Citation Nr: 21015255 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-62 314 DATE: March 17, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for right knee patellofemoral pain syndrome and bursitis is denied. Entitlement to an evaluation in excess of 10 percent for left knee patellofemoral pain syndrome and bursitis is denied. Entitlement to a separate 10 percent rating for right knee instability is granted. Entitlement to a separate 10 percent rating for left knee instability is granted. REMANDED Entitlement to a compensable evaluation for migraine headaches is remanded. Entitlement to a compensable evaluation for hypertension is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s left knee patellofemoral pain syndrome and bursitis have not manifested with a limitation of flexion to 30 degrees or less. 2. Throughout the appeal period, the Veteran’s right knee patellofemoral pain syndrome and bursitis have not manifested with a limitation of flexion to 30 degrees or less. 3. For the entire period on appeal, the Veteran has had no worse than mild instability in his right knee. 4. For the entire period on appeal, the Veteran has had no worse than mild instability in his left knee. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee patellofemoral pain syndrome with bursitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5260, 5261. 2. The criteria for a rating in excess of 10 percent for right knee patellofemoral pain syndrome with bursitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5260, 5261. 3. For the entire period on appeal, the criteria for a separate rating of 10 percent disabling for residuals of right knee instability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. 4. For the entire period on appeal, the criteria for a separate rating of 10 percent disabling for residuals of left knee instability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1998 to January 2002 and from May 2002 to February 2016. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran was afforded a hearing before the undersigned in November 2020. The hearing transcript has been associated with the claims file. The Veteran’s representative waived AOJ adjudication of records associated with the claims file since the most recent AOJ adjudication during the hearing testimony. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2018). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2019). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2019). 1. Entitlement to an evaluation in excess of 10 percent for right knee patellofemoral pain syndrome and bursitis 2. Entitlement to an evaluation in excess of 10 percent for left knee patellofemoral pain syndrome and bursitis The Veteran contends that he is entitled to a higher rating for his knees. His bilateral knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5260-5019 for the period prior to March 26, 2019, and under diagnostic code 5261 thereafter. 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 evaluation assigned. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5019 for bursitis instructs that the Veteran’s disability is to be rated based on limitation of motion of the affected parts. Under Diagnostic Code 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 30 percent rating is warranted for flexion limited to 15 degrees. Id. Under Diagnostic Code 5261, limitation of extension is rated as follows: extension limited to 5 degrees warrants a noncompensable rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 30 degrees warrants a 40 percent rating; and extension limited to 45 degrees warrants a 50 percent rating. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised Diagnostic Codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. DC’s 5260 and 5261 remain unchanged. However, the Board notes that DC 5257 covering subluxation and instability did change. Prior to the regulatory change, DC 5257 indicated that an assignment of a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. As of February 7, 2021, under the amended criteria, DC 5257 distinguishes between recurrent subluxation or instability and patellar instability. Under the rating criteria for recurrent subluxation or instability, a 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation; a 20 percent rating is warranted where there is either a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation or b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), or a walker) or bracing for ambulation; and a 10 percent rating is warranted where there is a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. For patellar instability, a 30 percent rating is warranted where the Veteran has 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; a 20 percent rating is warranted where the Veteran has 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; and a 10 percent rating is warranted where the Veteran has 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. 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 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; 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 criteria. ). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran’s range of motion was tested during the VA examinations in May 2015 and May 2019. At the May 2015 VA examination, the Veteran had full range of motion in his knees. At the May 2019 VA examination, the Veteran also had full range of motion in his bilateral knees. During the 2015 VA examination, the Veteran reported moderate to severe flare ups daily. There was no evidence of pain on weight bearing, on palpation of the joint, nor any evidence of crepitus bilaterally. No additional functional loss was noted after repetitive use. Pain, weakness, fatigability or incoordination were not noted to significantly limit functional ability with repeated use over time. The examiner assessed that pain produced by flare ups would limit the Veteran’s flexion to 110 degrees bilaterally. Muscle strength was normal, there was no instability noted on testing, and no ankylosis. No meniscal conditions were identified, nor were any assistive devices reported. Furthermore, the examiner noted that there was no recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or fibular impairment. X-rays did not show arthritis, but rather, bursitis. Finally, no functional impact was noted due to the Veteran’s knee disability. During the May 2019 VA examination, the Veteran reported constant daily bilateral knee pain, and infrequent sensation of clicking or giving way, no locking or swelling, and reported being able to perform all activities of daily living. The Veteran also indicated he no longer runs due to knee pain, that he has trouble with prolonged kneeling and squatting, and does not follow any specific treatment or use any assistive devices. The Veteran denied having flare ups. He also denied having functional loss or impairment due to his knee disability. No additional functional loss was noted after repetitive use. Pain, weakness, fatigability or incoordination were not noted to significantly limit functional ability with repeated use over time. Muscle strength was normal, there was no instability noted on testing, and no ankylosis. No meniscal conditions were identified, nor were any assistive devices reported. Furthermore, the examiner noted that there was no recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or fibular impairment. X-rays did not show arthritis nor any other findings. Finally, functional impact was noted to include limited running and limitations with repeated kneeling or squatting – but none on the Veteran’s ability to perform activities of daily living. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for bilateral patellofemoral pain syndrome. The Board acknowledges the Veteran’s lay reports of symptoms, such as his reports of clicking or giving way and pain. However, the focus of this rating code is limitation of flexion, and, even considering the Veteran’s lay reports of symptoms, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. The Board also notes that even on flare ups, which the 2015 VA examiner assessed to be productive of flexion limited to 110 degrees bilaterally, a compensable evaluation under the DC 5260 is not warranted. However, the Board finds that a separate rating of 10 percent bilaterally under DC 5257 for instability of the knees is warranted as the evidence shows that the Veteran has knee instability based on his competent and credible testimony from testifying that his knees give way. See English v. Wilkie, 30 Vet. App. 347. 352 53 (2018) (finding that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence). The Veteran has credibly testified that his knees give out and that he experiences instability especially on flare ups. See November 2020 hearing transcript. The Board acknowledges the Veteran did not have instability at his May 2015 examination or in May 2019, but finds his competent statements to be credible regarding his knee buckling and giving out. For these reasons, the Board finds that a separate rating of 10 percent for instability of the bilateral knees is warranted. However, the Board finds that a higher rating of moderate instability is not warranted as there is not competent medical evidence of instability (positive instability testing) or 3/5 weakness during the appellate period. Indeed, several joint stability tests were normal. Given the tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are afforded high probative value. The Board has considered the diagnostic code changes effective February 7, 2021. In this case, the Board finds that under the new code, the criteria for “recurrent subluxation or instability” is inapplicable as the Veteran does not have a diagnosed sprain or ligament tear. Under the criteria for “patellar instability”, a medical diagnosis of instability is required – which the Veteran does not have during the appellate period. Therefore, the Board will apply the version of DC 5257 prior to the recent amendments throughout the entire appellate period – as the previous version is more favorable to the Veteran. As such, a separate evaluation of 10 percent bilateral is granted for slight bilateral knee instability. 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 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 prohibits paying compensation twice for the same symptoms or functional impairment). However, the Veteran’s bilateral knee disability has not resulted in conditions that would fit the rating criteria for the other Diagnostic Codes pertaining to the knee and leg. The VA examinations and the other evidence of record do not demonstrate other meniscal conditions, ankylosis, recurrent subluxation or effusion. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for a bilateral knee disability under DC 5260. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. However, the Board finds the preponderance of the evidence is in favor of separate 10 percent disability ratings for the Veteran’s bilateral knees under DC 5257 for instability. REASONS FOR REMAND 1. Entitlement to a compensable evaluation for migraine headaches is remanded. The Board notes that the Veteran was last afforded a VA headache examination in June 2016, nearly five years prior to this decision. Since then, the record suggests the Veteran’s condition has worsened. In this regard, the Board notes that the 2016 VA examiner assessed that the Veteran did not have characteristic prostrating attacks of migraine or headache pain. However, the Veteran testified before the undersigned in November 2020 that he gets migraines lasting for about six to eight hours, requiring him to go into a dark, quiet room and lay down on many occasions. The Board therefore finds it necessary to obtain a more current VA examination which clearly addresses the current nature and severity of the Veteran’s degenerative disc disease of the lumbar spine. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to a compensable evaluation for hypertension is remanded. When VA undertakes to obtain an examination/opinion, it must ensure that the examination/opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion/examination is considered adequate “where it is based on consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one.” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Veteran was afforded a VA examination for his hypertension in May 2019. While the examiner confirmed the diagnosis of hypertension, there is no indication any blood pressure readings were taken during the examination. In fact, under “current blood pressure readings”, the examiner cited two readings from 2017 and one from March 2019. The Board finds the May 2019 examination to be inadequate for adjudication purposes for the above reasons, and further finds it perplexing that without reason, a physical hypertension examination of the Veteran did not include taking his blood pressure reading. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA and private treatment records pertinent to the Veteran’s claimed disabilities. 2. Thereafter, schedule the Veteran for an examination to determine the current severity of his service-connected migraines. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any characteristic prostrating attacks. To the extent possible, the examiner should identify any symptoms and functional impairments due to migraines alone and discuss the effect of the Veteran’s migraines on any occupational functioning and activities of daily living. If the examiner cannot give an opinion without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination to assess the current nature and severity of his hypertension. The claims file, along with any new evidence obtained as a result of this Remand, must be reviewed by the examiner. All appropriate diagnostic testing must be conducted. (Continued on the next page)   The examiner should note the current severity and manifestations of the disability, including whether the diastolic pressure is predominantly 100 mmHg or more; whether the systolic pressure is predominantly 160 mmHg or more; whether the Veteran has a history of diastolic pressure of 100 mmHg or more; and whether the Veteran requires continuous medication for control of hypertension. The examiner must also comment on the functional effects of the Veteran’s hypertension. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.