Citation Nr: 21025853 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-28 706 DATE: April 29, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome with degenerative joint disease is denied. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome with degenerative joint disease is denied. Entitlement to a rating in excess of 20 percent for right knee instability is denied. FINDINGS OF FACT 1. The evidence of record shows that the Veteran’s bilateral knee patellofemoral syndrome with degenerative joint disease was not manifested by limitation of motion, flexion, or extension so as to warrant a higher evaluation. 2. The evidence of record shows that the Veteran’s right knee instability was marked as no more than moderate recurrent subluxation or lateral instability so as to warrant a higher evaluation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for bilateral knee patellofemoral syndrome with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003-5260, 5261. 2. The criteria for a rating in excess of 20 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1998 to September 2007, from October 2008 to September 2009, from March 2012 to November 2013, and from July 2017 to November 2018, with additional duty in the Navy Reserve. The Board of Veterans’ Appeals (Board) remanded this matter in November 2016, October 2019, and August 2020 for further evidentiary development. The case has returned to the Board for appellate review. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome with degenerative joint disease 2. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome with degenerative joint disease 3. Entitlement to a rating in excess of 20 percent for right knee instability Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.97. During an appeal of a disability rating, either from an initial rating assigned on granting of service connection or on appeal of a subsequent denial of an increased rating, it may be found that there are varying and distinct levels of disability impairment severity during an appeal. So, staged ratings (different disability ratings during various time periods) are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). The Board must also consider whether VA examiners have elicited information concerning the “severity, frequency, duration, or functional loss manifestations” of such flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The United States Court of Appeals for Veterans Claims (Court) also has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. The Veteran is seeking higher ratings for his bilateral knee disability. The Veteran is service connected for bilateral knee patellofemoral syndrome with degenerative joint disease, a 10 percent rating was assigned for each knee from September 4, 2009 under Diagnostic Code 5260. This rating was assigned for painful, noncompensable limitation of motion. A 10 percent rating was continued for each knee from December 14, 2020 under Diagnostic Code 5003-5260. A separate 20 percent rating was assigned for right knee instability, effective May 12, 2014. As previously mentioned, the Veteran’s bilateral knee disability is currently evaluated as 10 percent for each knee under Diagnostic Code 5003-5260. 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 rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. The Board notes that revisions to the rating schedule applicable to the musculoskeletal system went into effect on February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board may consider these changes without remand to the Agency of Original Jurisdiction (AOJ) for consideration in the first instance. See 38 C.F.R. § 20.904(d)(2). The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). Thus, the changes to the rating schedule that went into effect on February 7, 2021 do not apply prior to that date. See id.; 85 Fed. Reg. 76453. The Board notes that, in relevant part, the revisions affected Diagnostic Codes 5257 and 5262. Under Diagnostic Code 5003, degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5256, which evaluates ankylosis of the knee, provides for a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned when there is ankylosis of the knee in flexion between 10 and 20 degrees. A 50 percent rating is assigned when there is ankylosis of the knee in flexion between 20 and 45 degrees. A 60 percent rating is assigned for extremely unfavorable, in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a. Under the former rating criteria for Diagnostic Code 5257, which evaluates recurrent subluxation or lateral instability of a knee, a 10 percent rating is assigned for slight impairment; a 20 percent rating for moderate impairment; and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a. The terms "mild," "moderate," and "severe" are not defined in the 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. The revised criteria for Diagnostic Code 5257, effective February 7, 2021, evaluates other impairment of the knee, to include recurrent subluxation or instability and patellar instability. Regarding recurrent subluxation or instability, a 10 percent rating is assigned 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), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned for either (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 (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is assigned for 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. Regarding patellar instability, under the revised criteria for Diagnostic Code 5257, a 10 percent rating is assigned 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 is assigned 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 disability rating is assigned 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 a walker. Note (1) provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. See 38 C.F.R. §4.71a, Diagnostic Code 5257, Note (1). Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See 38C.F.R. §4.71a, Diagnostic Code 5257, Note (2). Diagnostic Code 5258 provides for a 20 percent rating when semilunar cartilage is dislocated with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides for a 10 percent rating when semilunar cartilage has been removed but remains symptomatic. 