Citation Nr: 21030990 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-18 722A DATE: May 20, 2021 ORDER Entitlement to an initial rating higher than 10 percent for left knee patellofemoral syndrome is denied. FINDING OF FACT The Veteran's left knee patellofemoral syndrome is manifest by limitation of flexion of the left leg to 66 degrees at worst shortly after surgery. Less than one month after surgery, the Veteran's flexion of the left knee returned to within normal limitations. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left knee patellofemoral syndrome, also rated as limitation of flexion of the leg, 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1983 to May 2011. This appeal is before the Board of Veterans' Appeals (Board) from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony before the undersigned Veterans Law Judge during a May 2018 travel board hearing. A transcript has been associated with the claims file. In August 2018, the Board remanded the issue on appeal in order to notify the Veteran that he was free to resubmit medical records from Hurlburt Field Air Force Base, as the CD initially submitted was unreadable. While the RO did properly notify the Veteran that he was free to resubmit medical records, which he did in February 2020, the RO never informed the Veteran that the resubmitted CD was still unreadable. Therefore, in September 2020, the Board found that the RO had not substantially complied with the remand directives and the appeal was again remanded to the RO. Following the second remand, the Veteran was notified in September 2020 and October 2020 that he was free to resubmit medical records from the Hurlburt Field Air Force Base or, in the alternative, that he could provide authorization for the RO to request the medical records. The Board finds the RO substantially complied with the remand instructions and an additional remand to comply with the remand directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Veteran did not submit the requested medical records from the Hurlburt Field Air Force Base, nor did he provide the required authorization for the RO to request the medical records, as requested after the previous remand. Therefore, the record is incomplete. While it is unfortunate the CD's submitted could not be opened/read by VA, the Veteran was advised of this fact and given an opportunity to re-submit the records, but he did not do so. The Board has no choice but to decide the claim based on the evidence currently in his file. The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim and the Board's reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence that is not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the November 2020 Supplemental Statement of the Case (SSOC) and are not repeated here in full. The Veteran has not raised any specific duty to notify or duty to assist issues regarding this claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the Veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran contends that he is entitled to a higher rating because he underwent two surgeries on his left meniscus and is in greater pain than contemplated by a 10 percent rating. The Veteran's patellofemoral syndrome is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260, for limitation of flexion of the leg. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this DC was not changed. Under DC 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, DC 5260. 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). The Board has also considered the other DCs pertaining to the knee and leg. The revised rating schedule will be addressed with the associated DCs below. 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). The Veteran was seen in January 2011 for a VA contract medical examination prior to leaving the military. He reported weakness, lack of endurance, difficulty standing/walking and pain in his knees, increasing with prolonged walking. The Veteran denied stiffness, swelling, heat, redness, giving way, locking, fatigability, deformity, tenderness, drainage, effusion, subluxation, and dislocation. He did report flareups as often as four times per week, each time lasting for two hours, which were precipitated by physical activity. During the flare ups, the Veteran did not experience functional impairment or limitation of motion. The diagnosis was bilateral knee patellofemoral pain syndrome. The subjective factors were weakness, lack of endurance and pain in both knees and the objective factors were x-ray of knees within normal limits, ranges of motion within normal limits and tenderness on compression of the patella along the femoral groove. X-rays taken the day of the examination showed no osseous or soft tissue abnormality. See January 2011 VA Examination. The Veteran visited a military treatment facility in January 2011 due to an exacerbation of his long term left knee pain. He reported increased pain and swelling, as well as feeling frequent instability. He was able to straighten his knee and reported at least one instance of sudden buckling. He rated his pain as 8 out of 10. His knee was tender on palpation and did not show a full range of motion but did not show instability when tested. The Veteran was diagnosed with a left knee sprain at that encounter. See January 2011 Military Treatment Facility Records. In February 2011, the Veteran