Citation Nr: 21024858 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 14-25 110A DATE: April 26, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for right knee patellofemoral pain syndrome effective August 31, 2011, is denied. REMANDED Entitlement to an initial disability rating for degenerative joint and disc disease of the cervical spine (claimed as whip lash (neck)) in excess of 10 percent prior to July 30, 2015, is remanded. FINDING OF FACT During the entire period on appeal, the Veteran’s right knee patellofemoral pain syndrome manifested by painful motion but did not result in flexion of the leg limited to 30 degrees. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 10 percent for right knee patellofemoral pain syndrome effective August 31, 2011, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to November 1969. The Veteran died in July 2017, and the appellant is his surviving spouse. The appellant filed a request for substitution of the claimant in August 2017 for the claims pending before the Board. The Regional Office (RO) granted appellant’s request for substitution in an April 2018 correspondence pursuant to 38 U.S.C. § 5121A. Procedural History By way of background, the RO granted service connection for right knee patellofemoral pain syndrome with a noncompensable rating effective August 31, 2011 in a November 2012 rating decision. The RO granted service connection for degenerative joint and disc disease of the cervical spine assigning a 10 percent disability rating effective December 27, 2011, in a February 2013 rating decision. The Veteran timely appealed these claims among others. Of relevance, prior to Board review, in a June 2014 rating decision the RO assigned a 10 percent disability rating for right knee patellofemoral pain syndrome. In a March 2016 rating decision, the Veteran’s degenerative joint and disc disease of the cervical spine was increased to 20 percent disabling effective July 30, 2015. In a July 2018 Board decision, in pertinent part, the Board denied a higher initial rating for degenerative joint and disc disease of the cervical spine, rated as 10 percent disabling prior to July 30, 2015, and 20 percent thereafter; denied an initial rating in excess of 10 percent for right knee patellofemoral pain syndrome; and granted a separate rating of 10 percent, but no higher, for recurrent subluxation of the right knee. Thereafter, the Veteran’s surviving spouse appealed these claims, among others, to the United States Court of Appeals for Veterans’ Claims (CAVC or “the Court”). In a July 2019 order, the Court granted a Joint Motion for Partial Remand (JMPR) which vacated only the portions of the July 2018 Board decision that denied an initial rating of 10 percent prior to July 30, 2015, for the cervical spine disability, and the initial rating of 10 percent for the right knee disability. All other issues on appeal, to include the 20 percent rating from July 30, 2015, for the cervical spine disability, were dismissed. Those two issues returned to the Board for further consideration consistent with the terms of the JMPR. The Board remanded these claims in a January 2020 decision. Unfortunately, as will be discussed in more detail below, the Board finds remand is again necessary to ensure substantial compliance with the January 2020 remand directives regarding only the Veteran’s degenerative joint and disc disease of the cervical spine claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to an initial disability rating in excess of 10 percent for right knee patellofemoral pain syndrome effective August 31, 2011, is denied. The appellant contends the Veteran should have been assigned a higher rating for his right knee patellofemoral pain syndrome. The Board finds an initial disability rating in excess of 10 percent effective August 31, 2011, for his right knee disability is not warranted. As previously mentioned, the Veteran was granted service connection for right knee patellofemoral pain syndrome with a noncompensable rating effective August 31, 2011, under 38 C.F.R. § 4.71a, DC 5260, pertaining to limitation of flexion of the leg with a separate rating for recurrent subluxation of the right knee at 10 percent disabling effective August 31, 2011, under DC 5257. This appeal stems from the Veteran’s claim filed in August 2011. Thus, the Board will consider the severity of his right knee disability from August 2011 under 38 C.F.R. § 3.400. At the outset, the Board notes 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. Here, the Veteran died in July 2017. Thus, this decision only addresses the pre-amended criteria. Under DC 5260 provides flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. Under pre-amended DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. Also relevant to any discussion of knee disabilities are the remaining criteria under Diagnostic Codes 5256 through 5263. 