Citation Nr: 21042504 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-59 313 DATE: July 13, 2021 ORDER Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the right knee based on limitation of flexion is denied. However, a separate 30 percent rating, though no higher, is additionally granted for limitation of extension of the right knee from January 19, 2021 onwards. REMANDED Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the left knee is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's right knee patellofemoral syndrome is manifest by painful motion with flexion, at worst, to 115 degrees including during flare-ups. 2. His right knee extension, at worst, has an endpoint at 20 degrees owing to pain. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to a rating higher than 10 percent for the right knee patellofemoral syndrome to the extent the rating is based on limitation of flexion. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. But since January 19, 2021, the criteria have been met for a separate 30 percent rating, though no greater, for limitation of extension of the right knee owing to the patellofemoral syndrome. Id., DC 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2007 to April 2012. This appeal to the Board of Veterans' Appeals (Board) is from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of his claims during a "virtual" teleconference hearing in May 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. At the time of his hearing, he had 0 percent (so noncompensable) ratings for his left and right knee disabilities. In June 2020, the Board remanded the claims including the derivative TDIU claim, back to the RO for further development and consideration especially to have the Veteran reexamined to reassess the severity of his left and right knee disabilities (all components of them and their functional impact) and to further develop his derivative TDIU claim. Those remand instructions since have been completed, as directed, at least as concerning his claim for a higher rating for his right knee disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). An RO decision since issued in March 2021, on remand, increased the rating for the left knee disability from 0 to 10 percent retroactively effective from May 15, 2013. Another RO decision also issued on remand, but instead in April 2021, also increased the rating for the right knee disability from 0 to 10 percent retroactively effective from May 15, 2013. The Veteran since has continued to appeal for even higher ratings for his left and right knee disabilities, also for a TDIU. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal). Since, however, there has not been the acceptable substantial compliance with the Board's prior remand directives as concerning the claims for an even higher rating for the left knee disability and derivative TDIU, the Board is again remanding these claims back to the RO. See Stegall, 11 Vet. App. at 271. But the Board is going ahead and deciding indeed, partly granting the claim for still additional compensation for the right knee disability, albeit, as will be discussed, in the way of a separate rating for limitation of extension of this knee apart from the existing rating that, instead, is for limitation of flexion. Increased Ratings Entitlement to a rating higher than 10 percent for the right knee patellofemoral syndrome to the extent the rating for this disability is predicated on limitation of flexion of this knee The Veteran contends that his right knee patellofemoral syndrome is more severe than contemplated by his existing 10 percent rating. The Veteran's right knee patellofemoral syndrome is rated under 38 C.F.R. § 4.71a, 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 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, importantly here, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans, themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating higher than 10 percent for the Veteran's right knee patellofemoral syndrome, to the extent the rating for this disability is based on limitation of flexion. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, fatigue, and incoordination. However, even considering his lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he has right knee flare-ups daily that result in pain with swelling and burning sensations would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. In March 2016, the Veteran underwent a VA knee examination. At this examination, he reported that his right knee had daily pain that impacted his ability to sleep and that he had popping in both knees but no locking or giving out. He further stated that he had occasional swelling of his knees. However, he had full range of motion of his right knee without pain on weight bearing, but there was evidence of localized tenderness or pain on palpation of the patella. During flare-ups, he estimated that he did not have any additional loss in range of motion but did have pain, fatigue, and incoordination. He had full muscle strength of his right knee, no muscle atrophy, and no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion, and joint stability test results for this knee were normal. Further, there were no noted meniscal conditions or other pertinent physical findings. He reported occasionally using a knee brace on his right knee. There was no arthritis documented on diagnostic imaging. A more recent January 2020 X-ray of the right knee also showed "no acute fractures, dislocations, bony lesions, or significant arthritic changes. No joint effusion." During his May 2020 hearing before this Board, the Veteran testified that he has constant pain in his right knee and can hardly walk or perform work around the house because of this pain. He stated that he takes multiple medications to manage the pain but is unable to lift over 15 pounds