Citation Nr: 21022099 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-19 456 DATE: April 14, 2021 ORDER Entitlement to a separate rating for recurrent subluxation or lateral instability of 20 percent disabling for a left knee patellofemoral pain syndrome is granted. Entitlement to an increased rating in excess of 10 percent disabling for a left knee patellofemoral pain syndrome is denied. Entitlement to an increased rating in excess of 10 percent disabling for a right knee patellofemoral pain syndrome is denied. FINDINGS OF FACT 1. The Veteran’s left knee disability, diagnosed as patellofemoral pain syndrome is manifested by moderate recurrent subluxation and/or lateral instability requiring prescription of a brace, but no surgical intervention for the entirety of the period on appeal. 2. The Veteran’s left knee patellofemoral pain syndrome is manifested by range of motion from 0 to 130 degrees at worst with painful motion for the entirety of the period on appeal. 3. The Veteran’s right knee patellofemoral pain syndrome is manifested by range of motion from 0 to 130 degrees at worst with painful motion for the entirety of the period on appeal. CONCLUSIONS OF LAW 1. The criteria for a separate 20 percent rating, but no higher, for a left knee patellofemoral pain syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5257 (2017). 2. The criteria for a rating in excess of 10 percent for a left knee patellofemoral pain syndrome 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 (2017, 2021). 3. The criteria for a rating in excess of 10 percent for a right knee patellofemoral pain syndrome 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 (2017, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1997 to May 2000. These matters arise from an April 2014 Department of Veteran’s Affairs (VA) Regional Office decision granting service connection for the Veteran’s left and right knee disabilities. The appeal was previously before the Board of Veterans’ Appeal (Board), once in October 2018 and most recently in June 2020. In both decisions, the Board remanded the issues for additional development. The Board finds that the remand directives were substantially complied with and therefore issues this decision on the merits. Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient. A coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The rating of the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Different ratings may be assigned for separate periods of time if distinct periods are shown by the competent evidence of record during the pendency of the appeal that warrants different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant applies. Marcoux v. Brown, 9 Vet. App. 289 (1996); VAOPGCPREC 11-97 (Mar. 24, 1997), VAOPGCPREC 3-2000 (April 10, 2000). Accordingly, the disability must be rated according to both the old and new rating criteria, and a veteran must receive the benefit of the more favorable rating schedule. If a veteran is granted a higher rating under the newer version, the earliest effective date is the date the new version took effect. Whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another provided that VA offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429 (1995). 1. Entitlement to an increased rating for left and right knee disabilities In the April 2014 rating decision, the Veteran’s left and right knees were initially rated under diagnostic code 5257 (Knee, other impairment of). An April 2020 RO rating decision increased the Veteran’s left and right knee ratings to 10 percent with an effective date of October 22, 2012, based on Public Law 112-154, Section 506. (38 C.F.R. § 4.1, 38 C.F.R. § 3.400). At this time the diagnostic code was changed to 5260 (Leg, limitation of flexion), based on painful range of motion. Diagnostic codes and rating criteria for musculoskeletal disabilities, including for the knee, were updated on February 7, 2021. As such, the Veteran’s knee disabilities will be evaluated under both diagnostic codes in effect both prior to after February 7, 2021. 38 C.R.F. § 4.59 grants a minimum compensable rating under applicable diagnostic code for range of motion that is painful. For the knee, this is diagnostic codes 5260 or 5261 for flexion and extension. This has not changed with the February 7, 2021 update to the diagnostic codes. The February 7, 2021 regulations changed diagnostic codes 5257, the diagnostic code for rating knee instability. Prior to February 7, 2021, diagnostic code 5257 provided rating criteria for “recurrent subluxation or lateral instability” with three levels, severe (30 percent), moderate (20 percent), and slight (10 percent). Effective February 7, 2021, the diagnostic code was changed. It still provides three ratings, at 10, 20, and 30 percent for recurrent subluxation and instability but the criteria for each has changed. Now, a 30 percent disabling rating requires 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 rating of 20 percent disabling requires one of the following: (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), walker) or bracing for ambulation. A 10 percent disabling rating requires 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. The changed criteria also provides for patellar instability ratings under diagnostic code 5257. A 30 percent disability rating for patellar instability requires 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 a walker. A 20 percent disabling rating requires 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. A 10 percent disabling rating requires 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. The