38 C.F.R. § 4.71a. Under DC 5256, favorable ankylosis of the knee, in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. Under DC 5258, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. Under DC 5261, extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Under pre-amended DC 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating is warranted with nonunion of the tibia and fibula, with loose motion, requiring a brace. Under DC 5263, a 10 percent rating is warranted for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. The Board notes that the terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just.  38 C.F.R. § 4.6. Although a medical examiner’s use of descriptive terminology such as “mild” is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. At the outset, the Board notes the Veteran and his representative previously contended that he should have been granted service connection retroactive to his first service connection claim in 1969. The Board notes, however, a January 1970 rating decision denying service connection for a right knee disability became final when the Veteran did not submit an appeal or additional evidence in the year following the rating decision. As such, under 38 C.F.R. § 3.400, the Veteran’s effective date for benefits is limited to the date of his claim or in this case, August 31, 2011. Turning to the relevant evidence of record, the Veteran stated that he was unable to climb ladders or do anything that required “dependence on the knee” because it was painful and “undependable for support.” See April 2014 Statement in Support of Claim. In June 2014, a private provider stated that the Veteran’s right knee disability included “moderate” recurrent subluxation and/or lateral instability. See June 2014 non-government treatment records. In May 2017, the Veteran reported that he fell with “wobbly knees.” See May 2017 VA treatment records. Multiple buddy statements were submitted to the record discussing the Veteran’s right knee condition. The statements included that the Veteran had difficulty picking up something, lifting heavy things, squatting, and experienced decreased range of motion (ROM). The appellant described the Veteran experienced difficulty climbing the stairs at times, his right knee ached, and his right knee made popping noises. See January 2012 Correspondence. The appellant stated that the Veteran could not climb many stairs or ladders or walk on roofs. Id. The Veteran was afforded multiple VA examinations to determine the severity of his right knee disability. In December 2011, the Veteran reported weakness, stiffness, swelling, giving way, lack of endurance, locking, fatigability, tenderness, and pain. See December 2011 VA examination. He denied experiencing heat, redness, drainage, deformity, effusion, subluxation, and dislocation. Id. He described incapacitating episodes 10 to 15 times per year for two days. Id. A doctor was cited as having prescribed bedrest, but his phone number was unknown. Id. Functional impairment was reported to be an inability to climb ladders, multiple stairs, or walk on roofs. Id. Ankylosis was not found. Id. Right knee flexion ended at 140 degrees or greater. Id. The examiner noted objective evidence of painful motion for flexion beginning at 140 degrees or greater. Id. Right knee extension ended at 0 degrees or any degree of hyperextension. Id. There was no objective evidence of painful motion. Id. Repetitive use testing was able to be performed with the same results. Id. Functional loss and/or impairment was noted as pain on movement and crepitus. Id. Instability testing was performed with normal results. Id. The examiner found no evidence or history of bilateral recurrent patellar subluxation/dislocation. Id. The examiner found that the Veteran has not had any meniscal condition or surgical procedures. Id. The Veteran was afforded another VA examination in July 2015 during which the Veteran reported worsened right knee pain. See July 2015 VA examination. He stated that he had constant aching that was worse when climbing stairs, walking on an incline, or sitting for longer than 15 minutes. Id. Flare-ups were reported with worsened pain when climbing on any type of incline or sitting for longer than 15 minutes. Id. The examiner noted that the Veteran’s knee “gives way” if climbing a ladder causing loss of balance. Id. ROM testing revealed flexion of 0 to 140 degrees and extension of 140 to 0 degrees with repetitive use testing as well. Id. Pain with flexion was noted upon examination but did not result in or cause functional loss. Id. The examiner did not find evidence of pain with weight bearing. Id. No objective evidence of localized tenderness or pain on palpitation of the joint was indicated. Id. The examiner opined that pain, weakness, fatigability, and/or incoordination did not significantly limit functional ability with repeated use over time. Id. There was no objective evidence of crepitus, atrophy, or ankylosis. Id. A history of recurrent subluxation, lateral instability, or recurrent effusion was not noted. Id. Joint stability testing was performed with normal results. Id. The Veteran did not have a meniscus condition or use an assistive device. Id. A retrospective opinion was obtained in January 2021 wherein a VA examiner opined that because the Veteran had normal ROM for the right knee without abnormal gait, the Veteran would not have any restriction in sedentary or non-sedentary employment involving