Citation Nr: 21042174 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-44 076 DATE: July 12, 2021 ORDER Entitlement to an increased evaluation higher than 10 percent for left knee chondromalacia patella is denied. Entitlement to an increased evaluation higher than 10 percent for right knee chondromalacia patella is denied. FINDINGS OF FACT 1. At all times during the pendency of the appeal, the evidence of record shows that the Veteran's left knee chondromalacia patella with limitation of flexion, is manifested by pain in the knee joint, but has not more nearly approximated limitation of flexion to 45 degrees, recurrent subluxation, or ankylosis. 2. At all times during the pendency of the appeal, the evidence of record shows that the Veteran's right knee chondromalacia patella with limitation of flexion, is manifested by pain in the knee joint, but has not more nearly approximated limitation of flexion to 45 degrees, recurrent subluxation, or ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation higher than 10 percent for left knee chondromalacia patella with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4. 71a, Diagnostic Codes (DCs) 5260-5003. 2. The criteria for entitlement to an evaluation higher than 10 percent for right knee chondromalacia patella with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4. 71a, Diagnostic Codes (DCs) 5260-5003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1975 to July 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. Increased Rating 1. Entitlement to an increased evaluation higher than 10 percent for left knee chondromalacia patella 2. Entitlement to an increased evaluation higher than 10 percent for right knee chondromalacia patella The Veteran's bilateral knee chondromalacia patella is evaluated under 5260-5003. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. For the period prior to February 7, 2021, Diagnostic Code Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the period from February 7, 2021, DC 5003 has been revised to make clear this DC only applies to degenerative arthritis. In the present case, there is no change in application of the DC to the Veteran's knees. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). Ratings can be assigned for knee subluxation or instability under Diagnostic Code 5257. 38 C.F.R. § 4.71a. Again, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). "Slight," as relevant to a physical condition, is defined as "small of its kind or in amount." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to "mild," which is defined as "not severe" or temperate; with "Temperate" being defined as "keeping or held within limits" and "not extreme or excessive." "Moderate" is defined as "tending toward the mean or average amount," "not violent, severe, or intense," and "limited in scope or effect." Id. "Severe" is defined as "very painful or harmful" or "of a great degree." Id. The term "severe" is used throughout the rating schedule, including in Diagnostic Code 5257, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. Within the context of Diagnostic Code 5257, which establishes a successive, tiered rating structure, it represents the highest or most extreme level. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. "Persistent" is defined as "continuing or inclined to persist in a course" with "continuing" defined as "constant" and "persist" defined as "to continue to exist." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with 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. A 20 percent rating is assigned with either (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 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. Lastly, regarding patellar instability, 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. 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 (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. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). 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). In considering range of motion ratings, it is important to consider whether a higher disability evaluation is 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 v. Brown, 8 Vet. App. 202 (1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Veteran underwent an examination in November 2015, and was diagnosed with chondromalacia patella. He reported during service the kneecap would lock up, and hurt. He reported continued bilateral knee pain since service. He had been taking NSAIDS on and off since service. Pain was mostly in the anterior knees, and he reported a popping sensation. He denied flare-ups of the knee. Functional loss was described as inability to run, and knees give out when going downstairs. Range of motion testing revealed: flexion to 130 degrees, and extension to 0 degrees. There was objective evidence of tender joint lines and patellar facets. There was no evidence of crepitus. Pain itself does not contribute to functional loss There was no evidence of pain with weight bearing. There was no additional functional loss or range of motion after three repetitions. Pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over a period of time. Muscle strength testing was normal. There was no atrophy, or ankylosis of the knee. Joint stability testing was normal bilaterally. He does not have a meniscus condition. He