Citation Nr: 21023162 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-08 795 DATE: April 20, 2021 ORDER A rating in excess of 10 percent for left knee patellofemoral pain syndrome is denied. FINDING OF FACT For the entire appeal period, the Veteran’s left knee patellofemoral pain syndrome is manifested by subjective complaints of pain, stiffness, and aching, with flexion limited to, at most, 105 degrees and full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left knee patellofemoral pain syndrome not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from August 1987 to December 1987 and on active duty from October 1989 to June 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2011 by a Department of Veterans Affairs (VA) Regional Office. In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2018 and September 2020, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome. 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 veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. 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. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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 Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be 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.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The appeal period before the Board stems from the Veteran’s August 9, 2010, claim for an increased rating for her service-connected left knee patellofemoral pain syndrome, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, such disability is rated as 10 percent disabling pursuant to DC 5010-5260. However, the Veteran contends that her left knee disability is more severe than as reflected by the currently assigned rating as such results in aching, sharp pain, that worsens with walking, standing, and bending. Thus, she claims that an increased rating is warranted. DC 5010 provides that traumatic arthritis is rated as degenerative arthritis under DC 5003. Pursuant to DC 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. 38 C.F.R. § 4.71a. For the purpose of rating disability from arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, DCs 5260 and 5261. DC 5260 provides for a zero percent rating where flexion of the leg is limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. DC 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where extension is limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. VA’s General Counsel has also stated that separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 2004). Turning to the evidence of record, at an October 2010 VA examination, the Veteran reported that her left knee disability were manifested by pain and swelling, which resulted in difficulty climbing more than 4 steps, walking more than 30 minutes, standing more than 15 minutes, and kneeling. However, she denied stiffness, weakness, instability, and flare-ups. Upon examination, the Veteran had active range of motion (ROM) of the left knee with flexion to 120 degrees and full extension after three repetitions. It was observed that such was limited by pain and swelling. Medial and lateral collateral ligaments and anterior and posterior ligaments were intact. There was no knee instability, and no loss of function with repetitive use. Ultimately, the examiner found that the Veteran’s left knee disability resulted only in mild functional limitation. Private treatment records dated January 2012 reflect the Veteran had a normal gait, was able to stand without difficulty ,and had normal strength and reflexes in her left lower extremity. In August 2014, she complained of left knee pain, and reported occasional popping and catching, as well as intermittent swelling every month or so. Pain can be a 6/10 in severity and is sharp and aching in nature and is worse with walking, standing, or bending. See The Orthopaedic Group, PC records. In June 2016, the Veteran was afforded another VA examination, at which time she reported pain, numbness, buckling, and popping in her left knee. However, she denied flare-ups, functional loss, or functional impairment related to such disability. Upon ROM testing of the left knee, the Veteran had full flexion to 140 degrees and full extension with pain on flexion that did not cause functional loss, to include following repetitive-use testing. Further, while the Veteran was examined immediately after repeated use over time, the examiner found that pain, weakness, fatigability, or incoordination did not significantly limit her functional ability of the left knee as a result of such use. There was no pain on weight-bearing or crepitus. The Veteran had full strength and no muscle atrophy. There was no evidence of recurrent subluxation or lateral instability, and her left knee was stable in all planes. March 2017 private treatment records reflect the Veteran complained of left knee pain. Testing revealed ROM from 0 to 135 degrees. See The Orthopaedic Group, PC records. At the April 2017 Board hearing, the Veteran testified that she experienced left knee pain when standing, bending, or stooping. Further, the Veteran stated she cannot do stairs, drive for a long period of time, feels instability in the joint, and that sometimes her knee buckles. In June 2017, the Veteran complained of swelling, pain, weakness, and popping in the left knee, however, ROM was within normal limits. See The Orthopaedic Group, PC records. At a March 2018 VA examination, it was noted that sensory testing of the Veteran’s left upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes was normal, and no neurologic impairment of the left lower extremity was noted. At an October 2019 VA examination, the Veteran reported left knee pain that worsened with squatting, climbing stairs, and prolonged walking/standing, and her knee was typically swollen by the end of the day. The Veteran denied flare-ups. ROM testing reflected left knee flexion to 105 degrees and full extension to zero degrees with pain. There was no evidence of crepitus, localized tenderness or pain on palpation of the joint or associated soft tissue, or pain on nonweight-bearing, but there was evidence of pain with passive ROM and on weight-bearing. The examiner further noted that there was no objective evidence of pain on non-weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or ROM after three repetitions. While the Veteran was not examined immediately after repeated use over time, the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss due to such factor. Although the examiner noted there was no additional functional loss following repeated use over time, she stated, “[f]ollowing further review of the Veteran’s records and giving consideration to their subjective complaints and objective exam findings, given my clinical knowledge and medical expertise, there remains no rational basis to make a notation regarding any additional losses of function or motion when it comes to repeated use over time.” The Veteran’s muscle strength and stability tests were normal. No ankylosis was noted and there was no evidence or history of recurrent subluxation, lateral instability, recurrent effusion, recurrent patellar subluxation or dislocation, or impairment of the tibia and/or fibula. In October 2020, after a review of the record, a VA examiner provided