Citation Nr: 21024162 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 13-27 918 DATE: April 22, 2021 ORDER Entitlement to a rating in excess of 10 percent for the Veteran’s service-connected left knee patellofemoral syndrome is denied. Entitlement to a rating in excess of 10 percent for the Veteran’s service-connected right knee patellofemoral syndrome is denied. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran’s left knee patellofemoral syndrome was manifested by no worse than flexion of 45 degrees, normal extension, and there was no evidence of ankylosis, instability, subluxation, meniscus (semilunar cartilage) condition, a tibia or fibula impairment, or genu recurvation. 2. Throughout the entire appeal period, the Veteran’s right knee patellofemoral syndrome was manifested by no worse than flexion of 45 degrees, normal extension, and there was no evidence of ankylosis, instability, subluxation, meniscus (semilunar cartilage) condition, a tibia or fibula impairment, or genu recurvation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the Veteran’s service-connected left knee patellofemoral syndrome have not been met. See 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for a rating in excess of 10 percent for the Veteran’s service-connected right knee patellofemoral syndrome have not been met. See 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2007 to May 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In a December 2013 rating decision, the RO granted a 10 percent disability rating for each knee effective November 20, 2013. In September 2016, a Board hearing was held with the undersigned Veterans Law Judge. A transcript has been associated with the claims file. In an October 2020 rating decision, the RO granted a 10 percent disability rating for each knee effective May 17, 2011. The date service connection was granted. In January 2018, the Board remanded the above claims for a VA examination (VAX). In March 2020 the Board remanded the above claims again and instructed the RO to obtain another VAX. A new VAX that complied with the January 2018 remand directives that requested the VA medical examiner to provide a retrospective opinion concerning the range of motion (ROM) and functional loss, if possible. The Board also instructed the examiner to comply with Correia v. McDonald, 28 Vet. App. 158 (2016) and measured initial ROM, ROM during repeated use over time, and ROM during flare-ups. The October 2020 VAX and October 2020 medical opinion meets the above requirements. Thus, the above claims are ripe for adjudication. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Individual disabilities are assigned separate DCs. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. See 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. See 38 C.F.R. §§ 4.1, 4.2; see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. See 38 C.F.R. § 4.7. VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal exertion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. In that regard, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. See 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1 (2011). Although, pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Prior to February 7, 2021, the rating criteria are as follows: DC 5256 provides a 30 percent rating for ankylosis with favorable angle in full extension, or in slight flexion between 0 and 10 degrees. DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. DC 5258 provides a 20 percent rating for cartilage, semilunar dislocated with frequent episodes of locking, pain, and effusion into the joint. DC 5259 provides a 10 percent rating for symptomatic removal of the semilunar cartilage. DC 5260 addresses limitation of flexion of the leg and provides a noncompensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees. DC 5261 provides a noncompensable rating if extension is limited to 5 degrees and a 10 percent rating if extension is limited to 10 degrees. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. See 38 C.F.R. § 4.71, Plate II. DC 5262 addresses tibia and fibula impairment and provides a 10 percent rating for malunion with slight knee disability. A 20 percent rating for malunion with moderate knee disability. A 30 percent rating for malunion with marked knee disability. A 40 percent rating for nonunion of, with loose motion, requirement a brace. DC 5263 provides a 10 percent rating for genu recurvatum (acquired traumatic with weakness and insecurity in weight bearing objectively demonstrated). Effective February 7, 2021, DC 5257 provides: Under the new rating criteria, no changes were made to DC 5256, DC 5258-5261, or 5263. Changes were made, however to DC 5257 and DC 5262. For patellar instability: A 10 percent rating for 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. A 20 percent rating for 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 30 percent rating for 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. For recurrent subluxation or instability: A 10 percent rating for 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), crutches(es), walker) or brace for ambulation. A 20 percent rating for one of the following: a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive devices (e.g. cane(s), crutch(es), walker) for ambulation. b) Unrepaired or