Citation Nr: 21040362 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-03 840 DATE: July 3, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right knee patellar tendonitis is denied. Entitlement to an initial rating in excess of 10 percent for left knee patellar tendonitis is denied. FINDINGS OF FACT 1. Right knee patellar tendonitis does not manifest as compensable limitations of flexion or extension, recurrent subluxation, or lateral instability, dislocated or symptomatic post-removal semilunar cartilage, genu recurvatum, or malunion of tibia or fibula, and is not ankylosed. 2. Left knee patellar tendonitis does not manifest as compensable limitations of flexion or extension, recurrent subluxation, or lateral instability, dislocated or symptomatic post-removal semilunar cartilage, genu recurvatum, or malunion of tibia or fibula, and is not ankylosed. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for right knee patellar tendonitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5256-63. 2. The criteria for an initial disability rating in excess of 10 percent for left knee patellar tendonitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5256-63. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty service in the United States Air Force from June 2004 to May 2008. The Veteran also had Air Force Reserve active duty for training and inactive duty training through 2013. In February 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Veteran's claims file contains a copy of the hearing transcript. The Board remanded these matters in March 2021 for the issuance of a supplemental statement of the case (SSOC). There has substantial compliance with the Board's remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998) INITIAL RATINGS The Veteran asserts that the initial disability ratings assigned to his service-connected knee disabilities do not contemplate the severity of his respective symptoms. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several Diagnostic Codes; however, the critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. In evaluating 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). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate 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. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, 8 Vet. App. 202. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable Diagnostic Code. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Musculoskeletal VA examinations, to be adequate, must address particular issues when are where that are practicable and medically possible to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. See Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Right knee patellar tendonitis Left knee patellar tendonitis The VA Regional Office (RO) has rated these two disabilities under 38 C.F.R. § 4.71a, Diagnostic Code 5260. Disabilities of the knee and leg are generally rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263. Prior to February 7, 2021, under Diagnostic Code 5257 for recurrent subluxation or lateral instability, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of the knee; a 20 percent rating is warranted for medical evidence showing that the recurrent subluxation or lateral instability can be characterized as moderate; and a 30 percent rating is warranted for recurrent subluxation or lateral instability which medical evidence discloses can be characterized as severe. The rating criteria pertaining to Diagnostic Code 5257 were revised effective February 7, 2021. A 10 percent rating is assigned for 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; a 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker; and a 30 percent rating is assigned for 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. Under Diagnostic Code 5260 for limitation of flexion, a noncompensable rating is assigned for flexion limited to 60 degrees; a 10 percent rating is assigned for flexion limited to 45 degrees; a 20 percent rating is assigned for flexion limited to 30 degrees; and a 30 percent rating is assigned for flexion is limited to 15 degrees. Under Diagnostic Code 5261 for limitation of extension, a noncompensable rating is assigned for extension limited to 5 degrees; a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent rating is assigned for extension limited to 20 degrees; a 30 percent rating is assigned for extension is limited to 20 degrees; a 40 percent rating is assigned for extension is limited to 30 degrees; and a 50 percent rating is assigned for extension is limited to 15 degrees. Separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Diagnostic Code 5256 pertains to ratings for ankylosis of a knee. Diagnostic Code 5262 applies to ratings for impairment of the tibia and fibula. Diagnostic Code 5258 applies to a dislocated semilunar cartilage. Diagnostic Code 5259 applies to removal of the semilunar cartilage. Diagnostic Code 5263 applies to rating genu recurvatum. The rating criteria pertaining to Diagnostic Code 5262 were revised effective February 7, 2021. However, as those Codes are not applicable in this matter, and the February 7, 2021 effective revision does not require further discussion. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court held that under 38 C.F.R. § 4.71, a separate evaluation may be assigned for meniscal problems under Diagnostic Codes 5258 or 5259, even when ratings are in effect under Diagnostic Codes 5257 and 5261. The Board must also consider functional impairment with respect to the baseline range of motion (ROM) noted during clinical evaluation. English v. Wilkie, 30 Vet. App. 347 (2018) (the Board must adequately explain how it considered functional loss due to pain, including during flare-ups). In March 2012, the Veteran reported for a VA examination. A clinician reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriate evaluation. The Veteran reported that he developed discomfort under the patellae in approximately 2006 or 2007. The Veteran reported flare-ups, namely increased restrictions when he engages in repetitive activities, such as bicycling. The Veteran had right knee flexion to 140 degrees or greater without pain and right knee extension to zero degrees without pain. Likewise, the Veteran had left knee flexion to 140 degrees or greater without pain and left knee extension to zero degrees without pain. The Veteran was able to perform bilateral repetitive-use testing (of at least three repetitions), without additional loss in range of motion. Bilaterally, range of motion did not contribute to functional loss. The clinician indicated that there was no tenderness or pain to palpation for either the joint line of the soft tissues of the bilateral knees. Bilaterally, the clinician reported neither functional loss nor functional impairments. The Veteran retained normal bilateral knee strength (5/5) and there was no evidence of muscle atrophy, ankylosis, recurrent subluxation, or meniscal conditions. The clinician indicated that the Veteran had not had and did not have bilateral shin splits (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or other tibial and/or fibular impairment. The Veteran conveyed that he did not