Citation Nr: 22014181
Decision Date: 03/11/22	Archive Date: 03/11/22

DOCKET NO. 09-16 119
DATE: March 11, 2022

ORDER

Entitlement to an initial rating in excess of 10 percent for right knee chondromalacia is denied.

FINDING OF FACT

The Veteran's right knee chondromalacia is not manifest by flexion of 30 degrees or less.

CONCLUSION OF LAW

The criteria for an initial rating in excess of 10 percent for right knee chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5010-5260.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the United States Army from January 2003 to January 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

This matter was previously before the Board in May 2017, at which time the Board denied the claim. The Veteran timely appealed the decision to the Court of Appeals for Veterans Claims (Court). In its June 2018 order, the Court vacated the Board's May 2017 decision to the extent that it denied a rating in excess of 10 percent for the service-connected right knee disability and remanded it back to the Board for compliance with instructions pursuant to the June 2018 Joint Motion for Partial Remand (JMPR).

This matter was also before the Board in December 2018, August 2020, March 2021, and September 2021, and each time the Board remanded it for additional development.

1. Entitlement to an initial rating in excess of 10 percent for right knee chondromalacia is denied.

Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. When a question arises as to which of two ratings shall be applied under a particular Diagnostic Code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they may be compensated under different diagnostic codes (DCs). See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Moreover, adjudication of a claim for a higher initial disability rating should include specific consideration of whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999).

A veteran may receive more than one compensable rating for different conditions of the same knee. Thus, the Board will discuss all applicable rating criteria for the knees. See VAOPGCPREC 09-04; VAOPGCPREC 23-97.

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.

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 Veteran is currently in receipt of a 10 percent rating for her right knee under DCs 5010-5260. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27.

Effective February 7, 2021, VA revised the portion of the Rating Schedule that addresses the Musculoskeletal System and Muscle Injuries. See 85 Fed. Reg. 76,453, 76,463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a).

These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. 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, and the criteria that is more favorable to the Veteran will be applied.

For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II.

Diagnostic Codes 5260 and 5261 have not been revised during the pendency of this claim. Limitation of flexion of a leg warrants a 10 percent evaluation if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. 38 C.F.R. § 4.71a , Diagnostic Code 5260. Limitation of extension of a leg warrants a 10 percent evaluation when it is limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. 38 C.F.R. § 4.71a , Diagnostic Code 5261.

Under Diagnostic Code 5003, degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Code, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. If there are no incapacitating exacerbations, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Painful motion of a major joint caused by arthritis is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, even though there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59.

Diagnostic Code 5010 provides that arthritis due to trauma, as substantiated by x-ray findings, is to be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a , Diagnostic Code 5010. Degenerative arthritis established by radiologic findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.

Under the new rating criteria effective February 7, 2021, Diagnostic Code 5003 remained largely unchanged as the main revision was only the title of the code to "Degenerative arthritis, other than post-traumatic." Diagnostic Code 5010 was revised for "post-traumatic arthritis," by removing the instruction to rate as degenerative arthritis under 5003 and directing that traumatic arthritis be rated as "limitation of motion, dislocation, or other specified instability under the affected joint."

The rating criteria for Diagnostic Code 5257 were revised February 7, 2021. Under the former rating criteria prior to February 7, 2021, DC 5257 rates impairment based on recurrent subluxation or lateral instability of the knee, and provides a 10 percent evaluation where there is evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating with evidence of severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257.

Under the revised rating criteria effective February 7, 2021, Diagnostic Code 5257, removes the "severe," "moderate," and "slight" language for recurrent subluxation or lateral instability and adds rating for patellar instability. For recurrent subluxation or instability, a 10 percent rating is warranted 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 (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or, unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.

For patellar instability, a 10 percent rating is warranted 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 warranted 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. A 30 percent rating is warranted 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.

As the former diagnostic criteria for 5257 did not require objective evidence of instability, the Board finds the prior version of Diagnostic Code 5257 more favorable to the Veteran and as such will apply only the former criteria.

Under the previous criteria for DC 5262, nonunion of either the tibia or fibula with loose motion requiring a brace warranted a 40 percent rating. For malunion of the tibia or fibula with either marked, moderate, or slight knee or ankle disability, a 30, 20, or 10 percent disability rating is warranted, respectively. 

Under the current criteria, DC 5262 provides for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring a brace. The DC also notes that malunion should be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee or DCs 5270 or 5271 for the ankle, whichever results in the highest evaluation. A 30 percent rating is warranted for medial tibial stress syndrome or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A 20 percent rating is warranted when it requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A rating of 10 percent is warranted when it requires treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. Treatment less than 12 consecutive months for one or both lower extremities is noncompensable.

Genu recurvatum, acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated, is rated at 10 percent disability under both the prior and current DC 5263 rating criteria. As the Veteran does not have genu recurvatum, this diagnostic code is not applicable.

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, may 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."). 

The Veteran underwent VA examinations in August 2008, August 2012, March 2016, June 2017, January 2020, June 2021, and December 2021. The August 2008, August 2012, and March 2016 examinations were agreed by the parties to be inadequate in the June 2018 JMPR for failing to address whether the Veteran suffered any additional functional loss during flare-ups and failing to state whether active and passive range of motion testing was conducted. The Board previously found the January 2020 and June 2021 examinations to be inadequate in its August 2020 and September 2021 remand decisions. 

