Citation Nr: 21027395 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 10-27 061 DATE: May 5, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a left knee disability is denied. Entitlement to an initial rating in excess of 10 percent for a right knee disability is denied. FINDINGS OF FACT 1. The Veteran's left knee disability is not manifested by incapacitating episodes and his flexion has not been limited to 30 degrees or less, nor his extension limited to 15 degrees or greater. 2. The Veteran's right knee disability is not manifested by incapacitating episodes and his flexion has not been limited to 30 degrees or less, nor his extension limited to 15 degrees or greater. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.14, 4.45, 4.71a, Diagnostic Code 5099-5003; 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5099-5003). 2. The criteria for an initial rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.14, 4.45, 4.71a, Diagnostic Code 5099-5003; 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5099-5003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from July 1986 to July 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified in October 2013 before a Veterans law Judge at a hearing in Washington, D.C., a transcript of which is of record. This hearing was before a now-retired Judge. Although given the opportunity to request another hearing by VA written correspondence in November 2018, the Veteran declined to do so by not responding to the letter within the 30-day response period. These matters were previously before the Board in August 2014 and January 2019, both times being remanded for further development. These matters have since returned to the Board for further appellate review. 1. Entitlement to an initial rating in excess of 10 percent for a left knee disability is denied. 2. Entitlement to an initial rating in excess of 10 percent for a right knee disability is denied. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. When a question arises as to which of two ratings shall be applied under a particular DC, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they may be compensated under different diagnostic codes (DC). See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitation, and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of the examination. Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Moreover, adjudication of a claim for a higher initial disability rating should include specific consideration of whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). A veteran may receive more than one compensable rating for different conditions of the same knee. Thus, the Board will discuss all applicable rating criteria for the knees. See VAOPGCPREC 09-04; VAOPGCPREC 23-97. The Veteran is currently service connected for left knee and right knee patellofemoral syndrome and seeks an increased rating. His patellofemoral syndrome is currently rated as 10 percent disabling in both knees under DC 5099-5003. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is "built up" with the first two digits being selected from that part of the schedule most closely identifying the part, and the last two digits being "99" for an unlisted condition. Id. The rating criteria for musculoskeletal disabilities were revised effective February 7, 2021. 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). Because this revision occurred during the pendency of the Veteran's claim, whichever version is most favorable to him must be applied. However, the new version can only be applied as of its effective date. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 7-2003; Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003). Under both the earlier and revised rating criteria, degenerative arthritis is rated under Diagnostic Code 5003. Under this code, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the 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 or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. Under the old criteria, DC 5256 is for ankylosis of the knee. Extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more is rated at 60 percent. Unfavorable ankylosis in flexion between 20 degrees and 45 degrees warrants a50 percent rating. Unfavorable ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent rating. A 30 percent rating is warranted for favorable ankylosis at an angle in full extension or in slight flexion between 0 degrees and 10 degrees. The criteria for the current DC 5256 are the same as the old DC 5256. Under the old criteria, DC 5257 consisted of severe, moderate, or slight recurrent subluxation or lateral instability that warranted either a 30, 20, or 10 percent disability rating, respectively. Under the current DC 5257, recurrent subluxation or instability that was unrepaired or failed repair of complete ligament tear causing peristent instability warrants a 30 percent rating. A 20 percent rating is warranted for a sprain, incomplete ligament ter, or repaired complete ligament tera causing peristent instability, or unprepared or failed repair of complete ligament tear causing persistent instability. Patellar instability warrants a 30 percent disability rating if 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. 