had an MRI of his left knee due to increased exacerbation of pain, including moderate discomfort with palpation. No swelling was noted. The radiologist found a tiny Baker's cyst as well as a large oblique signal abnormality through the posterior horn of the medial meniscus, compatible with an oblique tear, extending into the tibular articular surface and across the entire body of the meniscus. The radiologic impression was an oblique tear posterior horn of the medial meniscus and a tiny Baker's cyst. See February 2011 Military Treatment Facility Records. Following his MRI, the Veteran was seen by an orthopedist. The Veteran reported that he hurt his knee either in physical training or while working on home projects. He reported no knee instability; however, his problem was pain at night after he kept his leg in a bent knee position for too long. He described a fullness in the knee, and he had to change the position of the knee. The Veteran stated that he felt a pop in deep flexion. The Veteran reported that he had not been active since he hurt his knee and had no mechanical symptoms or instability. The orthopedist reported that the Veteran did not have pain in the location of the meniscal tear. The Veteran was prescribed physical therapy. See March 2011 Military Treatment Facility Records. At the Veteran's physical therapy evaluation, he stated that his knee felt worse with the high impact activities of mandatory physical exercise and work at his home, after which he had swelling and discomfort. He reported his pain was general in nature in the knee, but most of the discomfort was in the posterior aspect of the joint. Although the Veteran's MRI showed a meniscal tear, the orthopedist requested the physical therapist treat the Veteran for patellofemoral syndrome as his symptoms were more consistent with that diagnosis. He reported pain at rest at 3-4 out of 10, described as a constant dull ache. His pain went up to 4 with movement. Strength of flexion and extension was 4 out of 5. See March 2011 Physical Therapy Notes. At a later physical therapy appointment, the Veteran reported the only time he really had pain or pressure was if he sat with his leg folded under him. See March 2011 Physical Therapy Notes. The Veteran reported in April 2011 that he believed he was tolerating physical therapy well, and he wasn't having pain as much as it was soreness. A few days later, he stated physical therapy was helping strengthen the muscles surrounding his knee, but it was not helping the internal issues. The Veteran elected to proceed with a diagnostic arthroscopy and presumed debridement of a degenerative medial meniscal tear. See April 2011 Military Treatment Facility Records. In mid-April, the Veteran was discharged from physical therapy back to the care of his physician due to surgery. The Veteran's physical therapist indicated that the Veteran improved 50 percent in his 6 physical therapy visits. See April 2011 Physical Therapy Records. He underwent left knee arthroscopic surgery to repair his torn meniscus in April 2011. On examination under anesthesia, the Veteran's knee had full range of motion, no varus or valgus instability, negative Lachman and posterior drawer tests. Intraoperative findings revealed a degenerated and torn medial meniscus. It was a horizontal cleavage tear extending back to the red-white junction which was debrided back to stable margins. There was also a small amount of central patella grade III chondromalacia fraying which was also debrided. Ten days after surgery, the Veteran's flexion was limited to 120 degrees and his pain was rated at 3 out of 10. He also presented with noted effusion. He was directed to continue exercises as directed by physical therapy. See April 2011 Surgical Report. In May 2011, the Veteran was seen for a one-month follow up after surgery. The provider noted that the Veteran was doing well. He reported 2/10 pain that was continuing to improve. The Veteran had not been to physical therapy as he had been working on it by himself; he did not think he needed physical therapy. See May 2011 Military Treatment Facility Records. Early in July 2014, the Veteran was seen at a military treatment facility for chronic knee pain. He reported that his knee pain was better when ambulating and worse after prolonged episodes of rest. He also reported that his knees pop bilaterally when doing a deep knee bend; the popping was only a noise and did not cause pain. He denied any locking or giving way. He did not report swelling, locking, or sudden buckling. There was tenderness on palpation of the medial left knee slightly superior and posterior to the proximal medial collateral ligament (MCL). Tenderness was observed on ambulation, but no weakness of the left knee was observed. Later in July 2014, the Veteran was treated at a private orthopedic clinic for continuing left knee pain. He reported popping inside of the left knee, localized by pointing at the medial knee. At this initial visit, stability testing was normal, and range of motion testing was normal. An MRI showed a medial meniscus tear. Later that month, the Veteran underwent an arthroscopic partial medial meniscectomy. The clinical findings were: There was a complex tear of the posterior 40 percent of the medial meniscus; there were full thickness articular changes on the retropatellar surface; and the lateral compartment was spared, as