Citation Nr: 21030556 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-46 754 DATE: May 19, 2021 ORDER Entitlement to a rating in excess of 10 percent for right knee patellofemoral pain syndrome, osteochondral defect and degenerative joint disease is denied. Entitlement to a rating in excess of 10 percent prior to January 13, 2021 and a compensable rating thereafter for right knee lateral instability is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's right knee patellofemoral pain syndrome, osteochondral defect and degenerative joint disease were manifested by no more than degenerative arthritis with x-ray evidence without limitation of motion warranting an evaluation in excess of 10 percent. 2. For the period prior to January 13, 2021, the Veteran's right knee lateral instability was manifested by no more than slight instability. 3. For the period beginning January 13, 2021 and thereafter, the Veteran's right knee lateral instability did not warrant a compensable rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for right knee patellofemoral pain syndrome, osteochondral defect and degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for entitlement to a rating in excess of 10 percent prior to January 13, 2021 and a compensable rating thereafter for right knee lateral instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2002 to September 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim was previously remanded in August 2018 and November 2020 Board decisions. A remand by the Board imposes a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Upon review, the Board finds that the remand directives have been complied with. General Rating Principles Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be considered in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. A critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. In evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca,8 Vet. App. 202 at 206. However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Where functional loss is alleged due to pain upon motion, the provisions of 38C.F.R. §§4.40and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). There is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain, without objective functional loss, does not require that a higher rating be assigned. The assignment of highest rating for pain without other objective findings would lead to potentially 'absurd results.' Id. at 43. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Painful motion is an important factor of joint disability and painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). In addition, assignment of a disability rating should take into account consideration of limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Rating Principles- Right Knee The Veteran is currently service connected with a rating of 10 percent prior to January 13, 2021 and a non-compensable rating thereafter for right knee lateral instability under diagnostic code 5257 and rating of 10 percent for right knee patellofemoral pain syndrome, osteochondral defect and degenerative joint disease under diagnostic code 5003-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Under diagnostic code 5257 a rating of 10 percent is warranted for slight recurrent subluxation or lateral instability. A rating of 20 percent is warranted for moderate recurrent subluxation or lateral instability. A rating of 30 percent is warranted for severe recurrent subluxation or lateral instability. 30 percent is the highest rating under diagnostic code 5257. The terms "slight, "moderate" and "severe" are not defined in the Rating Schedule. Thus, rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Under diagnostic code 5260, a rating of 10 percent is warranted when flexion is limited to 45 degrees; a rating of 20 percent is warranted when flexion is limited to 30 degrees and a rating of 30 percent is warranted when flexion is limited to 15 degrees. There are no higher ratings under this diagnostic code. Diagnostic code 5003 provides that when the limitation of motion of the specific joints or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint of group of minor joints affected by limitation of motion to be combined, not added under diagnostic code 5003. Analysis 1. Entitlement to a rating in excess of 10 percent for right knee patellofemoral pain syndrome, osteochondral defect, and degenerative joint disease. 2. Entitlement to a rating in excess of 10 percent prior to January 13, 2021 and a compensable rating thereafter for right knee lateral instability. The Veteran sought an increased rating for his right knee disability in December 2013 and subsequently perfected his appeal with a December 2015 Form 9. The Veteran's right knee lateral instability was service connected with a rating of 10 percent, effective March 29, 2019. Subsequently, the Veteran's right knee lateral instability was reduced to a noncompensable rating beginning January 13, 2021. Notably, the change in the Veteran's right knee lateral instability rating did not result in a reduction or discontinuance of compensation payments, as the Veteran's combined disability rating remained the same. 38 C.F.R. § 3.105(e). In a December 2015 statement, the Veteran contends that he is entitled to a rating in excess of 10 percent for his right knee because there are times when his knee is in too much pain to play with his children or do anything other than lying down. He also asserted that it impacts his mobility. Notwithstanding the Veteran's contentions, the evidence of record does not establish entitlement to a rating in excess of 10 percent for right knee patellofemoral pain syndrome, osteochondral defect, and degenerative joint disease or entitlement to a rating in excess of 10 percent prior to January 13, 2021 