failed repair of complete ligament tear causing persistent instability and medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), or a walker) or bracing for ambulation. A 30 percent rating for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribe both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. DC 5262 now provides: For malunion, evaluate under DC 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. For medial tibial stress syndrome (MTSS) or shin splints: A noncompensable rating for treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating for treatment requiring no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating for treatment requiring no less than 12 consecutive months and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent rating for treatment requiring no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A 40 percent rating for nonunion of, with loose motion, requiring brace. 1. Entitlement to a rating in excess of 10 percent for the Veteran’s service-connected left knee patellofemoral syndrome. 2. Entitlement to a rating in excess of 10 percent for the Veteran’s service-connected right knee patellofemoral syndrome. In May 2011, the Veteran was afforded a VAX. He reported symptoms of weakness, stiffness, lack of endurance, fatigability, and pain. He denied swelling, heat, redness, giving way, locking, deformity, tenderness, drainage, effusion, subluxation, and dislocation. He reported flare-ups, which he described as being unable to run very far, stairs being hard, and he cannot walk long distances. He reported never being hospitalized or having any surgery. He reported not having any joint replacement. Bilaterally there was no signs of edema, instability abnormal movement, effusion, weakness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding of movement. Bilaterally there was no locking pain, genu recurvatum, crepitus, or ankylosis. Bilaterally initial ROM and repetitive ROM upon flexion was 0 to 140 degrees and upon extension was 0 degrees, which is within normal limits. Bilaterally the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Bilaterally the medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test and the medial/lateral meniscus stability test were all within normal limits. The Veteran was afforded another VAX in November 2013. He reported flare-ups, which he described as decreased ROM due to increased pain. Initial ROM bilaterally upon flexion was 130 degrees. For the right knee there was objective pain at 115 degrees. For the left knee there was objective pain at 125 degrees. Bilaterally extension was 0 degrees and there was no objective evidence of painful motion. Bilaterally ROM after repetitive use testing upon flexion was 130 degrees and extension was 0 degrees. There was no additional limitation in ROM of the knees following repetitive use testing. He had functional loss and/or functional impairment of the knees. Functional loss was described as less movement than normal and pain on movement. Bilaterally, he had tenderness or pain to palpation for the joint line or soft tissue. Bilaterally muscle strength was normal. Bilaterally, anterior, posterior, and medial/lateral stability testing were normal. There was no subluxation. He did not have nor has he ever had shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. He did not have any meniscal conditions or surgical procedures for a meniscal condition. He did not have a total knee joint replacement. He did not have arthroscopic or other knee surgery. He denied the use of any assistive devices. X-rays did not show patellar subluxation. His knees impacted his ability to work at the end of the day, but he reported that he has not had to call in sick. Portland VA treatment records from September 2016 show flexion at 90 degrees. During his September 2016 hearing the Veteran indicated that he was employed making glass coatings, paint that is applied to glass. VA treatment records from suggest that the Veteran is still employed at the same company. A VAX was conducted again in November 2018. At that time, the Veteran reported constant pain bilaterally, describing dull aches with lifting, carrying, stairs, or hills. The pain increased at the end of each workday. He denied instability and falls. He denied missing time at work or having any limits working full time making paint. Activities of daily living were intact. He reported playing with his 5-year-old son daily, however, he has pain in his knees. He reported that his knees click and pop but reported no locking or falls in the last year. The Veteran reported flare-ups that he described as decreased motion due to pain. He reported functional loss or functional impairment such as limited motion when bending. Bilaterally initial ROM upon flexion was 0 to 125 degrees and upon extension was 125 to 0 degrees. Bilaterally there was abnormal ROM that contributed to functional loss, which was described as decreased motion due to pain. Bilaterally there was pain noted upon flexion, pain on weight-bearing, objective evidence of localized tenderness or pain on palpation of the joint or associate with soft tissue, and objective evidence of crepitus. Bilaterally during flare-ups ROM upon flexion was 0 to 115 degrees and upon extension was 115 to 0 degrees. Bilaterally pain significantly limited functional