Citation Nr: 21026014 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-14 883 DATE: April 29, 2021 ORDER Entitlement to an increased rating higher than 10 percent for a right knee patellofemoral syndrome is denied. Entitlement to an increased rating higher than 10 percent for a left knee patellofemoral syndrome is denied. Entitlement to an initial rating higher than 10 percent for left knee instability is denied. FINDINGS OF FACT 1. The Veteran’s right knee patellofemoral syndrome have not more nearly approximated limitation of flexion to 30 degrees or limitation of extension to 15 degrees, to include consideration of functional loss. 2. The Veteran’s left knee patellofemoral syndrome have not more nearly approximated limitation of flexion to 30 degrees or limitation of extension to 15 degrees, to include consideration of functional loss. 3. The Veteran’s left knee symptoms have not more nearly approximated moderate or severe lateral instability or subluxation. CONCLUSIONS OF LAW 1. The criteria for an increased rating higher than10 percent for right knee patellofemoral syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5299-5019. 2. The criteria for an increased rating higher than10 percent for left knee patellofemoral syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5299-5019. 3. The criteria for an initial rating higher than 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1997 to July 2001. This case initially before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, continued the 10 percent ratings for right knee patellofemoral syndrome and right knee patellofemoral syndrome. The Veteran disagreed with the RO’s determination, and in a March 2015 rating decision, the RO granted service connection for left knee instability, secondary to left knee patellofemoral syndrome, and assigned an initial 10 percent rating effective July 22, 2011. A statement of the case (SOC) was issued in March 2015 addressing the matters. In July 2018, September 2019, and July 2020 the Board remanded the matters for further evidentiary development. In response to the Board’s July 2020 remand, an examination was conducted, and for the reasons indicated in the discussion below, was adequate to decide the claim. The agency of original jurisdiction therefore complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). HIGHER RATINGS Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before, he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or staged ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 it 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 seriously disabled. 38 C.F.R. § §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as seriously disabled any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). 1. Right Knee / Left Knee In this case, the AOJ has assigned 10 percent ratings for the Veteran’s service-connected right and left knee patellofemoral syndrome under Diagnostic Code 5299-5019. The hyphenated diagnostic code indicates that the Veteran’s knee disabilities were rated as analogous to a musculoskeletal system disease (Diagnostic Code 5299) under the criteria for bursitis (Diagnostic Code 5019). Recently, VA amended the criteria for rating the musculoskeletal system and muscle injures, effective from February 7, 2021. However, the criteria were not changed in a manner that affects the analysis in this case. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5219). As discussed above, under Diagnostic Code 5019, bursitis is to be rated on limitation of motion of the affected parts or as degenerative arthritis. Diagnostic Code 5260, which governs limitation of leg flexion, provides a zero percent rating for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and a maximum of 30 percent for flexion limited to 15 degrees. Id. Diagnostic Code 5261, which governs limitation of leg extension, provides a zero percent rating for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and a maximum of 50 percent for extension limited to 45 degrees. Id. The Schedule provides that the normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate For the following reasons, the Board finds that increased ratings higher than 10 percent for right and left knee patellofemoral syndrome under Diagnostic Code 5299-5019 are not warranted. In this case, repeated examinations have shown that the Veteran’s right and left knee motion is not limited to the extent necessary to meet the criteria for a rating higher than 10 percent under Diagnostic Codes 5260 and 5261, the codes setting forth the criteria for limitation of flexion and extension. Specifically, at the March 2012 VA examination, right knee flexion was to 110 degrees, and extension to zero degrees without pain, and left knee flexion was to 105 degrees, and extension to zero degrees without pain. At the December 2019 VA examination, bilateral knee flexion was to 130 degrees, with pain, and extension to zero degrees with pain. Pain noted on exam did not result in functional loss. At the January 2021 VA examination, bilateral knee flexion was normal at 140 degrees, with pain, and extension to zero degrees with pain. Pain noted on exam did not result in functional loss. Finally, repeated examinations have shown no additional loss of motion or function after repeated use. The Veteran’s right and left knee range of motion does not rise to the level of flexion limited to 30 degrees or extension limited to 15 degrees. Based on these findings, increased ratings higher than 10 percent under Diagnostic Code 5260 or 5261 are not warranted. Symptoms including pain have not been shown to produce additional functional loss