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 a history of surgical repair) that does not require a prescription for a brace, cane, or walker. Under the old criteria, DC 5258 provided a 20 percent disability rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The current DC 5258 criteria is the same as the prior criteria. Both the old and current criteria for DC 5259 provides a 10 percent rating for symptomatic removal of the semilunar cartilage. Under the old and current criteria, DC 5260, limitation of flexion of the knee to 15 degrees warrants a 30 percent rating. A 20 percent rating is warranted for flexion limited from 16 to 30 degrees A 10 percent rating is warranted for flexion limited to 45 degrees. Flexion limited to 60 degrees is noncompensable. Under the prior and current criteria for DC 5261, extension of the knee limited to 45 degrees or more warranted a 50 percent rating. A 40 percent rating is warranted for extension limited from 44 to 30 degrees. A 30 percent rating is warranted for extension limited from 29 to 10 degrees. A 20 percent rating is warranted for extension limited from 19 to 15 degrees. A 10 percent rating is warranted for extension limited from 14 to 10 degrees. Limitation to 5 degrees is rated as noncompensable. Under the previous criteria for DC 5262, nonunion of either the tibia or fibula with loose motion requiring a brace warranted a 40 percent rating. For malunion of the tibia or fibula with either marked, moderate, or slight knee or ankle disability, a 30, 20, or 10 percent disability rating is warranted, respectively. Under the current criteria, DC 5262 provides for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring a brace. The DC also notes that malunion should be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee or DC 5262, whichever results in the highest evaluation. A 30 percent rating is warranted for medial tibial stress syndrome or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shore orthotics or other conservative treatment, both lower extremities. A 20 percent rating is warranted when it requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A rating of 10 percent is warranted when it requires treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. Treatment less than 12 consecutive months for one or both lower extremities is noncompensable. Genu recurvatum, acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated, is rated at 10 percent disability under both the prior and current DC 5263 rating criteria. When assessing the severity of musculoskeletal disabilities that are, at least partly, rated on the basis of limitation of motion, VA also must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when a veteran's symptoms are most prevalent ("flare-ups") due to the extent of his or her pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 20407 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran was afforded VA examinations in January 2007, August 2007, October 2008. April 2010. January 2015, and January 2020. In the January 2007 examination, the Veteran reported having knee pain in the morning and after sitting for long periods of time, although they seemed to be better after warming them up. He also reported popping, catching, and giving away of his knee, but no locking. Active and passive range of motion was noted as being from 0 degrees to 120 degrees, but no knee is noted. The examiner found no localized tenderness and noted active, passive, and loaded active tracking to be smooth. Step up, step down, deep knee-bends with double and single support were performed without any crepitus or pain. The examiner diagnosed the Veteran with bilateral patellofemoral syndrome. In the August 2008 examination, the Veteran reported he had pain, swelling, stiffness, and popping in his knees. His initial range of motion was noted as 0 to 140 degrees of flexion in both knees, with no additional loss of flexion on repetitive use testing. No measurements for extension were provided. The Veteran's August 2007 imaging report showed no significant osseous, articular, or soft tissue abnormalities. In the October 2008 examination, the Veteran's passive and active range of motion for his right knee was 0 to 135 degrees of flexion and 135 to 0 degrees of extension, with pain noted as beginning at 90 degrees for flexion and 15 degrees for extension. His left knee range of motion was 0 to 130 degrees of flexion, with pain beginning at 90 degrees for flexion. Range of motion for left knee extension was not noted on the examination. All measured movements did not have additional loss after repetitive use testing. No inflammatory arthritis or ankylosis was noted. Tenderness, painful movement, weakness, and abnormal movement were noted for both knees. In the April 2010 examination, the Veteran reported his knees continued to "give out" at times since his last examination. He also described having daily pain in both knees and received Cortizone shots in his knees, which provided some relief. The initial range of motion for the Veteran's right knee was 0 to 120 degrees of flexion, with patellar pain noted from 120 to 130 degrees. The range of motion for his left knee was noted as from 0 to 130 degrees of flexion, with patellar pain noted at 130 or 