Citation Nr: 21030437 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-32 666 DATE: May 18, 2021 ORDER A disability rating in excess of 10 percent for left knee patellofemoral pain syndrome (previously rated as tendonitis) is denied. A disability rating in excess of 10 percent for right knee patellofemoral pain syndrome (previously rated as tendonitis) is denied. FINDINGS OF FACT 1. For the entire rating period on appeal, the Veteran's left knee disability has not been productive of ankylosis, dislocation or removal of the semilunar cartilage, recurrent subluxation or lateral instability, flexion limited to 30 degrees or less, extension limited to 10 degrees or more, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. 2. For the entire rating period on appeal, the Veteran's right knee disability has not been productive of ankylosis, dislocation or removal of the semilunar cartilage, recurrent subluxation or lateral instability, flexion limited to 30 degrees or less, extension limited to 10 degrees or more, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. CONCLUSIONS OF LAW 1. The criteria for an award of a disability rating in excess of 10 percent for patellofemoral pain syndrome of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5263. 2. The criteria for an award of disability rating in excess of 10 percent for patellofemoral pain syndrome of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1973 to November 1977, and from March 2003 to July 2003. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See July 2020 supplemental statement of the case. Higher Ratings Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating 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 examination. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (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, for the applicable diagnostic codes, 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. 1. Entitlement to a disability rating in excess of 10 percent for left knee patellofemoral pain syndrome 2. Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral pain syndrome The Veteran contends that he is entitled to higher ratings for the left and right knee disabilities because of the increased pain that he feels in the knees. The Veteran's left and right knee disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the left knee disability or the right knee disability. Alternative or higher ratings are available for ankylosis, dislocation or removal of the semilunar cartilage, recurrent subluxation or lateral instability, flexion limited to 30 degrees or less, extension limited to a compensable level, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. The Board finds the evidence weighs against such manifestations. In this case, the most severe limitation of knee flexion recorded during the appeal period was recorded during the April 2016 VA examination where the Veteran's left knee flexion was to 70 degrees and right knee flexion was to 75 degrees, to include as due to pain and after repetitive use testing. All other examinations, even examinations that estimated loss after repeated use over time indicated a greater range of motion, and sometimes a nearly normal range of motion in the right and left knee. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, fatigability, and difficulty a kneeling and sitting or arising from those positions. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating left or right knee flexion limited to 30 degrees. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). In this case, the Veteran's right and left knee have not been productive of symptoms of other relevant knee disabilities. Neither the Veteran's treating physicians nor the VA examiners have found any evidence of ankylosis, recurrent subluxation or lateral instability, limitation of extension to 10 degrees, dislocation or removal of the semilunar cartilage, malunion or nonunion of the tibia and fibula, or genu recurvatum. Though he does have some degeneration of his right meniscus, the record does not contain evidence of the removal or dislocation of this cartilage. Consequently, the Board finds that the Veteran does not have additional conditions for which VA provides alternate compensation. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5258-5259. As discussed above, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended. From February 7, 2021, Diagnostic Code 5257 is evaluated under either recurrent subluxation or instability, or patellar instability, which require findings of either a ligament rear or sprain, or diagnosed condition involving the patellofemoral complex. However, the evidence of record demonstrates that the left and right knee disabilities have not been productive of patellar instability or recurrent subluxation or instability, to include ads due to either a ligament rear or sprain, or diagnosed condition involving the patellofemoral complex. Therefore, the assignment of a disability rating under Diagnostic Code 5257 for either knee in accordance with the revised criteria is not warranted for the period from February 7, 2021. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claims for disability ratings in excess of 10 percent for the left and right knee disabilities. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. However, as the preponderance of the evidence is against the claims, that doctrine does not apply. The appeal is denied. J. Ragheb Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven H. Johnston, 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.