38 C.F.R. § 4.71a. Diagnostic Codes 5260 and 5261 pertain to limitation of knee motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. In this regard, a normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. A limitation of leg flexion allows for a 10 percent evaluation when it is limited to 45 degrees, a 20 percent evaluation when flexion is limited to 30 degrees, and a 30 percent evaluation when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A limitation of leg extension is assigned a 10 percent evaluation when it is limited to 10 degrees, a 20 percent evaluation when extension is limited to 15 degrees, a 30 percent evaluation when extension is limited to 20 degrees, a 40 percent evaluation when extension is limited to 30 degrees, and a 50 percent evaluation when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under the former rating criteria for Diagnostic Code 5262, which evaluates impairment of the tibia and fibula, a 10 percent rating is assigned for slight knee or ankle disability, a 20 percent rating for moderate knee or ankle disability, a 30 percent rating for malunion with marked knee or ankle disability, and a 40 percent rating for nonunion with loose motion, requiring a brace. 38 C.F.R. § 4.71a. The revised criteria for Diagnostic Code 5262, effective February 7, 2021, evaluates impairment of the tibia and fibula. A noncompensable rating is assigned for medial tibial stress syndrome (MTSS) or shin splints requiring treatment for less than 12 consecutive months of one of both lower extremities. A 10 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either show orthotics or other conservative treatment of one or both lower extremities. A 20 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment for one lower extremity. A 30 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment of both lower extremities. A 40 percent rating is assigned for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula must be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Under Diagnostic Code 5263, acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing, is rated at 10 percent. 38 C.F.R. § 4.71a. Separate ratings for knee disabilities may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04 (2004); 69 Fed. Reg. 59,990 (2004); 38 C.F.R. § 4.14. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The United States Court of Appeals for Veterans Claims (Court) has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Turning to the record, the Veteran was afforded VA examinations in April 2010, May 2014, December 2020, and an addendum VA opinion in February 2021. The Board found the April 2010 and May 2014 examinations to be inadequate for rating purposes, so the Board did not rely on these examinations when making this present decision, but these examinations provide the Board with a general notion of the Veteran’s bilateral knee disability throughout the course of this appeal. At the April 2010 VA examination, the Veteran reported knee pain and stiffness. The examiner noted a normal gait. Active range of motion (ROM) testing revealed right knee flexion to 120 degrees and no limitation of extension. There was no pain, fatigue, weakness, lack of endurance or additional loss of motion after three repetitive cycles, and crepitus was noted with repetition. Active ROM testing revealed left knee flexion to 105 degrees and no limitation of extension with no pain, fatigue, weakness, lack of endurance or additional loss of motion after three repetitive cycles lots of popping, and crepitus was noted without pain. An April 2010 rating decision issued by the AOJ granted service connection for bilateral knee patellofemoral syndrome with degenerative joint disease, a noncompensable rating was assigned for each knee, effective September 4, 2009. At the May 2014 VA examination, the Veteran reported increased instability and functional limitations, he walks with an antalgic gait with increased pain. The Veteran reported flare-ups. Initial ROM testing revealed right knee flexion to 140 or greater with painful motion beginning at 90 degrees. Left knee flexion ended at 140 degrees or greater with painful motion beginning at 120 degrees. There was no limitation of extension for either knee. The Veteran was able to perform repetitive-use testing with three repetitions and no additional limitation in ROM following repetitive-use testing. The examiner noted functional loss, pain on movement bilaterally, swelling, instability of station, disturbance of locomotion and problems with prolonged weight-bearing of the right knee. The functional impact was described as difficulty with prolonged standing and walking, inability to climb ladders and play with his children. The May 2014 examiner noted that it is not possible without resorting to mere speculation to estimate either loss of ROM or describe functional loss, because there is no empirical basis for making such a determination without directly observing function under these conditions. Degenerative or traumatic arthritis was not found at this examination. A May 2014 rating decision issued by the AOJ increased the rating for bilateral knee patellofemoral syndrome with degenerative joint disease from noncompensable to 10 percent, effective May 12, 2014. The May 2014 rating decision also granted the separate 20 percent rating for right knee instability, effective May 12, 2014. The Veteran disagreed with the 10 percent rating as well as the effective date of the 10 percent rating. A November 2016 Board decision granted entitlement to an earlier effective date of September 4, 2009 for the 10 percent rating for the Veteran’s bilateral knee patellofemoral syndrome with degenerative joint disease. The November 2016 Board remand also remanded the claim of entitlement to a rating in excess of 10 percent for his bilateral knee disability. In October 2019, the Board remanded this claim to afford