Citation Nr: 21028571 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 09-44 541 DATE: May 11, 2021 ORDER Entitlement to a rating in excess of 10 percent for iliotibial band syndrome of the right knee from March 31, 2015, for limitation of motion is denied. Entitlement to a rating in excess of 10 percent for iliotibial band syndrome of the left knee from March 31, 2015, for limitation of motion is denied. Entitlement to a separate 20 percent rating for instability of the right knee under Diagnostic Code 5257 from March 31, 2015, is granted. Entitlement to a separate 20 percent rating for instability of the left knee under Diagnostic Code 5257 from March 31, 2015, is granted. FINDINGS OF FACT 1. During the appeal period the Veteran experienced dislocation of the knees two to three times per month and instability in the knees with occasional use of a knee brace and cane, but recurrent subluxation or lateral instability was not found on examination. 2. From March 31, 2015, even considering the Veteran's pain and corresponding functional impairment, including during flare-ups, her right knee is not productive of flexion limited to 30 degrees or less or extension limited to 15 degrees. 3. From March 31, 2015, even considering the Veteran's pain and corresponding functional impairment, including during flare-ups, her left knee is not productive of flexion limited to 30 degrees or less or extension limited to 15 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for iliotibial band syndrome of the right knee from March 31, 2015, for limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260-61. 2. The criteria for a rating in excess of 10 percent for iliotibial band syndrome of the left knee from March 31, 2015, for limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5260-61. 3. The criteria for a separate 20 percent for instability of the right knee from March 31, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5257. 4. The criteria for a separate 20 percent for instability of the right knee from March 31, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1988 to January 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before a Veterans Law Judge (VLJ) in July 2016. A transcript of the hearing has been associated with the claims file. The VLJ who conducted the hearing is no longer at the Board. The Veteran has been offered a new hearing and has not responded. This case was previously remanded by the Board in April 2016, April 2017, April 2018, and June 2019 decisions for further development. In April 2018, the Board granted ratings of 10 percent, but no higher, prior to March 31, 2015, for iliotibial band syndrome in both knees. The Board also denied ratings in excess of 10 percent from March 31, 2015, for iliotibial band syndrome in both knees. The Board also remanded the issue of service connection for chronic anemia. The Veteran was granted service connection for chronic anemia with an evaluation of 0 percent effective February 1, 2008. See October 2020 Rating Decision. Subsequently, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) the portion of the April 2018 Board decision that denied entitlement to disability ratings in excess of 10 percent from March 31, 2015, for iliotibial band syndrome in both knees. In a November 2018 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board's decision that denied increased ratings for iliotibial band syndrome in both knees from March 31, 2015, for action consistent with the instructions outlined in the JMPR. The Veteran did not challenge the Board's denial of ratings higher than 10 percent for her right and left knee disabilities prior to March 31, 2015, and as such, those issues are no longer before the Board. See November 2018 JMPR at 1. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two disability evaluations shall be applied the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). 1. Entitlement to an initial rating in excess of 10 percent for iliotibial band syndrome of the right knee from March 31, 2015 2. Entitlement to an initial rating in excess of 10 percent for iliotibial band syndrome of the left knee from March 31, 2015 The Veteran contends that she is entitled to a rating in excess of 10 percent for her service-connected left knee and right knee limitation of motion. The Veteran's left knee and right knee limitation of motion is rated under DC 5260 for limitation of flexion and Diagnostic Code 5261 for limitation of extension. In the June 2019 Board decision, the Board noted that the April 2017 VA knees examination did not provide an adequate rationale as required under Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The April 2017 VA examiner did not elicit all relevant information as to the Veteran's additional functional loss with repeated use over time and in regard to flare-ups. The claims were remanded to afford the Veteran a VA examination consistent with the guidance provided in Sharp. Under DC 5260, where limitation of flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a , DC 5261, limitation of extension of the leg is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Post remand, the Veteran was provided the VA examination for her knees in December 2019. The Veteran's diagnosis was bilateral knee joint osteoarthritis. The Veteran reported attending water aerobics classes and addressing intermittent pain with a heating pad; she avoids the use of NSAIDs, given her