and a compensable rating thereafter for right knee lateral instability. In February 2013 the Veteran reported worsening right knee pain and requested to follow up with the orthopedic clinic. May 2013 VA treatment records note complaints of right knee pain with additional instability. December 2013 VA treatment records note complaints of worsening right knee pain. January 2014 VA treatment records note that the Veteran attended three sessions at orthopedic clinic for right knee pain. On examination the Veteran was noted to have excellent range of motion but tenderness to palpation over joint line. The Veteran underwent a right knee injection and was advised to use an ice pack for 20 minutes when he arrived home. The Veteran was afforded a VA examination in April 2014. The examiner noted diagnoses of patellofemoral pain syndrome, medial meniscus tear and osteochondral defect. The Veteran endorsed flare-ups and reported that his flare-ups impact his ability to engage in running, prolonged weight bearing and going up and down stairs. The Veteran reported that all of these activities caused his knee pain to flare for several days. Upon examination the Veteran demonstrated right knee flexion to 140 degrees or greater with pain at 120 degrees and right knee extension to zero degrees with pain at 20 degrees. The Veteran remained able to perform repetitive use testing, with no reduced flexion or extension but was noted to have some functional loss with pain on movement as well as interference with sitting, standing and weight bearing. There was no evidence of tenderness to palpation and the Veteran maintained 5/5 muscle strength with flexion and extension. Additionally, there was no evidence of instability or subluxation. The Veteran was noted to occasionally use a brace and a cane. Diagnostic imaging noted evidence of arthritis. Finally, the examiner noted that the Veteran's knee condition impacts the Veteran's ability to perform active and sedentary labor that involves kneeling, stooping, prolonged weight bearing and going up and down stairs. February 2015 VA treatment records note that the Veteran rated his knee pain as a six out of ten. The Veteran was afforded another right knee VA examination in March 2019. Subjectively, he reported flare-ups which occur all the time with simple activities and characterized his flare-ups as constant, moderate to severe. The Veteran also endorsed symptoms of functional loss including severe pain, weakness which limits knee moving and affects his work and daily activities. Upon examination he demonstrated flexion from 35 to 100 degrees and extension from 100 to 35 degrees. The examiner noted that severe pain and stiffness impacted range of motion with pain on flexion and extension. There was also pain with weight bearing, and objective evidence of localized tenderness or pain on palpation with tenderness on the patellar ligament, tendon and surrounding patella, medial and lateral joint lines. There was also objective evidence of crepitus. The Veteran remained able to perform repetitive use testing, with no additional functional loss or range of motion. However, pain, fatigue, weakness, lack of endurance and incoordination significantly limited the Veteran's ability to function with repeated use over a period of time as well as with flare-ups. Even during a flare-up, the Veteran retained flexion from 35 to 100 degrees and extension from 100 to 35 degrees. With respect to muscle strength the Veteran demonstrated 4/5 strength with flexion and extension. The examiner noted that the reduced muscle strength was entirely due to the Veteran's right knee disabilities. There was no evidence of muscle atrophy or ankylosis. A history of right knee effusions as well as a meniscus condition with meniscal tear, frequent episodes of joint locking, pain, and effusion was noted. Additionally, there was evidence of some lateral instability. The Veteran was noted to use an unloading hinged brace on a regular basis. Finally, degenerative arthritis was confirmed by x-ray imaging. The Veteran was afforded another VA examination in January 2021. He noted that his condition had worsened since onset. The Veteran asserted current complaints of right knee pain, stiffness, and tightness in the right knee. He characterized his pain as a sharp stabbing pain; he also complained of stiffness and tightness on movement. The Veteran reported flare-ups which result in a decreased ability to walk, stand, squat, kneel and climb. On examination the Veteran demonstrated flexion from zero to 85 degrees and extension from 85 degrees to zero. Range of motion was noted to cause functional loss such as decreased ability to bend; further pain was noted on flexion and extension. There was evidence of tenderness or pain on palpation over the right knee joint, moderate and consistent with the Veteran's service-connected right knee disabilities. There was also evidence of pain with weight bearing and crepitus. The Veteran was able to engage in repetitive use testing, with flexion from 0 to 80 degrees and extension from 80 to 0 degrees. Functional loss after repetitive use included lack of endurance. Pain and lack of endurance also significantly limited the Veteran's functional ability with repeated use over time, nonetheless the Veteran maintained flexion to 80 degrees and extension from 80 degrees to 0. While the examination was not being conducted during a flare-up, the examiner found that the examination was medically consistent with the Veteran's statements describing functional loss during flare-up. Pain and lack of endurance were noted to significantly limit functional ability with flare-ups. Nonetheless the Veteran maintained 5/5 muscle strength with flexion and extension. There was no evidence of atrophy or ankylosis and there was no evidence of