the Veteran a new VA examination. Pursuant to the October 2019 Board remand, the AOJ made attempts to schedule new VA examinations, the Veteran examinations were cancelled for various reasons, to include nonresponse to an RSVP letter. In August 2020, the Board remanded this claim, finding remand warranted as the Veteran was never notified of a scheduled VA examination date, and he only did not respond to a request to RSVP. Pursuant to the August 2020 Board remand, the Veteran was afforded a VA examination in December 2020. At the December 2020 examination, degenerative arthritis was noted. The Veteran reported his knee pain worsened and he has some stiffness as well. He reported flare-ups of severe, sharp pain two to three times a week lasting one to two hours. Functional loss was described as having a hard time standing and walking on his knees. Initial ROM testing revealed right knee flexion to 130 degrees and extension to 0 degrees. ROM itself did not contribute to functional loss, pain was noted on examination of flexion and causes functional loss. Mild pain was elicited upon palpation to the right knee. The examiner noted evidence of pain with weightbearing with no objective evidence of crepitus. At the December 2020 VA examination, initial ROM testing revealed left knee flexion to 135 degrees and extension to 0 degrees. ROM itself did not contribute to a functional loss, pain was noted on examination of flexion and extension and causes functional loss. Moderate pain was elicited upon palpation to the left knee. The examiner noted evidence of pain with weightbearing with no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions and no additional loss of function or ROM after three repetitions. The examiner noted that pain and weakness significantly limit functional ability with repeated use over a period of time. The examiner described functional loss in terms of ROM as right knee flexion to 125 degrees and extension to 0 degrees, and left knee flexion to 130 degrees and extension to 0 degrees. The December 2020 examiner noted that the examination was not being conducted during a flare-up, but the examination is medically consistent with the Veteran’s statements describing functional loss during a flare-up. The examiner noted that pain significantly limits functional ability with flare-up. The examiner described functional loss during a flare-up in terms of ROM as right knee flexion to 120 degrees and extension from 120 degrees to 0 degrees, and left knee flexion to 125 degrees and extension from 125 degrees to 0 degrees. No ankylosis or joint instability was indicated. The examiner noted a history of bilateral shin splints that were acute and resolved, no diagnosis warranted. No meniscus condition was indicated. The Veteran reported regular use of a knee brace. The examiner noted objective evidence of pain on passive ROM testing and when the joint is used in non-weightbearing. The examiner provided the Veteran with a new diagnosis of osteoarthritis as a progression of the previous diagnosis. A VA addendum opinion was obtained in February 2021. The February 2021 opinion added that precipitating factor for increased knee pain and weakness is prolonged standing and walking. Alleviating factors include elevating and icing the knees with warm and cold compresses, taking over the counter medication as needed as reported by the Veteran. The examiner further noted that during repeated use over time and flare-ups, the Veteran only reports increase pain and weakness on both knees, Veteran does not use a cane, only a knee brace. There is no evidence of abnormal gait. The examiner opined that it is less likely as not that repetitive use over time or flare-ups additionally limits motion to 45 degrees or less for flexion and or 15 degrees or more for extension. The Veteran reported no effusion or locking during flare-ups and there is no evidence of effusion or locking on the day of the examination. The Board acknowledges the Veteran's contentions that his service-connected bilateral knee disability warrants an increased evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to his back disability, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1) (2018). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected back disability. See Moray v. Brown, 5 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran's statements are consistent with the ratings assigned. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the Veteran's medical records. Consequently, the Board finds examinations conducted by trained medical professionals are more probative in determining the severity of the Veteran's service-connected bilateral knee disability. The Board finds that the Veteran’s bilateral knee disabilities do not warrant a rating in excess of 10 percent for knee patellofemoral syndrome with degenerative joint disease. Specifically, at worst, the Veteran’s right knee flexion was limited to 120 degrees and left knee flexion was limited to 125 degrees. Neither knee revealed limitation of extension. The Board further finds that the Veteran’s right knee instability does not warrant a rating in excess of 20 percent. Specifically, under the old criteria, the evidence of record does not show severe recurrent subluxation or lateral instability. Under the new criteria, the evidence of record does not show that he has unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribes both an assistive device and bracing for ambulation. The Board observes that the Veteran is also service connected for bilateral ankle instability, a 10 percent rating is assigned for each ankle from September 4, 2009. Thus, the Board finds that any right knee instability is adequately contemplated by the 20 percent rating under Diagnostic Code 5257.   Based on the foregoing, the preponderance of the evidence is against the claim. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; as the preponderance of the evidence is against assignment of any other higher ratings, it is not applicable. 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.