a retrospective opinion regarding the ROM findings from the October 2010 and June 2016 VA examinations in light of Correia, supra. At such time, he stated that ROM and physical examination of the right knee was not included at the October 2010 VA examination. Therefore, he opined that none of the requested parameters can be assessed in regard to the right knee. The examiner further observed that the Veteran was noted to have ROM of 0 degrees to 120 degrees after observed motion times three for the left knee. However, as the October 2010 VA examiner did not note the baseline ROM, it is unclear what the baseline ROM would have been. Therefore, assessments as to weight-bearing, non-weight-bearing and passive ROM cannot be made without speculation. The examiner further observed that such examination was conducted after the Veteran underwent arthroscopic surgery of the left knee in August 2010, and physician notes cite the Veteran’s satisfaction with surgery, but had residual pain, which was deemed appropriate. Thus, he found that it may be that the Veteran had not yet fully recovered and established a true baseline. As the baseline ROM is not available, any assessment of the other parameters would be purely speculative, as there is no starting point. Nonetheless, the examiner stated that, typically, passive motion equals active motion and weight-bearing equals non-weight-bearing ROM. One would anticipate pain or discomfort postoperatively, with all parameters requested. Thus, he stated that, if it were assumed that 120 degrees was baseline, then that would, more likely than not, apply to all parameters requested. The examiner further stated that, at the June 2016 VA examination, bilateral ROM was within normal limits, with negative loss on observed motion, with no impact of repetitive use or flares. Therefore, active and passive ROM would be equal, as would weight-bearing and non-weight-bearing, as 0 to 140 degrees, bilaterally. In December 2020, the October 2020 examiner offered an additional opinion as to the ROM findings for pain on passive motion and weight-bearing at the October 2019 VA examination. In this regard, he opined that, based on the Veteran’s reports, examination findings and a historical review, the initial ROM for the right knee was 0 to 115 degrees and it was 0 to 105 degrees for the left knee. Bilateral pain with weight-bearing was noted on the October 2019 examination. Thus, he opined, it is at least likely as not that the pain with passive ROM and weight-bearing would be the same as for initial ROM bilaterally. Further, there was no loss with observed repetitive use and flare-ups were denied. Upon review of the evidence of record, the Board finds the criteria for a rating in excess of 10 percent for the Veteran’s left knee disability are not met. Specifically, in order to warrant a rating in excess of 10 percent under DC 5260, flexion must be shown to be limited to 45 degrees. However, the evidence shows that the Veteran’s left knee flexion was limited to, at most 105 degrees, during the appeal period, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Thus, a rating in excess of 10 percent for such disability is not warranted under DC 5260. Furthermore, a higher or separate rating under DC 5261 for limitation of extension is not warranted. In this regard, in order to warrant a compensable rating under such DC, extension must be limited to at least 10 degrees. However, the evidence shows that the Veteran retained full extension of the left knee during the appeal period, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Thus, a higher or separate rating for such disability is not warranted under DC 5260. Additionally, the Board notes that the Veteran reported that her left knee frequently pops and buckles at the July 2016 VA examination and April 2017 hearing. As such, the Board has considered whether a higher or separate rating is warranted under DC 5257, which provides ratings for recurrent subluxation and lateral instability. VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). In this regard, the Court has held that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. English v. Wilkie, 30 Vet. App. 347 (2018). However, in the instant case, the Board finds that, while the Veteran is competent to describe feelings of popping and buckling, she is not competent as a lay person to diagnose recurrent subluxation and lateral instability. In this respect, there is no indication that she possesses the requisite knowledge to administer or interpret specialized testing that would reveal such conditions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Rather, the October 2010, June 2016, and October 2019 VA examiners, who are medical professionals that conducted appropriate testing, found there was no laxity or subluxation in the left knee, and joint stability testing was normal. Consequently, the Board affords greater weight to the VA examiners who found no instability in the left knee than the Veteran’s generalized lay statements regarding the presence of such impairment. See, e.g., Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). As such, higher and/or separate ratings are not warranted under DC 5257. The Board further observes that, while the record reflects diagnoses of degenerative joint disease (arthritis) and medial meniscal tear, which required arthroscopic surgery, it has previously been determined that such diagnoses are unrelated to the Veteran’s left knee patellofemoral syndrome. Thus, higher or separate ratings under DC 5003 or 5010 pertinent to arthritis and DC 5258 and 5259 pertinent to dislocation and removal of semilunar cartilage are not warranted. Finally, while the Veteran reported numbness at her left knee in June 2016, a March 2018 VA examination found no neurological impairment of the left lower extremity, and such subjective reports have not been related to her patellofemoral syndrome of the left knee. Consequently, a separate rating for neurological impairment is not warranted. Similarly, as there is no evidence of ankylosis, impairment of the tibia or fibula, or genu recurvatum, DCs 5256, 5262, and 5263 are not for application. In reaching the foregoing determinations, the Board acknowledges the Veteran’s sincerely held belief that her left knee symptoms are more severe than as reflected by the currently assigned rating. While the Board recognizes that she is competent to describe her symptomatology and resulting functional difficulties, she is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged her reported symptoms, and described the manifestations of her left knee disability in light of the rating criteria to be more persuasive than her own reports regarding the severity of such disability. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s left knee disability; however, the Board finds that her symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings for such disability is not warranted. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Based on the foregoing, the Board finds that a rating in excess of 10 percent for the Veteran’s left knee disability is not warranted. In reaching such determination, 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, such doctrine is inapplicable and her increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.