Citation Nr: 21025132 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-12 418 DATE: April 27, 2021 ORDER A rating for left knee iliotibial band syndrome in excess of 10 percent is denied. A rating for right knee iliotibial band syndrome in excess of 10 percent is denied. FINDING OF FACT The weight of the evidence of record shows that the Veteran’s bilateral knee iliotibial band syndrome has manifested as pain resulting in an abnormal range of motion including limitations in the flexion and extension of the legs but to a non-compensable degree, and fails to show any other compensable symptomatology. CONCLUSIONS OF LAW 1. The criteria for rating left iliotibial band syndrome in excess of 10 percent have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5260. 2. The criteria for rating right iliotibial band syndrome in excess of 10 percent have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from November 1990 to September 1991. In a January 2015 rating decision, the Regional Office (RO) granted service connection for bilateral knee disability initially evaluated as noncompensable as of March 21, 2014. The Veteran appealed. In March 2019, the Board remanded the claim for further development, to include obtaining a medical opinion addressing any deficiencies in a July 2014 VA examination and evaluating the more recent severity levels of the Veteran’s disability. In an April 2020 rating decision, the RO granted a rating at 10 percent per each knee, effectuated from March 21, 2014, the date of original claim for service connection. In July 2020, the Board remanded the claim for issuance of a supplemental statement of the case that was issued in August 2020 and the appeal returned to the Board. Of preliminary note, in its April 2020 decision, the Board also found that a total disability due to individual unemployability (TDIU) rating has been reasonably raised by the record and remanded the claim for further development. Although the RO has ultimately assigned a TDIU rating, the Veteran appealed the effective date of the award, which was processed under AMA (Appeals Modernization Act) and thus will be addressed in a separate decision. Meanwhile, the Board turns to rating the Veteran’s bilateral knee disability on review here. As reflected in a March 2015 Notice of Disagreement (NOD), the Veteran has been contending that his bilateral knee disability warrants a rating in excess of the 10 percent for each knee, which has been granted. As reflected in an October 2020 Appellate Brief, the Veteran’s contentions remain the same in substance. All knee disabilities are rated pursuant to schedule for ratings of musculoskeletal disabilities under diagnostic codes (DCs) from 5256 to 5263. These codes list specific rating criteria based on the symptomatology manifestations and the percentages corresponding to the specific severity levels. See 38 C.F.R. § 4.71a. Assigning specific diagnostic codes and particular percentages is ultimately based on whichever rating criteria most closely approximates the Veteran’s disability picture on review, to include diagnosis, anatomical localization, symptoms, and severity levels of impairment. See 38 C.F.R. § 4.7. To that end, the examinations by competent medical personnel are paramount. See 38 C.F.R. § 4.1. The Veteran’s bilateral iliotibial band syndrome is currently rated at 10 percent per each knee under DC 5260. The DC 5260 provides for ratings based on the range of motion (ROM) loss in the leg flexion. In rating musculoskeletal disabilities based on any ROM limitation, additional considerations are given to contributing factors such as fatigability, subluxation, instability, incoordination, and abnormal, weakened, or painful movement on both active and passive motion in both weight-bearing and non-weight-bearing, upon repetitive use, use over time, and during flare-ups. See 38 C.F.R. §§ 4.30, 4.40, 4.45, 4.59, 4.71a; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Of note, the presence of these factors does not warrant a separate or higher rating. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Rather, these factors must be expressed, insofar as practicable, in terms of degrees equivalent to any additional ROM limitations to be factored into the ratings. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Given the presence of these factors, when none of the compensable rating criteria is met under 38 C.F.R. § 4.71a, DCs 5256-5261, a 10 percent may be assigned under 38 C.F.R. § 4.59. Here, it was not shown that pain functionally limited the range of motion to such a level that a rating in excess of 10 percent based on flexion or a compensable rating based on limitation of extension would be warranted. A July 2014 VA examination report reflects that the Veteran’s right knee flexion was limited to 135 degrees without objective evidence of painful motion. Right knee extension was full without objective evidence of painful motion. Left knee flexion was limited to 130 degrees without objective evidence of painful motion. Left knee extension was full without objective evidence of painful motion. No additional ROM limitation upon repetitive use was noted. The examiner observed tenderness or pain to palpation bilaterally. Muscle strength was noted as normal. No clinical evidence or reported history of recurrent patellar subluxation or dislocation. No current or historic shin splints. No meniscal conditions or surgeries. No reported use of assistive devices. No evidence of arthritis. No other pertinent physical findings, complications, conditions, signs and/or symptoms. The examiner assessed overall severity of the Veteran’s bilateral knee condition as mild. A March 2017 private evaluation of the Veteran’s knees revealed very slight swelling bilaterally. There was no effusion present. He was able to fully extend his knees and flexed to approximately 140 degrees with pain about the lateral aspect of his knees. He was not overtly tender with palpation of the distal quadriceps, patella, patellar tendon and tibia tubercle. He has slight tenderness to palpation about medial joint spaces as well as the medial femoral condyles but has excruciating pain with palpation of the proximal fibula and associated iliotibial band. There is noted to be extreme fibrosis and tightness about both iliotibial bands. He has negative anterior drawer and Lachman’s testing. He has negative posterior drawer testing. He is stable stressing both the medial and lateral collateral ligaments. He has negative for Homan’s signs (calf pain at dorsiflexion of the foot). Apley’s and McMurray’s maneuvers (used to assess meniscus injuries) produce pain about the lateral aspect of his legs but no catching is noted. Overall, the symptomatology is consistent with iliotibial band syndrome. A July 2019 private disability benefits questionnaire (received from Dr. A.S., MD, in August 2019) reflects that the Veteran’s knee flexion is limited to 75 degrees and extension to 10 degrees. Upon considering the Veteran’s statements about flare-ups and additional factors, to include weakened movement, excess fatigability, pain on movement, disturbance of locomotion, interference with sitting and standing, the examiner opines that the Veteran’s ROM during flare-ups would produce limitation in flexion to 45 degrees and in extension to 15 degrees bilaterally. A February 2020 VA examination report reflects that the ROM in both knees is from 0 to 100 degrees and from 5 to 75 degrees during flare-ups. The report reflects that the Veteran notes knee pain several times a month. He also notes that stairs irritate him as does driving for long periods of time. During flare-ups, he has increased pain, stiffness, and less range of motion. He notes prolonged standing or walking will increase his pain. He reports that it is hard to walk upstairs, and hard to stand or walk for long periods due to pain, weakness, fatigue, and lack of endurance. The examiner observed tenderness on palpation bilaterally. Muscle strength was noted as normal. No clinical evidence or reported history of recurrent patellar subluxation or dislocation. No current or historic shin splints. No meniscal conditions or surgeries. No assistive devices. No evidence of arthritis. No other pertinent physical findings, complications, conditions, signs and/or symptoms. Further, the Veteran’s VA treatment records persuasively shows chronic bilateral knee pain, at times as severe as 7 out of 10, but do not show any specific ROM measurements. As such, based on the medical evidence of record viewed as a whole, the Board finds that the Veteran’s bilateral iliotibial band syndrome has manifested as pain resulting in an abnormal range of motion including limitations in the flexion and extension of his legs, which are evaluated respectively under DCs 5260 and 5261. Under DCs 5260 and 5261, normal ROM in the flexion is measured from 0 to 140 degrees and in the extension from 140 and to 0 degrees. See 38 C.F.R. § 4.71, Plate II. The lowest compensable rating is assigned when the leg extension is limited to 10 degrees or more and/or flexion is limited to 45 or less degrees. See 38 C.F.R. § 4.71a, DCs 5260-61. Extension limited to less than 10 degrees or flexion to more than 60 degrees are noncompensable. Id. Of note, the rating criteria based on the ROM limitations are successive, meaning that the criteria for lower percentage must be met before a higher percentage may be assigned. Here, the Veteran’s knees have been examined on a number of occasions during the course of his appeal. With the exception of the private examination in July 2019, his flexion has not been shown to be limited to less than 75 degrees and extension limited to no greater than 5 degrees, the compensable ratings based on these limitations are not warranted. The Board notes that the July 2019 evaluation report shows greater limitations. However, it is unclear from the July 2019 examination report whether the private examiner used goniometer as required by VA regulations. See 38 C.F.R. § 4.46. Moreover, in considering pain, the degree at which pain begins and/or ends does not necessarily translate into actual functional loss. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016), Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011). From the report, it is also unclear whether the private examiner had recorded the actual limitations in the flexion and extension or indicated where the pain begins and ends. Of further concern for the accuracy and reliability of the private report arises from the February 2020 examiner’s opinion specifically noting that the Veteran was guarded on range of motion testing and upon examination. Furthermore, every disability must be considered in relation to its history, whereas the private examiner noted that none of the Veteran’s records have been reviewed, apart from the VA disability award letter. See 38 C.F.R. § 4.1. In contrast, as reflected in the February 2020 examination report, the VA examiner had the most comprehensive review of the Veteran’s claims file and history. Upon further considering the most recent February 2020 VA report in light of the July 2014 VA and March 2017 private reports, the Board finds that these three reports are most consistent with each other and thus are most probative in this case. None, however, show the ROM limitations that are compensable, or that pain functionally limited range of motion such that a higher rating. In reaching this conclusion, the Board has also carefully considered the Veteran’s statements as to the chronic and at times severe knee pain, as well as the impact of his knee disability on his daily functioning, including difficulty in climbing stairs, and sitting, standing, walking, and driving for prolonged periods. The Board reiterates that the ratings based on pain alone, however excruciating it may be, without the evidence of factually ascertainable functional impairment that is compensable, does not warrant a rating in excess of 10 percent per each knee. Here, the VA examinations consistently showed that range of motion was not additionally limited by repetitive motion testing. Additionally, the Veteran was granted a TDIU rating comprehensively covering his service-connected disabilities affecting his employability. As noted, the effective date will be addressed in a separate decision. Here, the Board acknowledges the representative’s discussion proposing to rate the Veteran’s knees disability under DC 5257. However, this particular diagnostic code is applicable only when the evidence shows knee subluxation or instability, neither of which has been shown, suggested, or even alleged in this case. For example, the February 2020 and July 2014 VA reports and March 2017 private report, which the Board has found to be most probative in this case, specifically note no clinical signs or symptoms of subluxation or instability, while none were reported by the Veteran. As such, the Board has found that rating under DC 5257 is not appropriate in this case. The Board has also considered that the schedule for rating musculoskeletal disabilities has been amended, effective February 7, 2021, but none of the amendments pertain to the circumstances of this case. For example, the Veteran does not rely on any assistive devices on account of his knee disabilities, and he has not undergone surgery on either knee. Additionally, as noted, clinical testing has consistently found no evidence of instability or subluxation. Ultimately, the evidence of record shows that the Veteran has limitation in flexion and extension covered by DCs 5260 and 5261, which turned out non-compensable and remain unaffected by the recent amendments to the rating schedule. Upon considering all alternate diagnostic codes, the Board further has found none are applicable to the circumstances of this particular case, to include DC 5256 covering knee ankylosis, DCs 5258 and 5259 covering cartilage dysfunction, DC 5262 covering nonunion or malunion of tibia and fibula, and shin splints, and DC 5263 covering genu recurvatum (knee deformity), none of which have been shown, suggested, or alleged. No other material issues have been raised by the Veteran or his representative, nor reasonably raised by the evidence of record. Accordingly, the appeal is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, 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.