instability. The Veteran was noted to have a history of meniscal tear with frequent episodes of joint locking and pain and the Veteran reported use of a brace regularly for support due to his service-connected right knee disabilities. Arthritis was confirmed by x-ray. With respect to functional loss, the examiner noted that as a result of the Veteran's right knee disability the Veteran had decreased ability to run more than infrequently, decreased ability to walk or stand more than 20 to 30 minutes without a break, decreased ability to climb more than infrequent to occasional or squat or knee more than infrequent to occasional. There was objective evidence of pain in non-weight bearing, and the Veteran's passive range of motion was the same as his active range of motion. Ultimately, the preponderance of the evidence of record does not establish entitlement to a rating in excess of 10 percent for the Veteran's right knee patellofemoral pain syndrome, osteochondral defect, and degenerative joint disease. While the evidence shows one instance of significantly reduced flexion and extension, the evidence more frequently notes range of motion well above 60 degrees, which is the minimal flexion for a compensable rating under diagnostic code 5256. Moreover, the Veteran was noted to have no less than 4/5 muscle strength and retained the ability to engage in repetitive use testing, with minimal functional loss. The Veteran's right knee has been consistently noted to contain arthritis, confirmed by x-ray. Based on the evidence of record, the severity of the Veteran's right knee symptoms do not warrant a compensable rating under limitation of motion diagnostic codes; however because the Veteran's right knee is noted to have arthritis, a rating of 10 percent but no higher is warranted in accordance with diagnostic code 5003. Similarly, the preponderance of the probative evidence does not establish entitlement to a rating in excess of 10 percent for right knee instability prior to January 13, 2021 or a compensable rating beginning January 13, 2021 and thereafter. Notably, while March 2013 VA treatment records note some right knee instability and the Veteran was noted to have instability during his March 2019 VA examination, the Veteran's March 2014 VA examination and the January 2021 VA examination noted no instability. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Here, the evidence of instability is outweighed by the probative evidence that shows the Veteran remained able to perform repetitive use testing and had no less than 4/5 muscle strength with flexion and extension. The probative evidence does not establish entitlement to a rating in excess of 10 percent prior to January 13, 2021 or a compensable rating beginning January 13, 2021 and thereafter. The Board has considered whether a higher rating for the Veteran's right knee disability is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59, and concluded that such is not warranted. The fact that he may have had pain in range of motion testing does not warrant a higher evaluation. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (discounting the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially absurd results). The evidence shows limitation of motion as described above more closely approximates the evaluation provided by the RO than the higher evaluation sought by the Veteran during the entire period on appeal. The Court has also established that flare-ups must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flare-ups has not been particularly clear. However, the Board finds overall wisdom in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, consideration has been given the reports of flare-ups during the March 2014, April 2019, and January 20201 VA examinations. Importantly, the VA examiners reviewed the Veteran's medical records, including the frequency and severity of flare-ups, flare-ups of the knee manifesting as extreme pain when bending, lifting objects, or doing anything that requires movement of the back, and post-test range of motion measurements. The reported flare-up is not shown to additionally limit function in a quantifiable way. The contemporaneous treatment records contain little, if any, findings pertaining to flare-ups much less information regarding the Veteran's functional ability during a flare-up or after repeated use over time. The medical and lay statements do not indicate that the flare-ups are so severe as to approximate the higher rating criteria more nearly. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5242; Mitchell, 25 Vet. App. at 44; Correia, 28 Vet. App. at 169-170; Sharp, 29 Vet. App. at 33. For the period on appeal, the VA examination reports indicate that the Veteran has significantly greater movement than the motion loss contemplated for the 10 percent rating criteria for DC 5256. The Veteran does not specifically identify more motion loss suggestive of right knee range of motion on flexion to greater than 60 degrees. 38 C.F.R. § 4.71a, DC 5260. (Continued on the next page) Finally, the Board notes that the VA regulations with respect to the Schedule of Ratings for the musculoskeletal system have been amended, effective February 7, 2021. Even considering the amended rating criteria, the preponderance of the evidence of record does not establish entitlement to a rating in excess of 10 percent for right knee patellofemoral pain syndrome, osteochondral defect, and degenerative joint disease or entitlement to a rating in excess of 10 percent prior to January 13, 2021 and a compensable rating thereafter for right knee lateral instability. Thus, the Board finds that the preponderance of the evidence indicates that the claim for increased ratings for the right knee must be denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.