Citation Nr: 21027281 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-10 197 DATE: May 5, 2021 ORDER A rating in excess of 20 percent for left knee patellofemoral stress syndrome with degenerative joint disease is denied. A separate rating of 10 percent for left knee instability is granted. A rating in excess of 10 percent for right knee patellofemoral stress syndrome with degenerative joint disease is denied. A separate rating of 10 percent for right knee instability is granted. FINDINGS OF FACT 1. The Veteran's service-connected left knee disability has been manifested by, at worst, an estimated 50 degrees of flexion and 15 degrees of extension with repeated use over time, and no more than slight instability. 2. The Veteran's service-connected right knee disability has been manifested by, at worst, an estimated 80 degrees of flexion and 0 degrees of extension with repeated use over time, and no more than slight instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left knee patellofemoral stress syndrome with degenerative joint disease based on limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2020). 2. The criteria for a separate rating of 10 percent for left knee instability have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2020). 3. The criteria for a rating in excess of 10 percent for right knee patellofemoral stress syndrome with degenerative joint disease based on limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2020). 2. The criteria for a separate rating of 10 percent for right knee instability have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2020). REASONS AND BASE FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1989 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran requested a hearing before a Veterans Law Judge. That hearing was initially scheduled for December 2018; however, it was postponed due to a government closure. In January 2019 and February 2019, the Veteran was notified of the new date and time of his scheduled hearing. However, the record shows that he did not appear for the hearing or provide an explanation for his failure to appear. Accordingly, his hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). This matter was previously before the Board in April 2020, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. The Board notes that in a November 2020 rating decision, service connection was granted for a cervical strain and right rotator cuff injury with shoulder strain and bicipital tendonitis. Therefore, those issues are no longer before the Board. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 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 disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. 1. Entitlement to a rating in excess of 20 percent for left knee patellofemoral stress syndrome with degenerative joint disease The Veteran's service-connected left knee disability has been assigned a 20 percent rating based on limitation of extension. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Degenerative or traumatic arthritis established by x-ray findings are rated on the basis of limitation of motion for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is warranted for each major joint or group of minor joints affected by limitation of motion. Id. Painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Limitation of motion of the knee is evaluated under Diagnostic Codes 5260 (flexion) and 5261 (extension). Under Diagnostic Code 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees; a 20 percent rating is warranted where flexion is limited to 30 degrees; and a maximum 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Full knee flexion is to 140 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5261, a 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a maximum 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Full knee extension is to 0 degrees. 38 C.F.R. § 4.71a, Plate II. A separate rating may also be assigned for instability of the knee. See VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997) (arthritis of the knee may be assigned separate ratings for limitation of motion and instability, provided that any separate rating is based upon additional disability); see also 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Upon review of the record, the Board finds that a rating in excess of 20 percent is not warranted for limitation of motion of the left knee any time during the period under review. The Board has reviewed and considered the Veteran's assertions in support of his claim, including his reports of knee pain, which slows him down at the end of the day and affects his ability to squat. However, even considering the Veteran's subjective complaints of pain and other symptoms described in DeLuca, there is no evidence of left knee extension limited to 20 degrees or more such that a higher rating would be warranted based on limitation of extension, or flexion limited to 45 degrees or less such that a separate compensable rating would be warranted based on limitation of flexion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261; see also Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). The Veteran underwent VA knee examinations in April 2013; November 2015, with an addendum provided in January 2016; and September 2020, with addendum provided in December 2020. Range of motion testing revealed, at worst, left knee flexion to 100 degrees and extension to 0 degrees during the April 2013 VA examination, and the September 2020 VA examiner estimated that the Veteran's left knee would exhibit 50 degrees of flexion and 15 degrees of extension with repeated use over time. There was no evidence of ankylosis noted at any time. Moreover, the Veteran's treatment records do not show symptoms more severe than those noted during the VA examinations. Accordingly, a rating in excess of 20 percent based on limitation of motion is not warranted at any time during the period under review. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Upon review of the record, the Board finds that a separate 10 percent rating is warranted for instability of the left knee. In May 2014 and February 2016 written statements, the Veteran asserted that he has instability in his knees, and they buckle. In a September 2015 written statement, the Veteran indicated that he injured his right shoulder and neck when his left knee gave out, and he was subsequently awarded service connection for those injuries. It was also noted during the September 2020 VA examination that the Veteran occasionally wore braces on his knees. Based on the foregoing, the Board finds that the criteria for a separate 10 percent rating for left knee instability have been more nearly approximated. The Board finds that a rating in excess of 10 percent is not warranted for left knee instability at any time during the period under review, as anterior, posterior, medial, and lateral joint stability tests were all normal during the April 2013, November 2015, and September 2020 VA examinations, and all three VA examiners indicated that there was no history of recurrent subluxation or lateral instability. As the record only contains subjective complaints of instability and no objective evidence upon joint stability testing, the Board finds that the record shows no more than slight instability of the left knee. Accordingly, a rating in excess of 10 percent for instability of the left knee is denied. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. 2. Entitlement to a rating in excess of 10 percent for right knee patellofemoral stress syndrome with degenerative joint disease The Veteran's service-connected right knee disability has been assigned a 10 percent rating based on painful motion. See 38 C.F.R. § 4.59. Upon review of the record, the Board finds that a rating in excess of 10 percent is not warranted for limitation of motion of the right knee any time during the period under review. The Board has reviewed and considered the Veteran's assertions in support of his claim, including his reports of knee pain, which slows him down at the end of the day and affects his ability to squat. However, even considering the Veteran's subjective complaints of pain and other symptoms described in DeLuca, there is no evidence of right knee flexion limited to 45 degrees or less such that a compensable rating is warranted under Diagnostic Code 5260, or extension limited to 10 degrees or more such that a compensable rating is warranted under Diagnostic Code 5261. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261; see also Thompson, 815 F.3d at 786. The Veteran underwent VA knee examinations in April 2013; November 2015, with an addendum provided in January 2016; and September 2020, with addendum provided in December 2020. Range of motion testing revealed, at worst, flexion to 110 degrees and extension to 0 degrees during the April 2013 and November 2015 VA examinations, and the September 2020 VA examiner estimated that the Veteran's right knee would exhibit 80 degrees of flexion and 0 degrees of extension with repeated use over time. There was no evidence of ankylosis noted at any time. Moreover, the Veteran's treatment records do not show symptoms more severe than those noted during the VA examinations. Accordingly, a rating in excess of 10 percent based on limitation of motion is not warranted at any time during the period under review. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Upon review of the record, the Board finds that a separate 10 percent rating is warranted for instability of the right knee. In May 2014 and February 2016 written statements, the Veteran asserted that he has instability in his knees, and they buckle. It was also noted during the September 2020 VA examination, that the Veteran occasionally wore braces on his knees. Based on the foregoing, the Board finds that the criteria for a separate 10 percent rating for right knee instability have been more nearly approximated. The Board finds that a rating in excess of 10 percent is not warranted for right knee instability at any time during the period under review, as anterior, posterior, medial, and lateral joint stability tests were all normal during the April 2013, November 2015, and September 2020 VA examinations, and all three VA examiners indicated that there was no history of recurrent subluxation or lateral instability. As the record only contains subjective complaints of instability and no objective evidence upon joint stability testing, the Board finds that the record shows no more than slight instability of the right knee. Accordingly, a rating in excess of 10 percent for instability of the right knee is denied. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.