ability with flare-ups. Bilaterally muscle strength was normal. There was no muscle atrophy, ankylosis, instability, and recurrent effusion. He has not had nor has he ever had recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. He has not nor has he ever had meniscus (semilunar cartilage) condition. He denied the use of any assistive devices. The VA medical examiner determined that his disability impacts his ability to perform occupational tasks. However, he reported that he can tolerate standing long hours full time and has not missed time at work. A June 2019 addendum opinion was provided in context to the November 2018 VAX. The VA examiner determined that with repetitive use over time ROM bilaterally upon flexion was 0 to 120 degrees and upon extension was 120 to 0 degrees. Bilaterally pain significantly limited functional ability with repeated use over a period of time. A VAX was conducted in October 2020. The Veteran reported flare-ups described as ROM getting worse making it harder to bend his knees. He reported getting shooting pain in his knees and being unable to do anything until the pain goes away. He described functional loss as not being able to run very long, going upstairs, or inclines. He denied the use of any assistive devices. Bilaterally initial ROM upon flexion was 0 to 90 degrees and upon extension was 90 to 0 degrees. Bilaterally abnormal ROM did not contribute to functional loss. Bilaterally there was pain on flexion and extension. Bilaterally there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue that was mild. Bilaterally there was no evidence of pain with weight bearing. Bilaterally there was objective evidence of crepitus. Bilaterally ROM on repetitive use upon flexion was 0 to 80 degrees and upon extension was 80 to 0 degrees. Bilaterally pain caused functional loss. Bilaterally ROM after repeated use over time upon flexion was 0 to 45 degrees and upon extension was 45 to 0 degrees. Bilaterally pain and incoordination significantly limited functional ability with repeated use over a period of time. Bilaterally ROM during flare-ups upon flexion was 0 to 45 degrees and upon extension was 45 to 0 degrees. Bilaterally pain and incoordination significantly limited functional ability with repeated use over a period of time. Bilaterally muscle strength was normal. There was no muscle atrophy, ankylosis, subluxation, instability, or recurrent effusion. Anterior, posterior, medial, and lateral stability testing was normal. He did not have nor has he ever had recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. He did not have nor has he ever had meniscus (semilunar cartilage) condition. The VA medical examiner determined that his disability affected his ability to perform occupational tasks. He described limitations in squatting, kneeling, and frequent sit to stand activities. Bilaterally, there was objective pain on non-weight bearing. Bilaterally passive ROM was the same as active ROM and pain on passive ROM was the same as active ROM. An October 2020 medical opinion determined that his condition has likely progressed as a 2016 MRI suggests chronic impairment. Based on the objective knee findings it is likely that he had flare-ups from 2011 to current with heavy use of the knee that resulted in loss of use. The examiner indicated that the Veteran would experience a 50 percent loss of flexion during period of flare-up, which was noted to be quantified by the 0 to 45 degrees loss of flexion as stated in the October 2020 VAX. After thorough consideration of the evidence of record, the Board concludes that disability ratings in excess of 10 percent for the left knee limitation of motion and the right knee limitation of motion is not warranted. The Veteran’s 10 percent ratings for the left and right knee had been awarded based on painful motion. The assignment of separate 10 percent rating based on limitation of motion under DC 5260 is prohibited. There is also no evidence that flexion of the right and/or left knee approached 30 degrees required for a higher disability rating at any point during the appeal period. Even during a flare-up and with repeated use over time, and in consideration of functional limitations, flexion was limited to no less than 45 degrees. Additionally, as the objective evidence of record shows that the Veteran had full extension and there is no evidence in the claims file of limitation of extension, there is no basis to assign separate ratings for loss of extension. Other potentially applicable diagnostic codes have also been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). However, there was no evidence of ankylosis, instability, subluxation, meniscus (semilunar cartilage) condition, a tibia or fibula impairment, or genu recurvation. See 38 C.F.R. § 4.71a, DCs 5256, 5257, 5258, 5259, 5262, 5263. The Board has considered staged ratings but determined that staged ratings are not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Again, an increased rating greater than 10 percent for left knee limitation of motion and an increased rating greater than 10 percent for right knee limitation of motion is not warranted. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. See 38 C.F.R. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Smith, 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.