Citation Nr: 21041003 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-10 473 DATE: July 7, 2021 ORDER Entitlement to an increased disability rating of 20 percent, but no higher, for right knee instability from patellofemoral pain syndrome is granted. REMANDED Entitlement to a rating in excess of 10 percent for right knee limitation of flexion is remanded. Entitlement to a rating in excess of 30 percent for right knee limitation of extension from April 18, 2014 to March 2, 2018 is remanded. Entitlement to a rating in excess of 10 percent for left knee limitation of extension is remanded. FINDING OF FACT The Veteran's right knee instability from patellofemoral pain syndrome has been characterized by moderate symptoms; severe instability or subluxation has not been demonstrated. CONCLUSION OF LAW The criteria for an increased 20 percent rating for right knee instability from patellofemoral pain syndrome have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71A, Diagnostic Code (DC) 5257 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from April 1991 to June 1996. In April 2018, the Veteran testified at a Board of Veterans' Appeals (Board) videoconference hearing before the undersigned. A transcript of the hearing is of record. In March 2019, the Board, in pertinent part, denied the claims listed above. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, while the case was pending at the Court, the parties signed a Joint Motion for Partial Remand (JMPR) requesting that the Court vacate the Board's decision to the extent that it denied those issues. The Court granted the JMPR in a January 2020 order. Before the appeal was returned to the Board, the Agency of Original Jurisdiction (AOJ) afforded the Veteran additional VA examinations in December 2019 and January 2020. In August 2020, however, the Board determined that these examinations contained deficiencies which required the matters to be remanded for further development. The appeal now returns to the Board for review. 1. Entitlement to a rating in excess of 10 percent for right knee instability from patellofemoral pain syndrome The Veteran contends that he is entitled to a rating in excess of 10 percent for right knee instability from patellofemoral pain syndrome. For the following reasons, the Board finds that an increased 20 percent rating is warranted under the version of DC 5257 in effect prior to February 7, 2021. The Veteran's symptoms are evaluated 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. For claims filed prior to February 7, 2021, DC 5257 provides that knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71A, DC 5257. For claims filed on or after February 7, 2021, DC 5257 provides that knee impairment with recurrent subluxation or lateral instability is rated 10 percent for a 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; 20 percent for either a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability and a medical provider prescribes a brace and/or an assistive device for ambulation or an unrepaired or failed repair of a complete ligament tear causing persistent instability and a medical provider prescribes either an assistive device or brace for ambulation; and 30 percent for an unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and a brace for ambulation. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71A, DC 5257). For claims filed on or after February 7, 2021, DC 5257 also provides that a knee impairment with patellar instability is rated 10 percent for a diagnosed condition involving the patellofemoral complex with recurring instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane or walker; 20 percent for a diagnosed condition involving the patellofemoral complex with recurring instability after surgical repair that requires a prescription from a medical provider for a brace, cane or walker; and 30 percent for a diagnosed condition involving the patellofemoral complex with recurring instability after surgical repair that requires a prescription from a medical provider for a brace, and either a cane or a walker. Id. Lastly, for claims filed on or after February 7, 2021, DC 5257 provides that a knee impairment resulting in medial tibial stress syndrome (MTSS), or shin splints is rated 0 percent for treatment less than 12 consecutive months, one or both lower extremities; 10 percent for treatment lasting at least 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment for one or both lower extremities; 20 percent for treatment lasting at least 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity; and 30 percent for treatment lasting at least 12 consecutive months and unresponsive to surgery and either shoe orthotics or other conservative treatment for both lower extremities. Id. (The Veteran has been awarded numerous other evaluations for knee impairment, three of which are addressed in the Remand section below. Here, the Board is limiting its analysis to his right knee instability.) The period on appeal stems from the Veteran's 2012 claim. He has since been afforded numerous VA examinations, which reflect inconsistent findings regarding the severity of the Veteran's right knee instability. A VA examination report from April 2014 notes instability but does not include an opinion as to its severity; March 2018 and December 2019 examination reports include negative findings regarding instability; and a January 2020 examination report notes a history of instability but seems to indicate that the Veteran was not suffering from symptoms at that time. In September 2020, the Veteran underwent another VA examination. The report again reflects the examiner's findings that the Veteran was not experiencing lateral instability. However, in a subsequent addendum opinion in October 2020, the examiner explained that, after reviewing the Veteran's medical history, it