Citation Nr: 21028742 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 14-08 619 DATE: May 11, 2021 ORDER Entitlement to a separate non-compensable rating for shin splints of the left knee effective February 7, 2021, is granted. Entitlement to a separate non-compensable rating for shin splints of the right knee effective February 7, 2021, is granted. Entitlement to an initial rating in excess of 10 percent for left knee strain with patellofemoral pain syndrome is denied. Entitlement to an initial rating in excess of 10 percent for right knee strain with patellofemoral pain syndrome is denied. FINDINGS OF FACT 1. From February 7, 2021, the Veteran manifested functional impairment equivalent to asymptomatic shin splints of the left knee requiring less than 12 consecutive months of treatment under the revised regulatory criteria. 2. From February 7, 2021, the Veteran manifested functional impairment equivalent to asymptomatic shin splints of the right knee requiring less than 12 consecutive months of treatment under the revised regulatory criteria. 3. The most probative evidence does not reach the level of equipoise as to whether the Veteran's left knee strain with patellofemoral pain syndrome manifested functional impairment to the extent that higher staged ratings may be assigned. 4. The most probative evidence does not reach the level of equipoise as to whether the Veteran's right knee strain with patellofemoral pain syndrome manifested functional impairment to the extent that higher staged ratings may be assigned. CONCLUSIONS OF LAW 1. The criteria for entitlement to a separate non-compensable rating for shin splints of the left knee effective February 7, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5262 (as amended February 7, 2021). 2. The criteria for entitlement to a separate non-compensable rating for shin splints of the right knee effective February 7, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.45, 4.59, 4.71a, DC 5262 (as amended February 7, 2021). 3. The criteria for entitlement to an initial rating in excess of 10 percent for left knee strain with patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5256-5263. 4. The criteria for entitlement to an initial rating in excess of 10 percent for right knee strain with patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 2007 to November 2012. He received the Afghanistan Campaign Medal with Two Bronze Service Stars, the Iraq Campaign Medal with One Bronze Service Star, and the Marine Good Conduct Medal, among other decorations. The Board sincerely thanks the Veteran for his honorable military service. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The issues on appeal were previously before the Board in 2018, 2019, and 2020. In July 2020, the Board remanded these matters in order to obtain an adequate VA examination, including compliance with the holding in Correia v. McDonald, 28 Vet. App. 158 (2015). The Veteran underwent a VA examination in February 2021. After reviewing the examination report, the Board finds that it substantially complies with the prior remand directives. As no other issues pertaining to the duty to assist were raised by the Veteran, his representative, or the record, the Board will proceed with a decision on the merits. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Legal Criteria Rating Disabilities Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). During the pendency of this appeal, the rating criteria for evaluating musculoskeletal disorders under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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. The criteria that is more favorable to the Veteran will be applied. Increased Ratings Bilateral Knee Disorder The Board finds that the most probative evidence supports the assignment of separate non-compensable ratings for shin splints of the left and right lower extremities under the revised regulatory criteria effective February 7, 2021. However, no other higher staged ratings are appropriate during the appeal period. The Veteran's left and right knee disorders are currently rated as 10 percent each under 38 C.F.R. § 4.71a, DC 5257. See Rating Decision Codesheet, May 2019. The 10 percent ratings were assigned based on painful, but not otherwise compensable, limited range of motion. 38 C.F.R. § 4.59. Even though limited motion of the knees is typically rated under DC 5260 and 5261, the Board will not herein revise the assigned codes because the Veteran has been diagnosed with patellofemoral pain syndrome. Prior to the regulatory change, DC 5257 provided for a 10 percent rating for slight recurrent subluxation or lateral instability; a 20 percent rating for moderate recurrent subluxation or lateral instability; and a 30 percent rating for severe recurrent subluxation or lateral instability. As of February 7, 2021, under the amended regulations, DC 5257 states that a 30 percent rating is assigned for recurrent subluxation or instability with unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. A 20 percent rating is assigned for either 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 for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device 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 or bracing for ambulation. There are other diagnostic codes potentially applicable to rating knee disorders. Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is assigned for favorable ankylosis in full extension, or in slight flexion between 0 and 10 degrees, a 40 percent rating is assigned favorable ankylosis in flexion between 10 and 20 degrees, a 50 percent rating is assigned for favorable ankylosis in flexion between 20 and 45 degrees, and a 60 percent rating is assigned for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. Under 38 C.F.R. § 4.71a, DC 5258, a 20 percent rating is assigned for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. Under 38 C.F.R. § 4.71a, DC 5259, a 10 percent rating is assigned for cartilage, semilunar, removal of, symptomatic. Under 38 C.F.R. § 4.71a, DC 5260, a 10 percent rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. Prior to the regulatory change, DC 5262 rated impairment of the tibia and fibula, with non-union with loose motion requiring a brace rated as 40 percent; malunion of the tibia and fibula with marked knee or ankle disability rated as 30 percent; malunion of the tibia and fibula with moderate knee or ankle disability as 20 percent; and malunion of the tibia and fibula with mild knee or ankle disability as 10 percent. From February 7, 2021, DC 5262 rates impairment of the tibia and fibula and provides a 40 percent rating for non-union of the tibia and fibula with loose motion, requiring a brace, a 30 percent rating for medial tibial stress syndrome (shin splints) requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics and other conservative treatment, both lower extremities; a 20 percent rating for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics and other conservative treatment, one lower extremity; and a 10 percent rating for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics and other conservative treatment, one or both lower extremities. A non-compensable (0 percent) rating is assigned for shin splints requiring treatment for less than 12 consecutive months, one or both lower extremities. 38 C.F.R. § 4.71a, DC 5262. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Even if a veteran did not have compensable limited motion of the knee under DC 5260 or 5261, a separate rating could be assigned if there was evidence of full range of motion "inhibited by pain." Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Separate ratings may be awarded under DC 5257, 5260, and 5261. See VAOPGCPREC 9-2004. A rating assigned under DC 5260 or 5261 does not preclude, as a matter of law, a separate evaluation under DC 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107, 115 (2017). Turning to the evidence of record, the Veteran underwent a VA examination in January 2013. He reported, among other things, having knee pain while deployed to Iraq in 2009 or 2010. He endorsed "intermittent" pain, both sharp and dull at an 8/10 severity, aggravated by running, squatting, and standing more than eight hours. He did not report having flare-ups of the knees. Range of motion of the bilateral knees was flexion 0 to 140 degrees or greater. The examiner found functional loss described as "interference with sitting, standing, and weight-bearing" and noted that the Veteran exhibited pain or tenderness on palpitation. Joint stability testing was normal and the examiner did not find evidence or a history of recurrent patellar dislocation or subluxation. There was no evidence of a meniscal condition or documentation of ankylosis. The Veteran did not report using any assistive device for his knees, such as a cane, crutches, or brace. The Veteran submitted lay statements with his VA Form 9 in March 2014. He stated, among other things, that he has experienced painful motion of the knees during the rating period. Thus, he contended that he should receive at least a 10 percent rating for each knee based on painful range of motion. The Veteran underwent another VA examination in March 2018. He reported that his knees still give him problems, but that he was able to complete the police academy and was currently working as a state trooper. He endorsed flare-ups of knee pain, stating that his knees hurt if he is on his feet all day and after running. Range of motion was 0 to 115 degrees flexion and 115 to 0 degrees extension in the right knee, and 0 to 120 degrees flexion and 120 to 0 degrees extension in the left knee, with objective evidence of pain in the anterior knee lateral joint space consistent with patellofemoral pain syndrome. The Veteran was able to perform repetitive use testing but manifested additional functional loss to 0 to 110 degrees in the right knee and 0 to 115 degrees in the left knee. The examination was being conducted during a flare-up, and the examiner noted that the Veteran would suffer additional lost range of motion 0 to 110 degrees in the right knee and 0 to 115 degrees in the left knee. The examiner found no evidence of shin splints. Joint stability testing was normal in both knees and there was no evidence of a meniscal condition. However, the examiner did not address passive range of motion. In February 2021, the Veteran underwent an additional VA examination. He endorsed current symptoms of pain, decreased range of motion, grinding, stiffness, and weakness in the bilateral