diagnostic code also has two notes. Note (1) reads for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note 2 reads a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Turning to the evidence of record, the Veteran most recently underwent a VA examination in December 2020. At the examination, the Veteran stated that his knee pain, currently diagnosed as patellofemoral pain syndrome, had increased. The Veteran states he has increased pain using stairs or twisting. The examination found that the Veteran had normal full range of motion of 0 to 140 degrees in both knees from flexion to extension. The Veteran was not examined immediately after repetitive use over time, repetitive use testing shows no reduction in functional range of motion, and pain, weakness, fatigability, and incoordination do not significantly limit functional ability. These findings are medically consistent with the Veteran’s statements. Regarding flare-ups, the described range of motion is still normal with full range of motion from 0 to 140 degrees for the right knee and not affected by pain, fatigue, weakness, lack of endurance or incoordination. For the left knee, the range of motion is still 0 to 140, but is affected by pain. Range of motion remained the same on passive and non-weight bearing range of motion for each knee. There was no evidence of pain on weightbearing. Muscle strength testing is normal for both knees and no ankylosis was documented. The examiner stated that there is no history of recurrent subluxation, lateral instability, or recurrent effusion. All joint stability testing was normal. The examiner documented no findings of recurrent patellar dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. There was no evidence of meniscal conditions or surgical procedures. The examiner also stated that there are no assistive devices used for locomotion. The examiner opined that there is no change in the service-connected diagnosis of patellofemoral pain syndrome for either knee. The previous VA examinations were inadequate for failing to address various requirements, such as not addressing instability though there was objective evidence of it in the records, or new requirements established by court decisions as noted in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), which are addressed in the December 2020 VA examination report. However, the findings in the February 2014 and July 2019 examinations are generally consistent with the December 2020 examination’s findings, as the range of motion testing in these examination reports do not reflect flexion was limited to 30 degrees or less, as required for the next higher 20 percent rating under DC 5260. The Board reviewed the Veteran’s personal statements and finds them credible and consistent with the medical records. The Veteran has complained of pain in both knees, that his left knee has been worse than his right, and that his left knee has a history of giving out. See e.g., September 2020 VA Treatment Record; June 2016 VA Treatment Record. Pain, its relative level, and the giving out of one’s knee(s) are things a lay person is competent to attest to. As such, the Board finds the Veteran’s testimony competent and credible as pain, its relative level, and the giving out of one’s knee(s) are things a lay person is competent to attest to. Further, the Veteran’s complaints have also been consistent over the years. The Board notes that the giving out of the knee, a symptom of instability and subluxation under diagnostic code 5257 is separate and distinct symptomatology from painful range of motion under diagnostic code 5260. As such, the evaluates and assigns rating separately under the diagnostic codes. The Board acknowledges the lay reports of the Veteran’s symptoms and has also taken into consideration the provisions, to include reports of flare ups under DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Board finds that the Veteran’s symptoms and functional limitations do not more closely approximate the criteria for the next higher rating. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). The reported range of motion results contemplate the Veteran’s pain during testing, and there is no objective indication that, during flare-ups, the Veteran’s pain is or has been so disabling as to meet the criteria to warrant any higher rating, as the Veteran’s limitation of flexion of each knee was, at worst, 130 degrees. Notably, the criteria of the General Rating Formula are to be applied with or without symptoms such as pain. A review of the record of regarding recurrent subluxations and lateral instability under diagnostic code 5257 find that a September 2020 treatment note also shows that the provider prescribed a brace for the Veteran’s left knee. The brace was prescribed to address the recurrent issues with it giving out. While the September 2020 note states not much change to the knees, it does demonstrate a continued history of recurrent subluxation and/or instability of the left knee that requires the prescription of a brace to address it. The Board finds this evidence more probative than the recent December 2020 VA examination regarding stability as the Veteran is competent to report his knee giving out and has reported it consistently, and the December 2020 examination does not acknowledge or address these treatment notes. Based on the above, the Board finds that the Veteran’s knees are manifested by moderate recurrent subluxation or lateral instability prior to February 7, 2021. This finding is based on the symptomatology being sufficiently severe requiring a