140 degrees. Extension for both knees was noted as going to 0 degrees, with no pain noted for either knee. No additional loss of motion or instability was noted during the examination. The bilateral knee x-rays in the file were noted as being normal. In the January 2015 examination, the Veteran reported having a Cortizone shot in September 2014. He did not report any flare-ups nor any functional loss or impairment during this examination. The initial range of motion for the right knee was 0 to 110 degrees of flexion and 110 to 0 degrees of extension. The initial range of motion for the left knee was 0 to 120 degrees of flexion and 120 to 0 degrees of extension. The range of motion for both knees was noted as contributing to functional loss due to the Veteran's inability to fully flex either knee. No pain with weightbearing or tenderness on palpation was noted for either knee. After repetitive-use testing, the Veteran's right knee had no additional loss in range of motion. However, his left knee range of motion decreased to 0 to 110 degrees of flexion and 110 to 0 degrees of extension. Repeated use over time testing was also performed, but pain, weakness, fatigability, and incoordination were not noted as limiting the functional ability of either knee. The Veteran had normal muscle strength with no atrophy, no instability, ankylosis, arthritis, crepitus, or meniscus conditions noted. In the January 2021 examination, the Veteran reported he was told by his private orthopedist that he had had received the maximal treatment with Cortizone injections and was advised to consider arthroscopic surgery. However, the Veteran has not undergone surgery as of the examination. The Veteran also reported experiencing flare-ups, stating while he typically has a constant pain of about 4/10 in his knees, during a flare-up the pain increases to about a 9/10. These flare-ups last between 30 minutes to one hour, and it is difficult to do anything during a flare-up. These flare-ups affect both knees, and while there is occasionally swelling, the pain is always increased during these events. He also stated his knees will throb, even when laying down, and will also buckle forwards occasionally when he walks. As for functional loss, the Veteran stated he has difficulty driving long distances and riding a bike, and he cannot run or do any high impact activities. He also cannot sit still for longer than 3 hours without pain, and often gets up every so often, and leaves his legs stretched out when he can. The initial range of motion for the right knee was 0 to 110 degrees of flexion and 110 to 0 degrees of extension. The initial range of motion for the left knee was 0 to 100 degrees of flexion and 100 to 0 degrees of extension. The range of motion itself did not contribute to functional loss for either knee. Pain was noted during flexion and when weightbearing for both knees, but no localized tenderness or crepitus was present. No additional loss in motion was noted after repetitive-use testing for either knee. The examination was medically consistent with the Veteran's statements describing his functional loss with repetitive use over time, with pain and fatigue contributing to this loss in both knees, although the range of motion is the same as the initial range of motion. The Veteran reported flare-ups, but the examination did not occur during a flare-up. The examiner noted that pain significantly limited the functional ability of both knees during a flare-up. He estimated the range of motion of the right knee to be from 0 to 95 degrees of flexion and 95 to 0 degrees of extension and the left knee to have 0 to 90 degrees of flexion and 90 to 0 degrees of extension during a flare-up. Both knees had normal muscle strength and no atrophy, ankylosis, subluxation, lateral instability, or instability in general. Arthritis was noted in the left knee. The Veteran reported using knee braces regularly. He also reported that his knee problems prevented him from doing strenuous physical labor or high impact activity. The examiner noted the Veteran had evidence of pain in non-weightbearing for both knees, but there was no additional loss of movement when performing passive range of motion testing. The examiner stated the Veteran's knee conditions had progressed due to wear and tear, with some patellar spurring that caused additional pain and functional impact. The examiner further stated the Veteran denied any swelling and effusion, and there was no evidence of effusion in the joint, nor was there evidence for any locking conditions. With the Veteran's patellofemoral syndrome, the spurring would not involve the primary knee joint or ligaments, and thus would be unlikely to cause a locking condition. The Veteran has submitted additional private medical treatment records from multiple providers. The records from eagle's Landing Bone & Joint in January 2007 note good range of motion in the knees, with a measurement of 0 to 120 degrees of flexion. The October 2006 records from South Metro Bone and Joint PC noted the Veteran had pain and stiffness in his knees, but still maintained full range of motion in flexion and extension. The records from a private clinic in June 2008 imaging reports noted no synovial plica in either knee, but both