knees, treated by strengthening exercises, heat, ice, over the counter pain creams. He reported that it does not impact his ability to perform occupational functioning and ordinary activities. He endorsed flare-ups of both knees, described as "moderate", lasting a few hours. He denied a history of joint instability or recurrent subluxation, but reported recurrent effusions not requiring drainage. Active range of motion showed 115 degrees flexion endpoint and 0 degrees extension endpoint in both knees, and passive range of motion was the same as active range of motion. There was evidence of pain on active and passive motion, with weightbearing and non-weightbearing, and on rest and non-movement. The Veteran performed repetitive use testing without additional loss in the left knee, but exhibited additional lost motion to 110 degrees flexion endpoint in the right knee. After repeated use over time, the examiner estimated that the Veteran would experience additional lost range of motion to 100 degrees flexion in the right knee and to 110 degrees flexion in the left knee. During flare-ups, the examiner estimated that the Veteran would suffer additional functional loss to 95 degrees flexion in the right knee and 105 degrees flexion in the left knee. There was no evidence of muscle atrophy, joint instability, ankylosis, or a meniscal condition. The examiner diagnosed shin splints with treatment for less than 12 consecutive months, but clarified that there were no current symptoms of shin splints and they did not affect range of motion of the knees or ankles. The Board has reviewed the Veteran's VA medical records. However, such records do not reflect evidence of functional impairment to the extent that higher or separate staged ratings may be assigned for the bilateral knee disorders at any time during the appeal period, other than as discussed herein. 38 C.F.R. § 4.2. After careful review, the Board finds that the most probative evidence is at least in equipoise as to whether separate non-compensable ratings may be assigned for shin splints of the bilateral lower extremities. However, no other higher staged ratings may be granted during the appeal period. In reaching this conclusion, the Board notes that the February 2021 VA examiner documented shin splints of the bilateral lower extremities requiring less than 12 consecutive months of treatment. She described the current symptoms as "none", and observed that they did not affect the knee or ankle range of motion. As such, the Board finds that non-compensable ratings for each knee may be assigned from February 7, 2021, the earliest effective date allowed by the revised regulations. The Board has considered whether a higher rating may be assigned, but finds that the most probative evidence does not reflect that the shin splints required treatment for no less than 12 consecutive months or were unresponsive to shoe orthotics or other conservative treatment. In particular, the Board notes that the March 2018 examiner found no evidence of active shin splints, the February 2021 examiner found no current symptoms attributable to the disorder, and VA treatment records are silent for reports of symptomatic shin splints. Thus, a higher rating for shin splints is not appropriate. The Board has considered whether a higher rating may be assigned under other diagnostic codes applicable to the knee. Regarding range of motion, the Veteran has not exhibited a separately compensable level of functional loss at any time during the rating period. Specifically, the Veteran's range of motion was limited, at its lowest, to 0 to 95 degrees flexion in the right knee and 0 to 105 degrees flexion in the left knee, as documented by the February 2021 VA examiner. This does not meet the required threshold for a separate compensable rating. 38 C.F.R. § 4.71a, DC 5260-61. The Veteran's functional loss during flare-ups and after repeated use over time has also been considered. However, based on the examination and the Veteran's descriptions of functional impairment, the February 2021 VA examiner estimated that the Veteran would not exhibit lost range of motion meeting the threshold for a compensable rating during such periods. See Mitchell, 25 Vet. App. at 43. Therefore, a higher rating may not be assigned on that basis. Additionally, the Board notes that the record does not reflect reports of joint instability, a meniscal condition, or ankylosis of the knee joints, and, thus, higher or separate ratings may not be assigned under those diagnostic codes. 38 C.F.R. § 4.71a, DC 5256-5263. The Veteran's reports of symptoms have been considered. Nevertheless, disability ratings are determined by application of the rating schedule to the evidence of record, which does not reflect functional impairment to the extent that higher staged ratings may be assigned. See 38 C.F.R. §§ 4.2, 4.7. In sum, the Board finds that the most probative evidence supports the assignment of separate non-compensable ratings each for shin splints of the left and right knee, consistent with the evidence of record and applicable regulatory changes effective February 7, 2021. However, no other higher staged ratings may be assigned during the rating period on appeal. See 38 U.S.C. § 5107(a). B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.