due to his knee disabilities. He also testified that, while working at his civilian job after his separation from service, he tore his right anterior cruciate ligament (ACL) and that, while undergoing surgery for this tear, the surgeon found evidence of a prior tear, potentially from his active military service. He also testified that he has been told he has arthritis in "almost all of my joints," however, as already mentioned, right knee arthritis is not documented in the medical evidence of record, and arthritis must be objectively confirmed by X-ray. See 38 C.F.R. § 4.71a, DC 5003. In January 2021, following remand of this claim, the Veteran again underwent a VA knee examination. The examiner noted that the Veteran's right knee diagnoses now include right knee patellofemoral syndrome, ACL tear, and synovitis. The Veteran described his bilateral knee pain as constant and that his knees feel like they are separating when he walks, along with his legs giving out. He reported right knee flare-ups consisting of daily, constant, moderate severity right knee pain, including swollen and burning sensations with occasional stabbing pain. He described the functional impact of his bilateral knee disabilities as being unable to walk normally, cannot sleep due to pain, cannot lift more than 15 pounds, and cannot sit or stand for long periods of time. Upon range-of-motion testing, the examiner observed pain with weight-bearing, non-weight-bearing, active motion, passive motion, and on rest/non-movement. However, there was no observed evidence of localized tenderness or pain on palpation of the right knee. There was no evidence of ankylosis, muscle atrophy, meniscal condition, tibial or fibular impairment, or recurrent subluxation or persistent instability. That said, the examiner did point out that the Veteran has an "incomplete/partial ligament tear" on the right side. The examiner then stated that there is no right-side patellar instability, but that the Veteran has been prescribed a cane for ambulation due to his right-side patellar instability. Concerning surgical procedures, the examiner noted that, in 2019, the Veteran underwent a diagnostic arthroscopy of his right knee. The examiner surmised that the overall functional impact of the Veteran's right knee patellofemoral syndrome is that he is limited in climbing, stooping, crouching, crawling, standing for long periods, and running, all due to weakness in his right knee. Concerning the Veteran's right knee ACL tear, the examiner explained that it was "an old condition that likely happened when he pivoted his foot. Patellofemoral syndrome and the ACL tear are unrelated conditions." The examiner further stated that the Veteran's ACL symptoms are a popping sensation in the right knee, severe pain, and inability to continue activity, rapid swelling, loss of range of motion, and a feeling of instability or giving way. In contrast, the examiner stated that the Veteran's patellofemoral syndrome symptoms are pain during activities that bend the knee, including squatting or climbing stairs, pain after sitting for an extended period of time with knees bent, and cracking or popping sounds in the knee when standing or climbing stairs. In March 2021, that examiner was asked to provide an addendum opinion concerning the Veteran's right knee disability specifically, on the relationship, if any, between his service-connected patellofemoral syndrome and non-service-connected ACL tear. This additional medical comment was needed because, if it is not possible or feasible to differentiate or distinguish the extent of symptoms that is due to the service-connected disability, from those that are not and instead attributable to the non-service-connected disability, then this reasonable doubt must be resolved in the Veteran's favor and for all intents and purposes all symptoms attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Here, though, in response to this inquiry, the examiner reiterated that the Veteran's ACL tear was not due to his service-connected patellofemoral syndrome. Further, the examiner explained that the Veteran's right knee range of motion was not limited by his patellofemoral syndrome, only by his non-service-connected ACL tear, and that his instability and use of a cane are due to his ACL tear, not his patellofemoral syndrome. Later in March 2021, the examiner again was asked to provide another addendum opinion concerning which specific right knee symptoms are due to the patellofemoral syndrome versus those instead due to the ACL tear. The examiner responded that she was unable to clarify without speculation. That notwithstanding, ultimately, that VA examiner found that the Veteran has patellofemoral syndrome limiting his right knee flexion, at worst, to 115 degrees, including during flare-ups. Full flexion is to 140 degrees. See 38 C.F.R. § 4.71, Plate II. But, according to DC 5260, even the most minimum 0 percent (so noncompensable) rating requires flexion limited to just 60 degrees; thus, the Veteran still has nearly twice that amount of right knee flexion, even during a flare up. He certainly does not have flexion limited to 30 degrees or less to support assigning a higher 20 percent rating or even greater under DC 5260. Moreover, while this examiner conceded that a cane has been prescribed owing to the instability of the Veteran's right knee, she then found he had no recurrent subluxation or instability, which is consistent with previous VA examinations. But see also English v. Wilkie, 30 Vet. App. 347, 352-53 (2018) (holding that an objective clinical finding of instability is not required, noting this also instead may be established by subjective complaint). In any event, so regardless, she has attributed all instability of this knee to the Veteran's ACL tear, not instead to the patellofemoral syndrome. Hence, the Veteran is not entitled