Citation Nr: 21024939 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-38 812 DATE: April 27, 2021 ORDER Entitlement to a 30 percent evaluation for patellofemoral pain syndrome of the right knee is granted. FINDING OF FACT The Veteran’s right knee disability is manifested by additional functional loss due to flare-ups that result in weakness, limited motion, and additional pain. CONCLUSION OF LAW The criteria for a 30 percent rating for a right knee disability have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5259-5260 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the Air Force from October 1987 to September 2005. This matter is on appeal to the Board of Veterans’ Appeals (the Board) from July 2015 and January 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran was scheduled for a videoconference hearing. He failed to report for his hearing. The hearing request is deemed withdrawn because he failed to report for his scheduled hearing and no request for postponement was received. See 38 C.F.R. §§ 20.703, 20.704. The Board remanded the Veteran’s claim in October 2018 for additional development. He underwent a new VA examination for the right knee in October 2019. Therefore, there was substantial compliance with the October 2018 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2020, the issues of entitlement to service connection for a heart disability, hypertension, sleep apnea, and fibromyalgia were remanded by the Board. The Agency of Original Jurisdiction (AOJ) is still working on these issues, and they have not been recertified to the Board. As such, the Board will not address these claims at this time, but they will be the subject of a subsequent Board decision. The Board notes that since the issuance of the July 2020 SSOC additional records were added to the claims file. Middle Tennessee Endodontic records were received in November 2020. These records were not pertinent to the issue discussed below. Therefore, the Board has concluded that it may proceed with appellate consideration of the Veteran’s claim for an evaluation in excess of 10 percent for his patellofemoral pain syndrome of the right knee without prejudice to the Veteran. See 38 C.F.R. § 19.31. Applicable Law and Regulations Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentages 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 military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran's right knee disability is rated under DCs 5259-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that semilunar cartilage removal (Diagnostic Code 5259) was rated under the criteria for limitation of leg flexion (Diagnostic Code 5260). Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order. If extension of the knee is limited to 15 degrees a 20 percent rating is in order. If extension of the knee is limited to 20 degrees a 30 percent rating is in order. The VA recently amended the criteria for rating knee instability. 85 Fed. Reg. 76,453, 76,463 (November 30, 2020). These amendments apply only to claims pending as of February 7, 2021. Because the Veteran's increased rating claim was pending on that date, the Board will consider both versions and, for the period since the effective date of the amendment, apply the criteria most favorable to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). But the Board may not apply the amended version of regulation prior to its effective date. See Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003). Prior to February 7, 2021, DC 5257 provides a 10 percent rating 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. 38 C.F.R. § 4.71a. The Board observes that the words “slight,” “moderate,” and “severe” as used in the various DCs are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. After February 7, 2021, for recurrent subluxation or instability, a 10 percent rating is warranted when there is a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted when there is (1) 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 (2) an 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 30 percent rating is warranted when there is an 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. For patellar instability, a 10 percent rating is warranted when there is 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 is warranted when there is 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 is warranted when there is 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. Under DC 5258, a 20 percent rating is warranted for dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint. DC 5259 provides a 10 percent evaluation for symptomatic removal of semilunar cartilage. Separate evaluations may be assigned for limitation of flexion and extension of the same joint. See VAOPGCPREC 09-04 (September 17, 2004). Specifically, when a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. The normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.7, Plate II. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a (General Formula, Note 1). Factual Background The Veteran filed a claim for an increased rating for his right knee disability that was received by VA in July 2015. A June 2015 VA examination diagnosed a right knee strain, patellar or quadricep tendon rupture, and patellar dislocation. Initial range of motion testing for the right knee found flexion of zero to 110 degree and extension of 110 to zero degrees. There was no evidence of pain with weight bearing, localized tenderness or pain on palpation, or crepitus. Initial range of motion testing for the left knee showed full range of motion with flexion of zero to 140 degrees and extension of 140 to zero degrees. He could perform repetitive use testing with at least three repetitions and had no additional loss of function bilaterally. The right knee was examined immediately after repetitive use over time. The examiner opined this examination was neither medically consistent nor inconsistent with