In the June 2017 examination, the Veteran reported experiencing daily constant pain in her right knee. While she reported no flare-ups, she reported experiencing functional loss, noting her right knee condition impacted the amount of time she could run or participate in other high impact aerobic exercises. Her initial range of motion measurements were flexion from 0 to 130 degrees and extension from 130 to 0 degrees. No pain was noted during movement or on weight bearing, and there was no evidence of localized tenderness on palpation. However, there was objective evidence of crepitus. No additional loss was noted after repetitive use or repeated use over time, and pain, weakness, fatigability, or incoordination were not found to significantly limit her functional ability. Her right knee condition was noted as interfering with her ability to stand. Joint stability testing was conducted, and there was no history of subluxation, lateral instability, or recurrent effusion, Additionally, all joint stability test results were normal. Imaging studies showed traumatic arthritis in the right knee. The Veteran does not use any assistive devices. Additionally, the Veteran's right knee condition makes it so she cannot stand for prolonged periods of time or perform repetitive stair climbing. No pain was noted during passive range of motion testing or when used in non-weight bearing.

In the December 2021 examination, the Veteran reported stiffness, swelling, a constant dull ache, and intermittent sharp pains that would shoot up her right knee. She also described having limited mobility during flare-ups and being unable to sit or stand for long periods. She experiences flare-ups every one to two weeks that she described as moderate to severe, lasting two to three days, and are precipitated by prolonged sitting, bending, standing, and running. Her flare-ups can be alleviated by Tylenol, Voltairean gel, and Ben Gay. Her initial range of motion measurements were flexion from 0 to 130 degrees and extension from 130 to 0 degrees, with pain present on both flexion and extension but no pain with weight-bearing or non-weight bearing or functional loss. There was no additional loss after repetitive use. As for repeated use over time, the examiner stated that pain, fatigability, and weakness would cause functional loss and estimated that the Veteran's range of motion would be flexion of 0 to 120 degrees and extension of 120 to 0 degrees. Additionally, the examiner found that pain, weakness, and fatigability during flare-ups impacted the Veteran's functional loss. The examiner estimated the Veteran's range of motion during a flare-up would be flexion of 0 to 90 degrees and extension of 90 to 0 degrees. There was no tenderness on palpation, crepitus, or ankylosis noted. There was also no history of recurrent subluxation or peristent instability, no patellar instability, or history of a ligamental tear. The Veteran did not have a prescription for assistive devices. No patellar dislocation, shin splints, stress fractures, or any tibial, fibular impairments or meniscus conditions were noted. An October 2020 MRI showed grade II chondromalacia patella that involved the patellofemoral compartment and had a small joint effusion. The Veteran's right knee condition was noted as impacting her ability to perform jobs requiring prolonged squatting, standing, driving, and heavy lifting. The examiner noted there was no history of lateral instability of the right knee, and the right knee anterior, posterior, medial, and lateral instability test results were all normal.

In an August 2021 written statement, the Veteran described experiencing grinding and popping, especially when climbing stairs, stiffness, buckling, locking, and giving out daily. She stated she has fallen down the stairs a couple of times and easily trips due to losing her balance. Sitting for long periods of time, driving, overuse, and the weather aggravate her right knee condition. The pain in her knee also makes it difficult for her to sleep, and she reports feeling pain radiating down through her quadricep and into her toes.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for right knee chondromalacia. The Board acknowledges the Veteran's lay reports of symptoms including functional loss due to pain, reduced movement, excess fatigability, weakness, repetitive use, instability, pain during flare-ups, and pain during repetitive use over time.  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 pain, weakness, and fatigability she experiences during flare-ups, when her range of motion is noted as being at most 90 degrees, would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. While the Veteran experiences a loss of approximately 40 degrees between her initial range of motion and her range of motion during a flare-up, it is still 60 degrees more than the criteria for a 20 percent rating.

Additionally, 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. In this case, the Veteran has consistently complained of pain in her right knee. Nevertheless, on range of motion testing of the right knee, the Veteran was consistently able to complete repetitive motion testing and flexion has been greater than 30 degrees. As such, there has not been a showing that the Veteran's range of motion in the right knee is so functionally limited as to warrant a higher rating under DC 5260 (flexion) or a separate compensable rating under DC 5261 (extension). To that end, the Veteran's extension has not been found to be limited at all, even during flare-ups; a separate compensable rating is thus not warranted for limitation of extension.

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg.  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).  

As the evidence does not reflect ankylosis of the right knee, a higher rating under DC 5256 for ankylosis of the right knee is also not warranted. See 38 C.F.R. § 4.71 (a), DC 5256. A higher rating is also not warranted for the right knee under either DC 5258 or 5259 as there is no record of any meniscus issue that would meet the criteria for a rating under these diagnostic codes. As such, a separate rating for the right knee under DC 5258 and 5259 have not been met.

As for DC 5257, which addresses instability, the Veteran has stated that she experiences instability in her right knee due to her service-connected disability. She stated that her knee buckles at times and says it gives out daily. Her knee has also caused her to fall down the stairs a couple of times and she trips easily due to losing her balance. However, the objective evidence of record shows that stability testing was normal throughout the appeal period. While the Veteran is deemed competent to report feeling like she has weakness in her knee, the Board finds the medical evidence more probative in this respect, as the examiners used specific testing to evaluate stability. The Board additionally finds it persuasive that the Veteran denied use of assistive devices for ambulation during all VA examinations of record. Accordingly, the Board finds that a separate compensable disability rating is not warranted under 5257 for recurrent subluxation or lateral instability at any time.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for right knee chondromalacia. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). The claim is denied. 

 

Caroline B. Fleming

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Gabrielle Ongies, 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.