knee brace, and therefore is greater in severity than mild subluxation that would likely not require treatment with a brace. However, the symptomatology is not sufficiently great to require surgical intervention to correct it and is not severe. This is further supported by the fact that the December 2020 examination did not find severe subluxation. As such, the Veteran is entitled to a separate rating of 20 percent under the pre-February 7, 2021 version of diagnostic code 5257 for the entire appeal period. The Board notes that Note (1) of the updated diagnostic code 5257 defines the patellofemoral complex as consisting of the quadriceps tendon, the patella, and the patellar tendon. Dorland’s Illustrated Medical Dictionary (27th edition) defines the patellofemoral joint as including the, among other components, the quadriceps muscle, patella, and patellar tendon. As such, patellofemoral pain syndrome involves the patellofemoral complex and may be appropriately rated under diagnostic code 5257 as a diagnosed condition involving the patellofemoral complex. The September 2020 treatment record recognizes recurrent subluxation in the Veteran’s left knee and the provider prescribed a brace to treat the condition. Therefore, the Veteran qualifies for a 10 percent rating under the post-February 7, 2021 diagnostic code 5257. The Board finds the Veteran’s left knee disability does not meet a 20 percent or greater rating under the post February 7, 2021 diagnostic code 5257. The Veteran does not have one of the three required diagnosis, a sprain, incomplete ligament tear, or complete ligament tear under diagnostic code 5257 for recurrent subluxation or instability. Similarly, the Veteran does not qualify for 30 percent rating because there is no evidence of a complete ligament tear. The Veteran also does not qualify for a 20 or 30 percent rating under the patellar instability prong as both ratings require surgical repair and there is no evidence of such surgery. Therefore, under the post February 7, 2021, diagnostic code 5257, the Veteran is only qualified for a 10 percent rating for his left knee. The Board reviewed the Veteran’s right knee symptoms but found no symptoms of recurrent subluxation or instability for a separating rating. Based on the above, the Veteran qualifies for a separate 20 percent rating, but no higher, under pre-February 7, 2021 diagnostic code 5257, for the entirety of the period on appeal for his left knee disability. The Board notes that the changes to diagnostic code 5257 went into effect February 7, 2021, and no relevant evidence regarding the Veteran’s knee has been obtained or affiliated with the claims file since February 7, 2021, the Board finds that these changes need not apply to the Veteran’s knee disability. Further, the rating under the pre-February 7, 2021, change is the more favorable rating and therefore is to be applied for the entire period on appeal. See Marcoux, supra. Therefore, the Board grants a separate rating of 20 percent under diagnostic code 5257 (2017) for the Veteran’s left knee disability for the entirety of the period on appeal. Turning to the remainder of the Veteran’s symptoms, the Board finds that diagnostic code 5260 is the most appropriate rating for the remaining symptoms of the Veteran’s left and right knees. This diagnostic code is consistent with diagnosis of bilateral patellofemoral pain syndrome for painful motion for both knees. The Veteran’s range of motion for both knees is full range of motion from 0 to 140 degrees upon examination in February 2014 and December 2020 with pain, and 130 degrees in flexion during the July 2019 VA examination without evidence of pain. 38 C.F.R. § 4.59 states where flexion elicits such painful manifestations, the minimum compensable rating should be assigned. Flexion for the knees is governed by diagnostic code 5260 and the minimum compensable rating is 10 percent, which otherwise requires a limitation of flexion to 45 degrees. A higher rating of 20 percent requires a limitation of flexion to 30 degrees. The Veteran is not limited to less than 45 degrees of flexion in either knee but exhibits painful motion in both knees. Therefore, each knee qualifies for a 10 percent rating under 5260. The Board has considered other diagnostic codes and finds that none are applicable. The evidence of record further does not show any meniscal injuries that would qualify the Veteran for a higher rating under diagnostic codes 5258 or 5259, and no indication of limitation of extension under DC 5261. No evidence of tibia or fibular impairment is noted in the record for an increased rating under diagnostic code 5262. There is also no record of ankylosis and therefore a higher rating is not warranted under diagnostic code 5256. Diagnostic code 5263 is inapplicable because there is no evidence of genu recurvatum and it only provides for a 10 percent rating. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for an increased rating under diagnostic code 5260. The benefit of the doubt rule does not apply, and the Veteran’s claims must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-55 (1990); 38 U.S.C. § 5107(b). To summarize, the Board grants a separate rating of 20 percent for recurrent subluxation and lateral instability of the Veteran’s left knee only under the pre-February 7, 2021 diagnostic code 5257. The Board continues 10 percent ratings for each knee under diagnostic code 5260, therefore denying an increased rating. The orders for all ratings run for the entirety of the period on appeal. Sarah Campbell Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.