Citation Nr: 21028270 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-50 063 DATE: May 10, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for the Veteran's service-connected right knee patellofemoral syndrome and chondromalacia is denied. REMANDED Entitlement to service connection for tinnitus is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's right knee disability was manifested by pain on motion; no limitation of motion in flexion or extension or instability has been shown. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 10 percent for the Veteran's service-connected right knee patellofemoral syndrome (PFS) and chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a. Diagnostic Codes (DCs) 5257, 5260, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the U.S. Marine Corps from May 1987 to June 1988; November 1990 to September 1992; March 1993 to May 1993; and June 2005 to May 2006. The Veteran is a decorated combat veteran who earned the Navy/Marine Corps Commendation Medal and the Combat Action Ribbon. The Board of Veterans' Appeals (Board) is grateful for the Veteran's service. The issues at hand come before the Board initially from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in December 2013. In the rating decision, VA denied the Veteran's claim of service connection for tinnitus and granted a noncompensable rating for the Veteran's service-connected right knee disability. In April 2019, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. The Board issued a September 2019 decision regarding the Veteran's tinnitus and service-connected right knee, along with a plethora of other issues the Veteran claimed. In relevant part, the Board remanded the claim of service connection for tinnitus, as well as the claim for a higher rating of the right knee, to further develop the claims and to obtain new VA examinations. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). Finally, in July 2020, the RO issued a partial grant on the Veteran's right knee, increasing the evaluation to 10 percent disabling. The Board is satisfied that there was substantial compliance with one of its remand orders and is prepared to adjudicate that issue. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The other issue must be remanded again, due to an inadequate VA examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). 1. Entitlement to an evaluation in excess of 10 percent for the Veteran's service-connected right knee patellofemoral syndrome and chondromalacia Service connection was granted for right knee patellofemoral syndrome and chondromalacia in the December 2013 rating decision with a noncompensable evaluation. The July 2020 rating decision on appeal found the right knee to exhibit painful motion, and therefore granted the Veteran a 10 percent evaluation for the knee for the entirety of the appeal period. 38 C.F.R. § 4.59. The Veteran contends he is entitled to a rating in excess of 10 percent for his right knee disabilities, characterized as patellofemoral syndrome and chondromalacia. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. See also DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. The VA General Counsel has issued a precedential opinion holding that "separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg." See VAOPGCPREC 9-2004 (Sept. 17, 2004). In addition, a Veteran may be assigned separate ratings for arthritis with limitation of motion under Diagnostic Code 5260 or 5261 and for instability under Diagnostic Code 5257. See VAOPGCPREC 23-97 (July 1, 1997). The Veteran's right knee was initially granted service connection with a noncompensable rating under DC 5257. In a July 2020 rating decision, the RO granted the Veteran an initial 10 percent rating for his right knee disability under DC 5260, finding that his painful motion warrants a 10 percent rating. The Veteran initially underwent VA examination for his right knee in November 2013. At that time, he was diagnosed with patellofemoral syndrome and early chondromalacia of the right knee. Range of motion testing showed a full range of motion, with 140 degrees of flexion and full extension to 0 degrees, with no evidence of painful motion and no additional limitation on repetitive-motion testing. Instability testing was entirely normal, and no evidence or history of ankylosis, recurrent patellar subluxation or dislocation was noted. However, on the most recent December 2019 VA examination, the Veteran stated that since his last examination in 2013 he experienced increased pain that is worse when using the stairs, is painful when lunging, and aches when bending, squatting, or descending down the stairs. The examiner notes that the Veteran had no abnormal range of motion and no evidence of pain on weight-bearing; range of motion testing revealed flexion to 140 degrees and extension to 0 degrees with no additional limitation of motion on repetition. No additional limitation was estimated to occur during flare-ups. Instability testing was entirely normal, and no evidence or history of ankylosis, recurrent patellar subluxation or dislocation was noted. But the Veteran was noted to exhibit pain on flexion of the knee and tenderness or pain on palpation of the joint as well. The July 2020 rating decision, relying on the December 2019 VA examination, issued the Veteran a partial grant of 10 percent disability for the right knee patellofemoral syndrome and chondromalacia, under 38 C.F.R. § 4.59 and DC 5260. In 38 C.F.R. § 4.59, VA recognized that the intent of the rating schedule to recognize painful motion of a joint as productive of disability. Therefore, actually painful healed injuries are "entitled to at least the minimum compensable rating for the joint." Id. Effective February 7, 2021, VA revised the portion of the Rating Schedule that addresses the Musculoskeletal System and Muscle Injuries. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020)(to be codified at 38 C.F.R. § 4.71a). 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. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. 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. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 have not been revised during the pendency of this claim. Limitation of flexion of a leg warrants a 10 percent evaluation if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg warrants a 10 percent evaluation when it is limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Diagnostic Code 5010 provides that arthritis due to trauma, as substantiated by x-ray findings, is to be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a , Diagnostic Code 5010. Degenerative arthritis established by radiologic findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Diagnostic Code 5003 further states that, where 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Under the new rating criteria effective February 7, 2021, Diagnostic Code 5003 remained largely unchanged as the main revision was only the title of the code to "Degenerative arthritis, other than post-traumatic." Diagnostic Code 5010 was revised for "post-traumatic arthritis," by removing the instruction to rate as degenerative arthritis under 5003 and directing that traumatic arthritis be rated as "limitation of motion, dislocation, or other specified instability under the affected joint." To the extent Diagnostic Code 5257 may be applicable in this case, the rating criteria were revised February 7, 2021. Under the former rating criteria prior to February 7, 2021, DC 5257 rates impairment based on recurrent subluxation or lateral instability of the knee, and provides a 10 percent evaluation where there is evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating with evidence of severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a , Diagnostic Code 5257. Under the revised rating criteria effective February 7, 2021, Diagnostic Code 5257, removes the "severe," "moderate," and "slight" language for recurrent subluxation or lateral instability and adds rating for patellar instability. For recurrent subluxation or instability, a 10 percent rating is warranted 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 warranted for one of the following: 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, 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 30 percent rating is warranted 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. For patellar instability, 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. 