the Veteran’s statements of functional loss during a flare-up. The examiner was unable to say without mere speculation if pain, weakness, fatigability, or incoordination would significantly limit his functional ability. The examiner indicated the severity of a flare-up or repeated use variation was extremely variable and dependent on physical activities as well as environmental factors. There were a wide range of potential factors that made predicting possible changes mere speculation. The left knee was examined immediately after repetitive use over time and not found functionally limited by pain, weakness, fatigability, or incoordination. The Veteran retained five out of five strength bilaterally. There was no evidence of ankylosis, history of recurrent subluxation, history of lateral instability, history of recurrent effusion, or joint instability. The examiner opined the right knee condition had no impact on his functional capability. In October 2015, the Veteran underwent another VA examination for the right knee. He was diagnosed with a meniscal tear of the right knee. Initial range of motion testing of both knees found he had a flexion of zero to 140 degrees and extension of 140 degrees to zero. Pain was noted during the examination of the right knee but did not result in functional loss. There was also evidence of pain with weight bearing and crepitus of the right knee. The Veteran’s left knee had no pain during examination, pain with weight bearing, localized tenderness or pain on palpation, or crepitus. He performed repetitive use testing with at least three repetitions and no additional loss of function bilaterally. He was not examined immediately after repetitive use over time or during a flare-up. The examiner opined the examination of the right knee was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. He was not functionally limited due to pain, weakness, or incoordination. The examiner opined the examination of the left knee was neither medically consistent with nor inconsistent with the Veteran’s statements describing functional loss. He was not functionally limited due to pain, weakness, or incoordination. The right knee exhibited four out of five strength in the forward flexion and the left five out of five strength. There was no evidence of ankylosis, history of recurrent subluxation, history of lateral instability, history of recurrent effusion, or joint instability. The Veteran regularly used a knee brace. The examiner opined the right knee condition impacted his functional ability. He had increased knee pain with prolonged sitting at work. The Veteran’s treatment records showed reports in November 2015 of increased problems with the right knee while walking the dog. He requested a knee brace. He reported knee pain of eight out of 10. Examination found he drove 50 miles for the appointment and ambulated fine from the parking lot to the office. There was no evidence of clubbing, cyanosis, or edema in his extremities. His doctors noted that a hinged knee brace had been tried, therefore, a combined instability (CI) knee brace would be ordered. The Veteran received a knee brace fitting in February 2016. In June 2016, the Veteran underwent a VA examination of the knee. He was diagnosed with patellofemoral pain syndrome of the right knee. The Veteran reported continued daily pain, swelling at times, locking, and that his knee gave way. He had flare-ups with reduced range of motion. Initial range of motion testing for the right knee found flexion of zero to 120 degrees and extension of 120 to zero degrees. There was evidence of pain with weight bearing, tenderness of the joint line, and crepitus present in the right knee. He was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion of the right knee. The Veteran was not examined immediately after repetitive use over time or during a flare-up. The examination was found medically consistent with the Veteran’s description of functional loss due to pain, fatigue, and lack of endurance. The examiner indicated she was not able to describe or quantify the functional loss in terms of range of motion because the Veteran was not examined immediately after repetitive use over time or during a flare-up. However, reported pain supported a finding that he would likely have functional loss with repeated use over time and during a flare-up. The Veteran exhibited five out of five strength bilaterally. There was no evidence of ankylosis, history of recurrent subluxation, history of lateral instability, history of recurrent effusion, or joint instability of the right knee. He regularly used a knee brace. The June 2016 examiner opined the Veteran’s right knee condition impacted his functional ability. He was precluded from gainful physical occupations particularly requiring standing, lifting, loading, or climbing. He was not precluded from sedentary occupations. The Veteran’s treatment records showed follow-up imaging of the right knee in August 2016. He had minimal spurring at the patella consistent with early degenerative change. There was no evidence of acute fracture or malalignment, significant knee effusion, or acute soft tissue findings. Physical examination found crepitus in the right knee, but he retained normal range of motion. During a routine follow-up appointment in January 2018, the Veteran continued to complain of knee pain. However, overall, he had been well. From July 2018 to May 2019, physical examination found his extremities had full range of motion and he exhibited a normal gait. There was no evidence of clubbing, cyanosis, or edema. In an October 2019 VA examination he was diagnosed with right knee patellofemoral pain syndrome. He denied flare-ups but reported functional loss with repeated use over time. He reported a sharp, shooting pain through the knee like a needle when he was sitting. Initial range of motion testing of the right knee found flexion of zero to 130 degrees and extension of 130 to zero