was "more likely that the [his] right knee instability wound exhibited a moderate degree of instability" over the course of his appeal. After the AOJ sought clarification, the examiner opined again in November 2020 that he believed the Veteran's instability was, overall, "moderate" in degree. The Board finds the VA examiner's October 2020 and November 2020 addendum opinions to be the most probative evidence in the record regarding the overall severity of the Veteran's right knee instability. Notably, the examiner provided a detailed description of the Veteran's medical history, noting that the "pathophysiology of degenerative arthritis of any particular joint" would "undoubtedly lead to" instability over time. The examiner admitted that his opinion involved some speculation but nonetheless estimated that the overall severity of the Veteran's instability was "moderate" throughout the appeal period. When asked to clarify his findings and reconcile them with prior examination reports indicating less severe symptoms, the examiner reaffirmed that he believed the degree of instability was "moderate." The Board has little evidentiary reason to doubt the examiner's conclusions in this regard. By contrast, the prior VA examination reports of record included no substantiate analysis regarding the nature or severity of the Veteran's instabilityat most, the examiners simply checked boxes to indicate whether instability was present. These prior findings are not probative, particularly when compared with the detailed addenda discussed above. Accordingly, the Board will defer to the findings of the VA examiner and finds that an increased 20 percent rating is warranted under the pre-amendment criteria of DC 5257. The Board further finds that there is no probative evidence that the Veteran's right knee instability has ever been "severe" in degree so as to warrant a 30 percent rating under the old version of DC 5257. As mentioned above, prior to October 2020 the VA examination reports of record do not reflect that the Veteran's instability had even risen to the level of a compensable rating. There is likewise no lay evidence alleging "severe" symptoms; the Veteran has not described being told that his instability was "severe" (though he has certainly described functional impairment resulting from instability). On the other hand, the October 2020 and November 2020 VA examiner's addendum opinions reflect a detailed analysis leading to a finding of "moderate" instability, consistent with a 20 percent rating. The Board finds that, from February 7, 2021 to the present, a rating in excess of 20 percent is not warranted under the amended criteria for DC 5257. As illustrated above, there is no evidence of an unrepaired or failed repair of a complete ligament tear causing persistent instability, with an accompanying medical provider prescribing both an assistive device and a brace for ambulation. There is likewise no evidence of any diagnosed condition involving the patellofemoral complex with recurring instability after surgical repair that requires a prescription from a medical provider for a brace, and either a cane or a walker. The Veteran has not had knee surgery and although he regularly uses a brace, it does not appear that he has been specifically prescribed assistive devices. Finally, the record does not include documentation of treatment lasting at least 12 consecutive months and unresponsive to surgery and either shoe orthotics or other conservative treatment for both lower extremities. As such, the amended version of DC 5257 does not provide a basis for an increased rating. Accordingly, the Board finds that the Veteran's right knee instability more nearly approximates a degree of impairment warranting an increased 20 percent rating under the criteria of DC 5257 in effect prior to February 7, 2021. There is no probative evidence to suggest that a rating in excess of 20 percent is required. The Veteran has not alleged, and the record does not reflect, that his right knee instability has been deemed "severe," nor have the requirements for a rating in excess of 20 percent under the amended criteria of DC 5257 been satisfied. REASONS FOR REMAND 2. Entitlement to an increased rating for right knee limitation of flexion 3. Entitlement to an increased rating for right knee limitation of extension from April 18, 2014 to March 2, 2018 4. Entitlement to an increased rating for left knee limitation of extension Regarding the issues listed above, the Board explained in its August 2020 remand instructions that, pursuant to the December 2019 JMPR, the AOJ was required to provide the Veteran updated knee examinations in order to estimate functional loss in both knees, to include in terms of the degrees of range of motion lost, in light of the Mitchell, Sharp, and Correia Court cases. (The Board discussed these cases at length in its prior remand.) In September 2020, a VA examination was performed. The report notes that the Veteran had range of motion of zero to 120 degrees in his right knee and zero to 110 degrees in his left knee. The report further indicates that the Veteran complained of additional functional limitation in the form of flare-ups of knee pain as well as painful motion, pain with weight-bearing, and crepitus. The Veteran also noted that fatigue caused additional functional loss. On review, the examiner did not attempt to estimate such functional loss in terms of additional degrees of range of motion lost. Rather, the examiner noted without explanation that the Veteran had the same range of motion during flare-ups and after repetitive-use testing. Recognizing this inconsistency, the AOJ requested that the examiner provide a follow-up opinion in October 2020. The examiner responded with an addendum in which he stated that "[t]he reviewed medical documentation suggests limited