or limitation of motion to support the assignment of higher ratings. At the March 2012 VA examination, the Veteran reported knee flareups that causes him to slow down and take it easy. He does not run, and it is difficult to ride his back. At the December 2019 VA examination, the Veteran reported left knee flareups when the weather changes and becomes cold or rainy. He stated that he does not know what causes his right knee flareup of sharp pain. The Veteran noted that he stopped running and playing sports. At the January 2021 VA examination, the Veteran reported right knee flareup of sharp pain from the center of his knee that shoots down his leg. He denied having left knee flareups. The Veteran indicated that both knees hurt when he is on them for a long time, especially when he is doing things or working. He noted that his right knee hurt worse than the left. Although the Veteran reported flare-ups of his right knee, there was no indication that the flare-ups were of such severity to result in loss of motion that would more nearly approximate the criteria for the next higher rating. Cf. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (finding orthopedic examination inadequate where flare-ups were not properly addressed). Specifically, the January 2019 VA examiner concluded that there were no additional losses of function in terms of degrees of motion lost during flareups. Accordingly, the evidence weighs against ratings higher than 10 percent for right and left knee disabilities, even with consideration to functional impairment. The Board has considered whether higher ratings could be assigned under an alternative diagnostic code, however, the Board finds that no other diagnostic codes are applicable. Repeated examinations indicate no evidence of ankylosis of the right and left knee. Thus, a rating under Diagnostic Code 5256 is not warranted. Furthermore, a rating under Diagnostic Codes 5258 and 5259 is not applicable. Specifically, the March 2012, December 2019, and January 2021 VA examiners indicated that the Veteran did not have, nor had he ever had, a meniscal disability. Thus, a rating under Diagnostic Codes 5258 and 5259 is not warranted. For the reasons set forth above, the Board finds that increased ratings higher than 10 percent for right knee patellofemoral syndrome and left knee patellofemoral syndrome are not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Left Knee Instability The Veteran is currently assigned a 10 percent rating under Diagnostic Code 5257 for his left knee instability. The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the prior version of DC 5257, a 10 percent rating is available for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under the revised version of DC 5257, for recurrent subluxation or lateral instability, 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. A 20 percent rating is assigned for one of the following: (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; (b) 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 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. 38 C.F.R. § 4.71a, DC 5257 (2021). In cases of patellar instability, a 30 percent rating is warranted for 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. A 20 percent rating is warranted 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, cane, or walker. A 10 percent rating is warranted 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. Under Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Per Note (2): 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). 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). The Veteran contends he has severe recurrent subluxation or lateral instability. For the following reasons, an initial rating higher than 10 percent for left knee instability is not warranted. In this case, the evidence does not more nearly approximate moderate left knee instability under either the prior or revised version of DC 5257 at any point during the appeal period. At the March 2012 VA examination, the Veteran reported his left knee gives way when he tries to run. Joint stability testing revealed normal posterior and medial-lateral instability of left knee. He exhibited 1+ (0-5 millimeters) anterior instability of left knee. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran occasionally used a knee sleeve (brace) for left knee when he ran. The December 2019 VA examination report indicates the Veteran’s joint stability tests were normal. The examiner noted the Veteran does not have or has ever had recurrent patellar dislocation. There was no history of recurrent subluxation. The Veteran did not use an assistive device. At the January 2021 VA examination, joint stability testing revealed normal anterior, posterior, and medial-lateral instability of left knee. He exhibited 1+ (0-5 millimeters) lateral instability of left knee. There was no history of recurrent subluxation of left knee. There was a history of slight lateral instability of left knee. The Veteran did not use assistive devices. The examination findings showing at most slight instability along with the Veteran’s statements at his March 2012 VA examination describing giving way and use of a knee sleeve (brace), do not reflect symptoms more nearly approximating moderate recurrent subluxation or lateral instability under either version of DC 5257 at any point during the appeal period. For the foregoing reasons, an initial rating higher than 10 percent for left knee instability is not warranted. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not for application in this regard. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.