medical comorbidities. The Veteran reported flare-ups of the knees, that she described as occasional episodes with changes in the weather or due to over-exertion. Initial range of motion measurements upon examination shows right knee flexion limited to 140 degrees, and right knee extension limited to 0 degrees. Left knee flexion was limited to 135 degrees, and left knee extension was limited to 0 degrees. Range of motion itself did not contribute to functional loss. There was no evidence of pain with weight bearing in either knee and no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions for both knees without additional loss of function and range of motion. Upon examination immediately after repeated use over time, pain significantly limited functional ability, but no diminished range of motion was reported. The Veteran was not examined during a flare-up; however, the VA examiner opined that pain significantly limited functional ability during flare-ups for both knees. Range of motion during flare-ups was estimated as right knee flexion limited to 135 degrees and right knee extension limited to 0 degrees, while left knee flexion is limited to 130 degrees and left knee extension is limited to 0 degrees. Muscle strength testing showed a 5/5 rating for flexion and extension in both knees. Veteran did not have muscle atrophy and no ankylosis was noted. There was no history of recurrent subluxation or lateral instability and there was no joint instability upon testing. Veteran was issued a brace for occasional use but does not use the brace. The examiner concluded that the Veteran's knee disability would likely hinder work demanding strenuous physical labor but would not preclude gainful sedentary employability. See December 2019 C&P Exam. The Board finds that the preponderance of the evidence is against a finding the Veteran is entitled to a rating in excess of 10 percent for limitation of motion for her left knee and right knee. Under DC 5260, to warrant a rating in excess of 10 percent, flexion must be limited to 30 degrees or less. At no time during the appeal period has the Veteran's left or right knee been limited to 30 degrees flexion or less. A higher evaluation under DC 5260 of 20 percent is not warranted unless the record shows leg flexion which is limited to 30 degrees. Under DC 5261, to warrant a rating in excess of 10 percent, extension must be limited to 15 degrees or less. At no time during the appeal period has the Veteran's left or right knee been limited to 15 degrees extension or less. A higher evaluation under DC 5261 of 20 percent is not warranted unless the record shows leg extension which is limited to 15 degrees. Even considering the Veteran's reported functional limitations (e.g., pain going up and down stairs, standing for prolonged periods, pain while driving, pushing against a gas pedal), the Board finds that the preponderance of the evidence is against a finding the Veteran's left knee and right knee disabilities warrants an increased rating for limitation of motion. A rating in excess of 10 percent is not warranted for the left knee or the right knee. 3. Entitlement to a separate 20 percent rating for instability of the right knee under Diagnostic Code 5257 from March 31, 2015. 4. Entitlement to a separate 20 percent rating for instability of the left knee under Diagnostic Code 5257 from March 31, 2015. The Veteran also contends that she is entitled to separate ratings for right and left knee instability during the appeal period. The Board finds that separate ratings for instability of the right and left knee are warranted for the period from March 31, 2015. 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. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Here, the Veteran reported during the July 2016 Board hearing that she experienced what she perceived as instability or "dislocation" or movement of her knees two to three times per month for which she occasionally used a knee brace and cane. During an April 2017 VA examination she reported that her knee popped out of place at times with minimal shifts or movement. During the most recent 2019 VA examination, she reported a sensation like her kneecap "pops" out of place when she shifts laterally. Credible lay evidence can establish instability of the knee. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018) (holding that DC 5257 does not require or favor objective medical evidence over lay evidence). The Board finds the Veteran's reports of the left and right knee instability she experienced during the relevant appeal period to be credible. Thus, the Board finds that this evidence is sufficient to demonstrate moderate lateral instability of the right and left knee. The Board finds that a higher 30 percent rating is not warranted for severe subluxation or lateral instability in either knee during the applicable appeal period because her symptoms and functional impairment did not more nearly approximate severe recurrent subluxation or lateral instability. The Veteran was not found to have subluxation or lateral instability on any examination. She reported using a cane or knee brace, but only occasionally. Moreover, she reported feeling "dislocations" or knee instability only two or three times per month. The Board finds that this does not rise to the level of severe recurrent subluxation or lateral instability under DC 5257. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.