knees showed evidence of a small popliteal cyst, with he left knee cyst having ruptured interiorly into the cap. The right knee had mild medial patellar facet chondromalacia, while the left knee had evidence of a small ganglion cyst on the popliteal tendon. The September 2014 records note active range of motion of 0 to 130 degrees of flexion and 130 to 0 degrees of flexion for both knees, which the physician noted as normal. The physician also noted normal passive range of motion for both knees. No pain was noted during range of motion testing. The May 2018 treatment record from Columbus Shoulder Surgery & Sports Medicine diagnosed a derangement of the medial meniscus and synovial plica syndrome in both knees. The physician stated the Veteran had undergone an extensive course of conservative treatment for his knee pain, including three to four injections in each knee that results in good pain relief. However, the physician recommended arthroscopic surgery, starting with the right knee, because he considered the conservative treatments as failed. The Veteran testified before the Board in October 2013. He described how his knees would "give way" at least 10 times a year, both while walking down stairs and on a straightaway. He was also participating in physical therapy for his knees and reported that his physician thought he could have "supra-plica" and suggesting scoping in order to address the issue. The Veteran reported having injections in his knees and wearing braces for support. As for driving, the Veteran stated he could drive for a few hours, but would stretch his knees some while in the car, and always stretched his knees upon getting out of the car, describing some stiffness and pain after driving. In reviewing the evidence of record, the Board finds the January 2015 and January 2021 VA examinations to be of the greatest probative value when evaluating the Veteran's left and right knee patellofemoral syndrome. While there are earlier VA examinations of record, these examinations are missing different necessary pieces of information, including range of motion measurements or possible additional related knee issues. Thus, the Board will be using the January 2015 and January 2021 examinations for rating the entire period on appeal. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left and right knee patellofemoral syndrome. The Board acknowledges the Veteran's lay testimony of symptoms, including stiffness, pain, his knees giving away at times when walking, difficulty standing for more than 5 minutes at a time, and difficulty sitting for long periods, and also acknowledges there was functional loss due to these symptoms. The Board also acknowledges the Veteran's increased pain during flare-ups, increasing from his baseline 4/10 to a 9/10 for anywhere between 30 minutes and one hour, describing that the pain made it difficult for him to do much during those times. However, while his condition and flare-ups clearly cause some functional loss, they do not cause incapacitation. Even when considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements would not result in limitation of motion more nearly approximating flexion limited to 60 degrees or less or extension limited to 15 degrees or more. The Board considered the private medical evidence of record in coming to this conclusion. However, none of the private treatment records note a limitation of range of motion of 30 degrees of flexion or 15 degrees of extension. Additionally, while the May 2018 treatment record from a private clinic notes the physician diagnosed the Veteran with bilateral deranged menisci and advised the Veteran on undergoing arthroscopic surgery, the Veteran has not undergone surgery as of this time. The Board also considered the other Diagnostic Codes (DCs) pertaining to the knee and leg. To this end, the preponderance of the evidence does not support a separate rating under the criteria for DCs 5256, 5257, 5258, 5259, 5262, or 5263. The Veteran's left knee disability is not manifested by ankylosis, dislocation of the semi-lunar cartilage, symptomatic removal of semi-lunar cartilage, any instability, any impairment of the tibia and/or fibula, or genu recurvatum throughout the entire appeal period. Thus, these diagnostic codes are not applicable in this case under the criteria either prior to February 7, 2021 or the criteria since. The Board will apply the version of the rating criteria more beneficial to the Veteran effective from February 7. 2021. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991); see also Kuzma, 341 F.3d at 1329. The Board therefore finds that, had the Veteran's patellofemoral syndrome been rated under the amended regulation, it would have been evaluated at 10 percent prior to February 7, 2021, and at 10 percent from February 7, 2021. Accordingly, the Board finds that the previous and current rating criteria result in the same rating, and therefore will continue rating under the rating criteria in effect prior to February 7, 2021. Accordingly, the Board finds that the preponderance of the evidence is against finding that a disability rating in excess of 10 percent, for the Veteran's left knee and right knee patellofemoral syndrome is warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.