range of motion accompanied with pain involving both knees," and opined that "it is more likely that the veteran would exhibit moderate functional limitations with physical activities ranging from standing, walking, hiking, squatting, kneeling, and jumping." The examiner further noted evidence of "arthritic changes in both knees since 2011" with "loss of range of motion in various degrees since 2013," and stated that it was "conceivable that the veteran's bilateral knee conditions have worsened since 2013 until present." Nonetheless, the examiner did not provide any estimates regarding specific degrees of range of motion lost due to such functional impairment. In November 2020, the AOJ again requested a follow-up opinion, specifically asking the examiner to provide range of motion lost in degrees, or, alternatively, "a thorough explanation of why, after reviewing all relevant evidence, this determination cannot be made." The examiner provided a responsive opinion in November 2020, with the only substantive addition being the three sentences that follow: There is no change in ROM during Repetitive use over time and/or Flare-ups. The veteran's ROM during repetitive use over time and Flare-up are Flexion 0-110 and Extension 110-0. The veteran just experienced lack of endurance during exam. The Board is mindful that this case has been remanded many times, and does not wish to cause the Veteran further delay. However, in light of the extremely specific instructions provided in the December 2019 JMPR, the Board's prior remands, and the AOJ's requests leading up to the VA examiner's October 2020 and November 2020 addendum opinions, which collectively require an estimate regarding the degrees of motion lost due to functional impairment of the knees (or an explanation as to why it is not possible to provide such an estimate), the Board is unable to find that either the September 2020 examination report or the October 2020 and November 2020 addendum opinions adequately capture the functional impairment caused by the Veteran's knee problems. The Board reiterates that VA rates knee impairment of this sort on the basis of limitation of motion. See 38 C.F.R. § 4.71A, DCs 5260 and 5261. It is therefore imperative that medical examiners do their best to estimate actual degrees of range of motion lost. Moreover, the Mitchell, Sharp, and Correia cases make clear that, when possible, these estimates must include consideration of all types of functional impairment. Here, the September 2020 VA examination report and addenda show that the VA examiner admirably went to great lengths to describe the Veteran's functional impairment, noting that the Veteran experienced flare-ups and had difficulty performing any kind of physical activity. This is crucial information, and the Board is grateful for the examiner's thoroughness in obtaining it. Unfortunately, the examiner's report and opinions are missing substantive estimates of lost range of motion due to this functional impairment. It is not enough to say that the Veteran's range of motion is unchanged despite functional limitations such as pain or difficulty sitting, squatting, etc. Rather, the applicable law requires that examiners estimate the extent to which such impairments cause or contribute to limited range of motionin other words, to estimate where (in terms of degrees) in the Veteran's range of motion he begins to experience functional impairment. The examiner's assertions of "worsening" knee symptoms or "moderate" functional impairment do not provide the necessary evidence in this regard. Accordingly, the Board finds that the claims on appeal must be remanded for an additional VA examination to address the issues raised above. Most importantly, the examiner should attempt to provide an estimate as to the specific degrees of range of motion lost due to the functional impairment described by the Veteran. The examiner should take into consideration the prior VA examination reports of record, as well as the Veteran's lay statements. If such an estimate cannot be reasonably provided, the examiner should state that this is so and explain why. The matters are REMANDED for the following action: 1. Obtain outstanding VA medical records pertaining to the Veteran, to include records from September 2020 to the present. 2. Schedule the Veteran for an examination with a different clinician than the clinician who examined the Veteran in September 2020 regarding the current severity of his right and left knee disabilities, manifested by limitation of flexion and extension (on the right) and limitation of extension (on the left). To the extent possible, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's bilateral knee disabilities. The examiner is asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. (Continued on the next page) It is most important that the examiner attempt to provide an estimate as to the degrees of range of motion lost due to any functional impairment identified by the examiner and/or described by the Veteran. Put another way, functional limitation, to include flare-ups and painful motion, should be estimated in terms of the point, in degrees, in range of motion of each knee at which such impairment begins. In providing such an estimate, the examiner should take into consideration the prior VA examination reports of record, as well as the Veteran's lay statements. If such an estimate cannot be reasonably provided, the examiner should state that this is so and explain why. The examiner should also provide a retrospective opinion regarding the limitation of extension of the Veteran's right knee, to include a discussion of functional impairment illustrated above, for the period from April 18, 2014 to March 2, 2018. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Minot, 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.