiner must address with specificity (a) the January 2007 treatment record which noted the Veteran’s complaint of her right knee giving way and (b) her March 2012 substantive appeal, in which she stated that her right knee gave out. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. J. GALLAGHER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.