prolonged standing, prolonged walking, carrying, and lifting/bending. See January 2021 VA addendum. Another retrospective opinion was obtained in February 2021 wherein a VA examiner opined that the Veteran experienced right knee flare-ups occurring monthly for an hour. See February 2021 VA addendum. During flare-ups, flexion remained at 140 degrees. Id. The examiner noted the Veteran’s August 2015 DBQ showing full ROM for the right knee without instability. Id. The Board finds that the VA examinations and addendums of record, when considered together, are adequate to determine the nature, extent, and severity of the Veteran’s right knee disability throughout the period on appeal. The requirements of DeLuca, Correia, and Sharp were all addressed by the examiners and the Veteran’s own descriptions of his limitations were taken into account in determining functional impact and additional loss in terms of range of motion with repetitive use over time. Flare-ups were noted with symptoms of increased pain depending on use with ROM loss considered. Further, while the Board recognizes portions of prior VA examinations required further development through Board remand directives, the examinations still carry probative value regarding the testing completed and the reports of relevant symptoms. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). When taken as a whole, the VA examinations and addendums, treatment records, and lay statements present a disability picture based upon which the Board is able to render a decision regarding an increased rating. Based on the lay and medical evidence of record, the Veteran’s right knee patellofemoral pain syndrome does not warrant a rating in excess of 10 percent under DC 5260 during the entire period on appeal. Indeed, throughout the entire period on appeal the Veteran’s flexion ROM was 140 degrees even with repetitive use testing and during flare-ups as determined in the February 2021 VA retrospective opinion. The Board notes the February 2021 VA retrospective opinion referenced the August 2015 DBQ ROMs but not the December 2011 DBQ ROMs. Upon review, however, the ROM in both examinations was the same even with repetitive use. The RO granted a 10 percent disability rating based on painful motion of the leg at the knee under 38 C.F.R. § 4.59. The medical and lay evidence of record consistently and credibly conveys the Veteran experienced pain in his right knee. As such, the Board finds the Veteran’s symptoms more nearly approximate the rating criteria for a 10 percent disability rating for painful motion of the knee. The evidentiary record does not reasonably raise the prospect that the Veteran’s disability was not and could not be adequately rated under the rating schedule during the appeal period. In so finding, the Board also concludes that a higher disability rating under DC 5260 is not warranted. Indeed, the medical evidence of record and all the VA examinations have found flexion ROM to be 140 degrees even with repetitive use testing and during flare-ups. A 20 percent disability rating is only warranted when flexion ROM is limited to 30 degrees. The record lacks any mention of right knee flexion limited to 30 degrees. The Board considered the multiple lay statements of record referencing the Veteran experienced difficulty climbing stairs, ladders, and picking things up off the ground. Flexion ROM testing, however, has consistently remained at a noncompensable degree. The Board finds the Veteran’s limitations were compensated for through the 10 percent disability rating already assigned during the period on appeal. The Board has also considered whether an increased rating is warranted under DC 5257 for recurrent subluxation or lateral instability. The Veteran was assigned a separate 10 percent disability rating for slight instability under DC 5257. The Veteran competently and credibly reported falling with “wobbly knees” twice and that his knee was unstable while climbing ladders. These symptoms are appropriately compensated for by the 10 percent disability rating under DC 5257. The record reflects a June 2014 private provider’s opinion that the Veteran experienced “moderate” recurrent subluxation and/or lateral instability. The VA examinations of record, however, conducted instability testing, all of which produced normal results indicating the Veteran did not experience instability. While the June 2014 private provider classified the Veteran’s instability as “moderate,” his opinion lacked any reference to testing or a rationale in support thereof. As such, the Board assigns more probative value to the VA examinations of record. Further, although the use of the term “mild,” “moderate,” “moderately severe,” and “severe” by a VA examiner and other providers is evidence to be considered by the Board, it is not dispositive of the issue. See 38 C.F.R. §§ 4.2, 4.6. Based upon a review of the medical and lay evidence of record, the Board finds the 2014 private provider’s classification of “moderate instability” to be unsupported. The Veteran’s statements of record regarding instability have been deemed credible despite the VA examinations of record finding normal instability testing. Considering the VA examinations normal instability testing results, however, the Board finds a 10 percent disability rating for slight recurrent subluxation and/or lateral instability is warranted, but no higher. Other potential diagnostic codes are inapplicable here because there is no medical evidence in support. The Veteran’s right knee was not ankylosed (i.e., frozen), however, the Board acknowledges consideration must still be given to whether he is functionally ankylosed in the right knee. Cf. Chavis v. McDonough, U.S. Court of Appeals for Vet. Claims No. 18-2928 (decided April 16, 2021). Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Here, the Veteran reported increased pain during flare-ups and restricted activity with limited ROM. The Board finds the evidence of record, however, does not support that the Veteran’s right knee was immobile even during flare-ups considering he reported being able to walk and climb stairs, albeit with difficulty and limitations. As such, DC 5256 is not for application. The knee disability did not affect the tibia, fibula, or genu recurvatum; therefore, DCs 5262 and 5263 are not for application. DC 5259 is not applicable as the Veteran did not have semilunar cartilage removed in the right knee. DC 5258 is not applicable because while the Veteran reported experiencing locking during the December 2011 VA examination, neither effusion nor dislocated semilunar cartilage was found. Regarding DC 5261, a higher disability rating would not be achieved through limitation of extension as the most limited ROM extension was 140 degrees which is noncompensable under DC 5261. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial rating in excess of 10 percent for right knee patellofemoral pain syndrome under DC 5260 and recurrent subluxation of the right knee under DC 5257 during the entire period on appeal, to include consideration of the remaining separate ratings. 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. REASONS FOR REMAND 1. Entitlement to an initial disability rating for degenerative joint and disc disease of the cervical spine (claimed as whip lash (neck)) in excess of 10 percent prior to July 30, 2015, is remanded. The appellant contends the Veteran’s cervical spine disability should have been assigned a higher disability rating due to symptom severity. The Board finds the evidence of record is insufficient to resolve the appellant’s claim. As mentioned above, the Board previously remanded this claim in January 2020 in order to obtain a retrospective VA opinion per the parties’ July 2019 JMPR. Specifically, the Board directed a VA opinion be obtained regarding the degree of additional functional loss the Veteran experienced during flare-ups of his degenerative joint and disc disease of the cervical spine prior to July 30, 2015. Two addendum opinions were obtained in January 2021 and February 2021. In both addendum opinions, the examiner relied upon the Veteran’s November 2016 Disability Benefits Questionnaire (DBQ) for the cervical spine when opining as to the ROM loss during flare-ups prior to July 30, 2015. While it is certainly conceivable that these records may be relevant to the severity of the Veteran’s cervical spine disability during the time period prior to July 30, 2015, the examiner, in contrast, did not discuss earlier examinations, such as the January 2013 VA examination and July 2015 VA examination, which indicate ROMs that differ from the November 2016 findings. The examiner also did not explain or otherwise clarify that the opinion rendered was specific to the severity of the Veteran’s condition for the time requested, that is, for the time period prior to July 30, 2015. As such, the examiner’s opinion was wholly unresponsive and the claim is remanded to obtain another retrospective medical opinion. The matters are REMANDED for the following action: 1. Return the entire claims file and this remand to the February 2021 VA examiner, if available, or to another appropriate examiner for review. The examiner should render an opinion, including rationale, as to the degree of additional functional loss the Veteran experienced during flare-ups of his degenerative joint and disc disease of the cervical spine prior to July 30, 2015. In so opining, the examiner should consider any medical records deemed relevant to the severity of the Veteran’s cervical spine disability prior to July 30, 2015, to include (but not necessarily limited to) past VA examinations conducted in January 2013 and July 2015. The examiner should discuss any additional functional impairment that occurred during flare-ups prior to July 30, 2015, including any additional limitation of motion or range of motion loss. To the extent possible, the examiner should also address the frequency, duration, characteristics, and severity of flare-ups based on the medical records and/or lay statements regarding the history of the Veteran’s disability prior to July 30, 2015. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After the above development, and any other development deemed necessary, readjudicate the claims. Shereen M. Marcus 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.