has never had shin splints, stress fractures, or any other tibial and or fibular impairment. X-rays revealed mild degenerative changes in the patellofemoral joint, and a fragmented enthesophyte off the anterior superior patella. He was limited in deep bending of the knee and prolonged walking. The Veteran underwent an examination in July 2017. He reported bilateral knee pain, particularly with any type of incline. Stairs or ladders caused increased pain. He reported episodes where his knees give out about twice per month. He was under no treatment for his knees. He was taking meloxicam and tumeric, for pain. He denied flare-ups of the knees. Functional impairment was described as an inability to do any activity on an incline. Right knee range of motion testing revealed flexion to 125 degrees, and extension to 0 degrees, with pain. Left knee range of motion testing revealed flexion to 115 degrees, and extension to 0 degrees. He did not have pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the patellar facets. There was no evidence of crepitus on the right, but there was crepitus on the left knee. There was pain noted on examination, that did not result in functional loss. There was no additional functional loss or range of motion after three repetitions. He was not examined immediately after repetitive use over time, and the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time. The rationale was that the only way to determine this is to actually examine the Veteran after repeated use over time. Flare-ups were not indicated. The Veteran did not have ankylosis. Joint stability testing was normal, with no evidence of subluxation, instability, or effusions. There was no evidence of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. There was no meniscus condition. Functional impairment was described as limitations in climbing stairs, and ladders, as well as limitation in activities with deep knee bending. There was no evidence of pain on passive range of motion testing, or when the joint was used in non-weight bearing. At the Board hearing the Veteran testified to a worsening of his bilateral knee symptoms. He reported extreme pain when going up or down stairs. He also reported popping in his knees, and instability. VA treatment records reveal a report in December 2020 that the Veteran walks daily for exercise. In October 2018 and March 2017, he reported walking around 5 miles daily. The Veteran underwent an examination in April 2021. He reported chronic, ongoing, and worsening knee pain, and uses NSAIDS as treatment. He denied flare-ups of the knee. Functional loss was described as difficulty going up and down inclines. He did not report a history of instability or recurrent subluxation of the knee. He did not have a history of frequent effusion of the knee. Range of motion testing revealed flexion to 130 degrees and extension 0 degrees, with pain. He did not have pain with weight bearing, or non-weight bearing, or passive motion. He only had pain with active motion. There was objective evidence of crepitus. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no additional functional loss or range of motion after three repetitions. The examiner noted that evidence from the Veteran did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with repeated used over time. There was no indication of atrophy or ankylosis. There was no evidence of recurrent subluxation or persistent instability. He reported wearing knee pads if he is going to kneel for a prolonged period of time. There is not recurrent patellar instability. There is no history of a recurrent patellar dislocation, shin splints, stress fractures, or any other tibial or fibular impairment. He has never had a meniscus condition. The Veteran's right and left knee condition is evaluated under 5260-5003. Based on the evidence cited above, the Board finds that there is no basis to grant an increased rating based on limitation of flexion. Here, in 2015 his lowest bilateral knee flexion was to 130 degrees. In 2017, his right knee was limited to 125 degrees of flexion and left knee to 115 degrees of flexion. In 2021 his range of motion improved to 130 degrees of flexion bilaterally. To warrant an increased evaluation of 20 percent, flexion would have to be limited to 30 degrees. Accordingly, the predominant disability picture does not demonstrate flexion less than 30 degreeseven considering the Veteran's lay reports of functional impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5260. As to limited extension, the evidence shows that extension has been limited at worse to 0 degrees, with pain. A higher evaluation is not warranted unless the evidence shows limitation of extension of 10 to 14 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Even considering the Veteran's reports of painful motion and flare-ups, the Board finds that a higher rating for limitation of extension is not warranted. Regarding instability, though at the 2017 examination the Veteran reported his knee giving way, and at the Board hearing the Veteran reported episodes of instability, stability testing in 2015, 2017 and again 2021, there was no indication of knee instability. Particularly in 2021, the Veteran denied episodes of knee instability or subluxation. There is no probative evidence the Veteran suffered from a compensable level