use assistive devices as a normal mode of locomotion. X-ray imaging did not reveal the presence of arthritis or patellar subluxation in either knee. The clinician opined that neither right knee patellar tendonitis nor left knee patellar tendonitis impacted the Veteran's ability to work. In his August 2013 NOD, the Veteran wrote that he experienced varying degrees of pain in his knees depending on what he does. The Veteran indicated that he had reported to the VA clinician that he experienced bilateral knee pain upon load bearing; standing up from a squat; kneeling; and rising from a low chair. And, bilateral knee pain is present during and after physical activities, making it difficult to perform certain household chores and work duties. In an August 2013 VA systems review report, a clinician reported that the Veteran was engaged in physical therapy (PT). The clinician reiterated the current diagnoses and x-ray findings. In his January 2015 substantive appeal (VA Form 9), the Veteran reiterated the contentions that he made in his NOD. At the February 2019 Board hearing, the Veteran testified that both of his knees produced constant pain. The Veteran also indicated that his right knee occasionally buckles. And, the Veteran expressed his dismay at not being able to use his bicycle due to bilateral knee pain, adding that he was an avid bicyclist. In a February 2019 lay statement, the Veteran's spouse wrote that the Veteran has suffered from knee pain for at least 12 years. As a victim of rheumatoid disease, the spouse noted that she "recognizes" pain on the Veteran's face. She reported that the Veteran found even kneeling is painful. A review of the Veteran's VA treatment records discloses that he complained of bilateral knee pain. The Veteran's treatment included PT through 2020. In January 2020, the Veteran endorsed level 5 pain and indicated that he had difficulty traversing stairways. In February 2020, the Veteran reported for a VA examination. The Veteran reported flare-ups resulted in an inability to run; cycle; kneel; squat (without pain); morning pain; and pain and stiffness with prolonged sitting. The Veteran had right knee flexion to 140 degrees or greater without pain and right knee extension to zero degrees without pain. Likewise, the Veteran had left knee flexion to 140 degrees or greater without pain and left knee extension to zero degrees without pain. Bilaterally, the clinician indicated there was no pain with weight bearing and no evidence of crepitus. The Veteran was able to perform bilateral repetitive-use testing (of at least three repetitions), without additional loss in range of motion. Based upon interview, the clinician indicated that pain significantly limited functional ability with repeated use over a period of time. Based upon interview, the clinician also translated losses during flare-ups into 10 to 15 degrees of flexion bilaterally. The Veteran retained normal bilateral knee strength (5/5) and there was no evidence of muscle atrophy, ankylosis, recurrent subluxation, or meniscal conditions. The clinician reported normal joint stability results at all indices, bilaterally. The clinician indicated that the Veteran had not had and did not have bilateral shin splits (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or other tibial and/or fibular impairment. X-ray imaging did not reveal the presence of arthritis in either knee. The clinician opined that the Veteran's right knee patellar tendonitis and left knee patellar tendonitis functionally impacted the Veteran's ability to perform any type of occupational task. Specifically, the clinician reported that these disabilities would impair repetitive squats, kneeling, crawling, running, and cycling. Lastly, the clinician indicated that passive range of motion testing; non-weight bearing testing; and contralateral joint testing could be performed (due to physiology or impracticality). In May 2020, the Veteran's representative submitted a post-remand brief. In pertinent part, this representative wrote that an application of governing law to the medical evidence and lay evidence of record should results in increased initial ratings for both service-connected right knee patellar tendonitis and left knee patellar tendonitis. The Veteran believes that his service-connected right knee patellar tendonitis and left knee patellar tendonitis each warrant initial ratings in excess of 10 percent. The Veteran is certainly competent to report discernable symptoms. The Board has considered this lay evidence (to include the lay account of the Veteran's spouse) carefully. 38 C.F.R. § 3.159(a)(2). The evidence of record does not disclose that either the Veteran or his spouse possess the medical expertise to render an opinion as to the clinical severity of any complex medical matter, to include right knee patellar tendonitis and left knee patellar tendonitis. 38 C.F.R. § 3.159(a)(1). The Board finds that the competent clinical evidence of record is entitled to considerable probative weight. The Veteran's right knee patellar tendonitis and left knee patellar tendonitis are rated at 10 percent under Diagnostic Code 5260. As already noted, Diagnostic Code 5260 provides for a 10 percent rating for flexion limited to 45 degrees; a 20 percent rating for flexion limited to 30 degrees; and a 30 percent rating for flexion limited to 15 degrees. At worst, the medical evidence shows that right and left knee flexion are both limited to 140 degrees. Such a limitation is noncompensable under Diagnostic Code 5260. Turning to Diagnostic Code 5261, a 10 percent rating is assigned for extension limited to 10 degrees and a 20 percent rating is assigned for extension limited to 20 degrees. At worst the medical evidence shows left knee extension is limited to zero degrees. Such a limitation is noncompensable under Diagnostic Code 5261. As the evidence fails to disclose evidence of any form of arthritis, Diagnostic Codes 5003 and 5010 are not applicable. Likewise, no examination or treatment records found evidence of ankylosis, subluxation or instability, genu recurvatum, tibia or fibula impairment, or dislocated or symptomatic post-removal semilunar cartilage. The Board considered the Veteran's report of occasional knee "buckling" when a knee would "give out." The Board interprets this report as an inability of the knee to occasionally support weight, but the medical evidence does not support instability of the joint. Consequently, separate compensable ratings under Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262, or 5263 are not for application. The Board has considered whether higher ratings are warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45; see also DeLuca, 8 Vet. App. 202. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The February 2020 VA clinician reported functional loss after repetitive use and during flare-ups. In each instance, the clinician indicated a loss of 10 to 15 degrees bilaterally. Consequently, having eliminated all other possibilities, the Veteran's service-connected right knee patellar tendonitis and left knee patellar tendonitis each warrant an initial 10 percent rating under the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.