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 one of the following: A brace, cane, or walker. A 30 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 and either a cane or a walker. Here, throughout the appeal period, the Veteran has exhibited normal range of motion on flexion and extension of the knee. Both the November 2013 and December 2019 VA examiners specifically found the Veteran to have full flexion to 140 degrees and extension to 0 degrees, with no additional limitation on repetition or during flare-ups. Thus, separate or higher ratings under Diagnostic Codes 5260 and 5261 are not warranted. However, as the Veteran has exhibited painful motion of the right knee throughout the appeal period, as documented in both the VA examinations and his treatment records, the 10 percent rating is warranted. See 38 C.F.R. § 4.59; DeLuca, supra. Diagnostic Code 5257 governs other impairment of the knee, providing respective ratings of 10, 20, and 30 percent for slight, moderate, or severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a. The Board finds, however, that a separate rating is not warranted under Diagnostic Code 5257 for knee instability. There is no objective finding of instability on the record. There is no mention of instability during the Veteran's private examinations in December 2011 and June 2012, conducted by Dr. T.M. The right knee was also found to be stable during his November 2013 and December 2019 VA examinations. The only evidence of instability is when the Veteran testified in April 2019 that he had experienced his right knee "collapsing" when walking down the stairs. The Veteran is competent to report instability of the right knee, but the Board finds that the medical evidence of record (based on objective testing) is more probative regarding the severity of the right knee instability. As there is no documented instance of instability during objective testing and stable findings on various VA examinations, and there is no evidence that the Veteran uses an assistive device such as a cane or knee brace to assist with walking, the Board cannot conclude that the Veteran's knee instability most nearly approximates any recurrent instability. The Board has considered whether additional ratings are warranted under other diagnostic codes during the appeal period, but finds that they are not applicable in the instant case. To the extent that there have been reports of swelling in the knee, there is no indication of any additional functional limitation not contemplated in the above ratings. There is similarly no evidence of ankylosis, a condition of the cartilage, impairment of the tibia or fibula, or genu recurvatum. The Board finds that the Veteran does not meet the rating criteria for separate or higher ratings for his right knee disability. 38 C.F.R. § 4.71a; Lyles v. Shulkin, 29 Vet. App. 107 (2017). The claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. As such, tinnitus is "subjective," as its existence is generally determined by whether the Veteran claims to experience it. The Board has no reason to doubt the Veteran's reports of current tinnitus and thereby concludes that he experiences tinnitus. On the November 2013 examination, the Veteran did not report any type of recurrent tinnitus and explicitly denies having tinnitus. Additionally, the service treatment records (STRs) show no complaints, treatment, or diagnosis of tinnitus while in-service. In March 2015, the Veteran submitted a statement from a fellow Marine who had served in Iraq with the Veteran. The fellow Marine's buddy statement asserted that the Veteran experienced regular enemy mortar fire and was exposed to routine outgoing artillery fire. The buddy statement also claimed that the Veteran was a frequent target of IED attacks, and he led Marines in an environment that consisted of multiple firefights as well as rocket attacks. Finally, the fellow Marine stated that all these experiences have led to severe ringing in the ears of the Veteran. At the April 2019 Board hearing, the Veteran claimed that his tinnitus has been getting progressively worse since he first noticed it in 2013. He also states that he believes IEDs, bombs, and firefights he was involved in had a reaction on his ears. In December 2019, the Veteran received a new VA examination for tinnitus. The examiner opined that the tinnitus is less likely than not caused by or a result of military noise exposure. The examiner offered a rationale, stating that the Veteran first noticed the tinnitus in 2013 but was discharged in 2006. The examiner also stated that the Veteran denied any ringing in his ears during his post-deployment health assessment in 2006. The examiner noted that if the tinnitus was caused by military noise exposure, it would have been present before 2013. Finally, the examiner reported that the Veteran's hearing loss was present prior to his discharge and tinnitus was not, so the tinnitus is not likely due to the hearing loss. In August 2020, VA sought an addendum opinion from the examiner who conducted the December 2019 exam, noting that there was no aggravation opinion offered even though an aggravation opinion was specifically asked for in the Board's September 2019 remand directives. In August 2020, the VA examiner stated that the Veteran's tinnitus was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner also stated that the Veteran's tinnitus is less likely than not aggravated by service, but by way of rationale, the examiner stated only that "tinnitus was not caused by hearing loss." The Board finds that this rationale is inadequate, as it merely restates the lack of causation as a reason for why the Veteran's tinnitus was not aggravated by his hearing loss. No separate rationale or explanation is provided. Thus, unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of tinnitus. Therefore, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Obtain an addendum opinion from a qualified clinician to determine the nature and etiology of any tinnitus. The examiner must opine whether it is at least as likely as not that any diagnosed tinnitus was aggravated beyond its natural progression by service-connected left ear hearing loss. A rationale more thorough than a mere indication that the Veteran's hearing loss did not cause his tinnitus is necessary. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any requested opinion without resort to speculation, he or she should so indicate and explain why such a finding is made. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.