degrees. Pain caused functional loss in his flexion. He also had pain with weight bearing and crepitus present in the right knee. Initial range of motion testing of the left knee found flexion of zero to 130 degrees and extension of 130 to zero degrees. The Veteran exhibited no pain during the examination, pain with weight bearing, localized tenderness or pain on palpation, or crepitus of the left knee. He could perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion bilaterally. The examination was found neither medically consistent with nor inconsistent with the Veteran’s description of functional loss with repetitive use over time. Weakness significantly limited his functional ability with repeated use over time on the right side. The examiner estimated his flexion was zero to 130 degrees and his extension was 130 to zero degrees with repetitive use over time. The right knee interfered with his ability to stand. However, he retained five out of five strength bilaterally. There was no evidence of ankylosis, history of recurrent subluxation, history of lateral instability, history of recurrent effusion, or joint instability bilaterally. The right knee interfered with his ability to stand. The examiner opined the Veteran’s knee condition impacted his functional ability. He had pain and weakness with prolonged walking. Additionally, there was evidence of pain with passive range of motion testing but no pain with non-weight bearing. Based on the reported symptomatology of the Veteran’s limitation of motion and reported functional impairment and flare-ups at his VA examinations, the Board finds that when affording the Veteran the benefit of the doubt, that increased 30 percent disability rating is warranted for the Veteran’s service-connected right knee disability. The Board notes that for a 30 percent evaluation, the Veteran must demonstrate flexion limited to 15 degrees or extension must be limited to 20 degrees. On the October 2019 VA examination, flexion limited to 15 degrees was not demonstrated as right knee flexion was from 0 to 130 degrees. However, on the October 2019 VA examination the Veteran also reported that weakness significantly limited his functional ability with repeated use over time on the right side as he had functional loss with repeated use over time. The Veteran also reported a sharp, shooting pain through the knee like a needle when he was sitting while pain caused functional loss in his flexion and he also had pain with weight bearing and crepitus present in the right knee. The examiner noted that the Veteran’s right knee interfered with his ability to stand and impacted his functional ability as he had pain and weakness with prolonged walking. Additionally, the June 2016 VA examiner also noted that the Veteran’s reported pain supported a finding that he would likely have functional loss with repeated use over time and during a flare-up. Based on the reported symptomatology of the Veteran’s reported functional impairment at his October 2019 VA examination, the Board finds that when affording the Veteran the benefit of the doubt that an increased 30 percent rating is warranted for the Veteran’s right knee disability. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. However, while the Board finds that the Veteran’s right knee disability warrants a higher 30 percent disability rating, the evidence does not demonstrate that a rating is warranted for an evaluation in excess of 30 percent for the right knee disability. The Board notes that the maximum rating for limited flexion of the knee does not exceed 30 percent. Hence, Diagnostic Code 5260 is inapplicable. As noted above, to warrant an increased rating for the knee disability in excess of 30 percent, the Veteran would have to be found to have extension limited to 30 degrees. The evidence reflects that the Veteran had full extension of the right knee without objective evidence of painful motion. There is no indication that the Veteran ever had extension of the right knee limited to 30 degrees or more, even with consideration of the DeLuca factors, to warrant a disability rating in excess of 30 percent under Diagnostic Code 5261. Additionally, there is no showing of instability even upon specific instability testing as all VA examinations conducted specifically indicated that the Veteran had no history of recurrent subluxation or lateral instability. Accordingly, as the medical findings showed no laxity and no objective evidence of subluxation, the Board concludes that a separate disability rating under Diagnostic Code 5257 is not warranted for the right knee under either the old or revised criteria. The Board has also considered other diagnostic codes to determine if higher evaluations are warranted. However, evaluation of the relevant evidence of record reflects that the record contains no evidence of ankylosis, malunion or nonunion of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Notably, Diagnostic Code 5258, Cartilage, Semilunar, Dislocated, provides a 20 percent rating for frequent episodes of locking, pain, and effusion. 38 C.F.R. § 4.71a. Diagnostic Code 5259, Cartilage, Semilunar, Removal, symptomatic, provides for a 10 percent rating. 38 C.F.R. § 4.71a (2020). The Board finds that a separate or higher rating is not warranted under Diagnostic Codes 5258 or 5259. As the Veteran has already been awarded a 30 percent rating in the right knee based, in part, on pain and limitation of motion, a separate disability rating under either Diagnostic Codes 5258 and 5259 would violate 38 C.F.R. § 4.14 and the rule against pyramiding as those codes already contemplate such manifestation. Thus, for this reason, separate ratings under these codes would again violate 4.14. Accordingly, the Board finds that a 30 percent rating, but no higher, for the right knee disability is warranted. James A. DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Byers 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.