were the cruciate ligaments. See July 2014 Operative Report. One week after surgery, the Veteran's flexion was limited to 66 degrees with pain and extension was limited to -5 with pain. His extension was within functional limits. Approximately three weeks after surgery, the Veteran reported his pain to be 1 out of 10. The Veteran's flexion and extension were within normal limits at 135 degrees and 0 degrees respectively, but with pain. The Veteran's strength was not tested one week after surgery but was tested at 4 out of 5 three weeks after surgery. Four weeks after surgery, the Veteran reported his pain to be 3 out of 10. His flexion was greater than normal with pain and extension was limited to -1, within functional limits, with no pain. The Veteran's strength and gait were normal. See August 2014 Physical Therapy Progress Reports. The Veteran attended a travel board hearing in May 2018 before the undersigned. The Veteran testified as to instability in his left knee since he underwent surgery in 2014. He stated that his knee would pop on deep flexion. At times, his knee would give out at that time, but not every time. At times, when getting out of a chair or a small movement similar to that, his pain level would spike to 6 out of 10 from a consistent 3. The Veteran also testified to wearing an over the counter compression knee brace; he did not use any other assistive devices. See May 2018 Hearing Transcript. The Veteran underwent a VA examination in October 2018. At that examination, the Veteran reported that he did not have flare ups but did report functional loss in that his knee has never been the same and that it gives out with the slightest twist. By way of comparison, the Veteran's right knee shows no pain on examination, no pain on weight bearing, no pain on palpation, no evidence of crepitus and all ranges of motion were within normal limits. The Veteran's ranges of motion were all within normal limits on his left knee. Additionally, there was no pain on examination, no pain on weight bearing, no pain on palpation, and no evidence of crepitus. The Veteran was able to perform repetitive testing bilaterally with no loss of range of motion. The doctor was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over time. He also showed normal bilateral muscle strength with no muscle atrophy. The Veteran did not show evidence of ankylosis or joint instability. No degenerative or traumatic arthritis was documented in imaging studies. The examiner noted that the contributing factors to the Veteran's disability were natural deconditioning and aging. The above evidence establishes that the Veteran's knee disability is potentially ratable under several DCs. DC 5256 is not applicable, because the Veteran did not have ankylosis of the left knee during the relevant period. Under DC 5261, extension was, at worst, limited to 5 degrees. See August 2014 Private Treatment Record. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this DC was not changed. This would warrant a non-compensable rating. DCs 5262 and 5263 are not applicable as the Veteran was not diagnosed with any impairment of the tibia or fibula, nor was he diagnosed with genu recurvatum. Additionally, the Veteran does not have x-ray evidence of arthritis in both knees, so DC 5003 is not applicable. The record contains the Veteran's lay assertions that his knee gives out, or feels as if it is going to. See January 2011 Military Treatment Record; July 2014 Military Treatment Facility Records; October 2018 VA Examination. He states that he utilizes an over the counter compression knee brace to stabilize his left knee. See May 2018 Hearing Testimony. Instability is considered under DC 5257. 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 DCs "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. Prior to February 7, 2021, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. See 38 C.F.R. § 4.71a, DC 5257 (2020). As of February 7, 2021, DC 5257 contains two sections for rating other impairment of the knee. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). The first section pertains to recurrent subluxation or instability and the second section pertains to patellar instability. Regarding recurrent subluxation and instability, 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. A 20 percent rating is assigned for 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 30 percent rating is assigned for an unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Regarding patellar instability, 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 warrants a 10 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. 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 warrants a 30 percent rating, which is the highest allowable rating for patellar instability. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, DC 5257, Note (1) (as amended by 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. Note (2). The Veteran is competent to report that he experiences the sensation of weakness in his knees or his knees giving way as this is within the realm of his personal perception. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also English v. Wilke, 30 Vet. App. 347 (2018) (suggesting that lay evidence of knee instability is generally competent). However, the Veteran's testimony regarding the frequency and severity of his knee instability is not persuasive given its inconsistency with the other evidence in the appellate record. While the medical records establish that the Veteran occasionally reported knee instability, giving out and the sensation that something is shifting in his knees to his examining physicians and physical therapists, the Board cannot disregard the contrary medical evidence. The Board is cognizant that objective medical evidence is not categorically more probative than lay evidence when it comes to determining the degree of knee instability the Veteran has experienced during the appellate period. See English, at 353. Yet, in this case, the Veteran's lay testimony and statements describing knee instability are contradicted by the evidence and are not persuasive. This is not an instance where the Board is negating the probative value of the Veteran's lay statements simply because they are unaccompanied by supporting contemporaneous medical evidence, which would be in contravention of Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). To the contrary, the medical evidence of record, (January 2011 Military Treatment Facility Records; April 2011 Surgical Report; July 2014 Surgical Report; October 2018 VA examination), are all inconsistent with and contradict the severity of the Veteran's knee instability as presented in his lay statements and testimony issued during the course of these proceedings. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (finding the Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Accordingly, these statements are afforded little evidentiary weight in this determination. Additionally, there are an equal number of times where the Veteran denies instability as he reports it. See January 2011 VA Examination; March 2011 Military Treatment Facility Records; July 2014 Military Treatment Facility Records. Considering the medical and lay evidence, the Board concludes that the Veteran has not experienced knee instability to a degree sufficient to warrant a separate and additional disability rating for his knee disability under the old rating criteria of DC 5257. Furthermore, the Board finds that a higher rating is not warranted under the new criteria. Regarding recurrent subluxation or instability criteria, the evidence does not show a ligament sprain, incomplete or complete tear, or a repaired complete ligament tear. He has a meniscal tear, as discussed below, which is the cartilage of the knee, not a ligament. See https://www.merckmanuals.com/professional/injuries-poisoning/sprains-and-other-soft-tissue-injuries/knee-sprains-and-meniscal-injuries. Regarding the patellar instability criteria, the evidence does not show that the Veteran has a diagnosed condition involving the patellofemoral complex. DCs 5258 and 5259 are potentially applicable. The Veteran had surgery to repair and debride his meniscus in April 2011 and July 2014. The Veteran reported clicking or popping, locking and pain, as well as feeling as though his knee would give out. However, there is no evidence of record that the Veteran's meniscus or semilunar cartilage was or is dislocated. Therefore, DC 5259 is more applicable, and the Veteran could potentially be assigned a 10 percent rating. Evaluation of a knee disability under DC 5260 does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under DC 5259. The critical element in permitting the assignment of several ratings under various DCs 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, 261-62 (1994). DCs 5259 and 5260 both rate based on limitation of motion and knee pain, as a cause of limitation of motion. In the case of DC 5259, complications may arise from the repair of a torn meniscus causing limitation of motion due to pain. In the case of DC 5260, such limitation of motion is encompassed by the limitation of flexion, including limitation of motion due to pain. The DCs both rate on knee pain and limitation of motion due to pain. See DeLuca; 38 C.F.R. §§ 4.40, 4.45, 4.59. Were the Board to grant separate ratings under both DCs 5259 and 5260, the Veteran would receive compensation under two different codes for the same manifestations of pain and limitation of motion, which would constitute impermissible pyramiding. 38 C.F.R. § 4.14. The Board finds that, in the circumstances of this case, ratings under both DCs 5259 and 5260 based primarily on limitation of motion and pain would constitute pyramiding as it would provide two separate ratings for the same symptomatology. To be clear, the limitation and pain that support a 10 percent disability rating under DC 5259 are the same symptoms that support a 10 percent rating under DC 5260. As ratings for both DCs are the same, a change in the DC would not benefit the Veteran. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for patellofemoral syndrome. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and instability/giving out. See May 2018 Hearing Transcript; October 2018 VA Examination. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the knee gives out with a slight twist would not result in limitation of motion more nearly approximating flexion limited to 30 degrees, especially when taken with normal stability and range of motion testing. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for patellofemoral syndrome. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Parker N. Reynolds, 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.