of instability or subluxation in either knee during this period on appeal. Although he is competent to report giving way and instability in the knee joints, he is not competent to determine whether this rises to a compensable level under DC 5257. Moreover, the clinical testing, coupled with the lack of any significant reports of giving way/instability in the course of treatment, outweighs the Veteran's statements that lacked detail and were made solely in the course of seeking an increased rating. As such, there is no basis to assign a separate rating under either the old or revised version of DC 5257. As to meniscal conditions, throughout the period on appeal the Veteran has not been found to have a meniscus condition in either knee. VA and private treatment records are void for mention of a meniscus condition that manifests with frequent locking, pain, and effusion to the joint. The Veteran has not had removal of semilunar cartilage, as such, there is no basis to assign a separate rating based on a meniscus disability. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Although the Veteran reported in 2015 that his knee would lock during service, he has not reported any episodes of locking for the duration of the appeal period. There is no probative evidence that either knee exhibited dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint. As such, a separate rating under Diagnostic Code 5258 is not warranted. The Board has considered the Veteran's lay statements regarding the functional impact of his bilateral knee disability. The Veteran is competent to report his own observations regarding the severity of his disability, including reports of pain and decreased mobility. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). His statements are consistent with the ratings assigned. At the 2015 examination an inability to run and knee giving way when going downstairs, and pain itself did not contribute to functional loss. In 2017 and 2021 functional loss was described as an inability to activities on an incline, with no reports of flare-ups. Further, the Veteran has maintained an active lifestyle, as evidenced by his reports of walking daily. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the Veteran's medical records. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran's more general lay assertions. Further, the Veteran has submitted no evidence of treatment or care for his knees for the duration of the appeal. The Board acknowledges that the evidence, including the Veteran's lay statements indicate that he had chronic knee pain, and has considered 38 C.F.R. § 4.59 regarding painful motion. Under 38 C.F.R. § 4.59, with any form of arthritis, actually painful joints are entitled to at least the minimum compensable rating. See also Petitti v. McDonald, 27 Vet. App. 415, 425 (2015) ("Under 38 C.F.R. § 4.59, the trigger for a minimum disability rating is an 'actually painful, unstable, or malaligned joint [].'"). In this case, however, the Veteran has already been assigned at least the minimum compensable rating, 10 percent, for his left and right knee limitation of flexion, for the entire period on appeal. See Petitti, 27 Vet. App. at 425. The 10 percent evaluation for limitation of flexion already considers the Veteran's limitation of motion hampered by pain, repetitive motion, and flare ups, as these symptoms were evaluated on examination to the extent feasible. The Board notes that the Court has established that flare-ups must be considered. However, guidance on how to evaluate flare-ups has not been particularly clear. Therefore, this Veterans Law Judge expands upon the wisdom advanced 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. Here, the Veteran's statements, if accepted as credible, would not warrant a higher evaluation based upon flare-ups because such flare-ups do not additionally limit function in a quantifiable way, and are not of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. Moreover, in 2015, 2017, and 2021 he denied flare-ups. The Veteran did report worsening pain; however, he denied flareups of the knee. At the Board hearing he reported extreme episodes of pain when going up or down stairs, however, these findings do not more nearly approximate a rating higher than 10 percent for limitation of flexion or a compensable rating for limitation of extension. Again, to warrant a higher evaluation flexion would have to be limited to less than 30 degrees, and extension would have to be limited to 10 degrees. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. There are no consistent reports of exacerbation. In 2015 and 2021 there was no additional functional loss or range of motion after three repetitions, or any indication that pain, weakness, fatigability limit functional ability with repeated use over time. The Veteran consistently has denied flare-ups. This evidence, and these reports are not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings. The preponderance of the evidence is against an increased evaluation under DC 5260, or an additional separate rating under any other Diagnostic Code. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; as the preponderance of the evidence is against assignment of any other higher ratings, it is not applicable. 38 U.S.C. § 5107. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.