to a separate rating for instability under DC 5257, meaning apart from the rating he already has under DC 5260 for limited flexion and is additionally receiving in this decision under DC 5261 because he also has limited extension. See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998). The Veteran's right knee patellofemoral syndrome has been awarded a 10 percent rating for limited flexion under DC 5260 based on his painful motion as contemplated by 38 C.F.R. § 4.59. But, as he does not otherwise have a compensable limitation of flexion, a higher rating under DC 5260 is not warranted. In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (so noncompensable) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. The VA examiner determined the Veteran does not have any meniscal condition of the type contemplated by DCs 5258 and 5259 that might, in turn, provide other grounds for granting additional compensation or a separate rating at least not owing to the patellofemoral syndrome. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Moreover, there is no probative indication of right knee ankylosis, impairment of the tibia or fibula, or genu recurvatum. This means that a rating under a DC pertaining to these still other knee disabilities would not be appropriate, either. See 38 C.F.R. § 4.71a, DCs 5256, 5262, and 5263. Separate rating under DC 5261 for limited extension At the January 2021 examination, the Veteran had a ratable limitation of extension, which is rated under DC 5261. According to DC 5261, a 0 percent rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees, and a maximum 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. These rating criteria did not change under the February 7, 2021 regulatory amendments. Full extension is to 0 degrees. 38 C.F.R. § 4.71, Plate II. During the January 2021 VA knee examination, the Veteran's active range of motion showed that his extension endpoint was at 5 degrees, and that his passive range of motion of the right knee showed full extension to 0 degrees, both with pain. However, on observed repetitive use and repeated use over time testing, he had an extension endpoint instead at 20 degrees with pain and weakness, which in turn is commensurate with a 30 percent rating under DC 5261, apart from the existing 10 percent rating under DC 5260 for the limited flexion. VAOPGCPREC 9-2004 (September 17, 2004) (permitting separate ratings under DC 5260 (for limitation of flexion of the leg) and DC 5261 (for limitation of extension of the leg) for disability of the same joint). REASONS FOR REMAND 1. Entitlement to a rating higher than 10 percent for the patellofemoral syndrome of the left knee is remanded. The Board's prior June 2020 remand directed that a VA examiner evaluate both of the Veteran's knees, including provide information regarding the severity, frequency, and duration of any flare-ups and an estimation of any additional impairment in range of motion due to flare-ups. During the January 2021 VA knee examination, on remand, the examiner noted that the Veteran reported left knee flare-ups of moderate severity occurring a few times per week and lasting a couple of days. However, in the flare-ups portion of the examination report, the examiner did not provide any estimation of the consequent limitation of motion of the left knee during a flare-up and did not note any other factors causing functional loss during a flare-up. The examiner did not otherwise indicate she was unable to provide an estimate of range of motion of the left knee during a flare-up that would not require obtaining this additional information. As such, the Board finds that there has not been the acceptable substantial compliance with this prior remand directive, in turn meaning another remand of this claim is required. 2. Entitlement to a TDIU also is remanded. The Board's prior June 2020 remand also directed the RO to take steps to develop this derivative TDIU claim. This claim since was denied in the March 2021 rating decision on remand because, despite twice being requested, the Veteran did not complete and return an official TDIU application (VA Form 21-8940), and completion of this form is needed to further properly process this claim. This claim was not, however, addressed in the April 2021 Supplemental Statement of the Case (SSOC), and, since derivative of the claims for higher ratings for his left and right knee disabilities, the Veteran does not have to separately appeal this derivative TDIU claim. Thus, still more development of this claim also is required. Accordingly, these claims are again REMANDED for the following still additional development and consideration: 1. Schedule the Veteran for another examination by an appropriate clinician to again assess the severity of his service-connected left knee patellofemoral syndrome. To this end, the examiner must provide a full description of this disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), the examiner (does not have the knowledge or training), or whatever other reason precludes responding. *The prior January 2021 VA examiner acknowledged the Veteran's reports of flare ups as relating to this knee but did not then, in response, quantify the extent of consequent functional impairment during a flare up including in terms of the extent, if any, of additional restriction of motion of this knee or discuss why it is not possible or feasible to provide this information or estimation based on the Veteran's lay statements and other evidence in the file, if, as an example, he was not experiencing a flare up at the time of that examination. 2. Send the Veteran and his representative an SSOC addressing his additionally claimed derivative entitlement to a TDIU. Again emphasize the importance of completing and returning the TDIU application (VA Form 21-8940). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.