Citation Nr: 22014187 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-63 711 DATE: March 11, 2022 ORDER Entitlement to an initial 10 percent disability evaluation, and no more, for patellofemoral pain syndrome of the right knee, based upon limitation of motion, is granted. Entitlement to an initial disability evaluation in excess of 10 percent for patellofemoral pain syndrome of the right knee, based upon instability, is denied. REMANDED Entitlement to service connection for a low back disorder, to include degenerative joint disease of the lumbar spine, also claimed as secondary to service-connected right knee disorder, is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran was not shown to have right knee extension limited to less than 0 degrees or flexion limited to less than 80 degrees. 2. Slight instability, and no more, of the right knee has been demonstrated. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for a 10 percent rating, and no more, for right knee patellofemoral syndrome, on the basis of limitation of motion, have been met throughout the appeal period. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2020). 2. The criteria for an initial disability evaluation in excess of 10 for right knee patellofemoral syndrome disease, based upon subluxation/lateral instability, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.71a, Diagnostic Code 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from January 1997 to August 2000. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in April 2021. A transcript of the hearing is of record. This matter was most recently before the Board of Veterans' Appeals (Board) in May 2021, at which time it was remanded for further development. Right Knee Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2020). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). The Veteran maintains that the symptomatology associated with his right knee warrants an evaluation in excess of that which is currently assigned. Limitation of motion of the knee is addressed in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is limited to 60 degrees; 10 percent rating where flexion is limited to 45 degrees; 20 percent rating where flexion is limited to 30 degrees; and 30 percent rating where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to 5 degrees; 10 percent rating where extension is limited to 10 degrees; 20 percent rating where extension is limited to 15 degrees; a 30 percent rating where extension is limited to 20 degrees; a 40 percent rating where extension is limited to 30 degrees; and a 50 percent rating where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The knee is considered a major joint. 38 C.F.R. § 4.45 (f). The normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent rating when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board notes that regulations regarding the musculoskeletal system changed effective February 7, 2021. While DCs 5260 and 5261 remained the same, DC 5257 changed. The new criteria state that for recurrent subluxation or instability, 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 warrants a 30 percent rating. A 20 percent rating is warranted for (a) 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, (b) 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 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. 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 and either a cane or a walker warranted a 30 percent rating. 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: 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. Note (1) states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) states that 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). VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on x-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on x-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). The General Counsel further held that separate ratings could also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). In VAOPGCPREC 9-98, VA's General Counsel reiterated that, if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2020). Diagnostic Code 5003 provides that 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 (DC 5200 etc.). When, however, the limitation of motion of the specific joint or joints involved is noncompensable 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, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assigned where x-ray evidence shows involvement of two or more major joints or 2 or more minor joint groups. Where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent evaluation is assigned. Note (1) to Diagnostic Code 5003 states that the 20 and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. Id. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Correia, 28 Vet. App. at 169-170. In this case, the Board finds that the medical evidence of record is sufficient to decide the case and is compliant with prevailing caselaw. At the time of a March 2015 VA examination, the Veteran reported having constant pain in his right knee 8/10, sharp at times 10/10, depending on activity level and/or position. Rest and Vicodin helped with the pain. Right knee flare-ups occurred a few times a day, with pain lasting five minutes. He also complained of intermittent popping in the right knee. The Veteran stated that the flare-ups limited his activity. Range of motion testing was from 0 to 140 degrees. There was pain with motion, but it did not result in/cause functional loss. There was no pain with weight-bearing, but pain was present with flexion. There was objective evidence of localized tenderness or pain on palpation of the joint associated with the soft tissue in the patella area. Crepitus was not present. There was no additional loss with repetitive motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. The right knee caused disturbances with locomotion and interference with standing. Muscle strength was 5/5. There was no muscle atrophy. There was no ankylosis. There was no history of subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal. Functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis was also not present. There was no impact on employment. During a right knee flare-up, standing was limited 10 minutes, walking to 100 meters, and lifting to 20 lbs. The Veteran worked as an IT tech at Yahoo. His gait was stable and he was able to walk on his toes, but not his heels due to right foot pain. At the time of his April 2021 hearing, the Veteran testified that his knee would hyperextend and that he had to use a stick when he walked for extended periods. He also stated that his knee had given out on him. At the time of a November 2021 VA examination, the Veteran reported having persistent pain and clicking. He took OTC pain medication, applied ice, and used CBD for pain control. The right knee pain limited his ability to exercise and perform physical activities. Flare-ups were reported which occurred once a week. The right knee flare-ups were reported as severe, lasting for hours, and were precipitated by random acts. The right knee flare-ups were alleviated by CBD, ice, elevation, pain medications, and hemp. Functional impairment was in the form of limited exercise, limited walking, and playing with children. There was no history of recurrent subluxation or lateral instability. There was also no frequent effusion. Range of motion testing was found to be normal, from 0 to 140 degrees, both passive and active. Pain was noted on flexion but did not cause functional loss. There was no evidence of crepitus. Repetitive use did not result in additional loss of motion. The examiner indicated that there was no procured evidence to suggest pain, fatigability, weakness, lack of endurance, or incoordination would significantly limit functional ability with repeated use over time. The examiner estimated that the Veteran's range of motion during a flare-up would be 0 to 80 degrees. There was no muscle atrophy. There was no ankylosis. The was no recurrent subluxation or instability and no recurrent patellar instability. The Veteran did not use any assistive devices. Functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis was also not present. As to impact on employment, the examiner indicated that the Veteran's walking was limited to 30 minutes, then he needed to sit and rest due to right knee pain. As it relates to the claim for an increased evaluation for a right knee disorder, the Board finds that a compensable disability evaluation would not be warranted under Diagnostic Code 5261. Treatment records and VA examinations reveal that the Veteran has been found to have extension to zero degrees on numerous occasions, including at the time of the Veteran's most recent VA examination. While the Board is sympathetic to the Veteran's reports of pain, objective testing did not reveal that any pain on use or during flare-ups, abnormal movement, fatigability, incoordination, or any other such factors resulted in the right knee being limited in motion to the extent required for a compensable evaluation for extension of the left knee. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). As it relates to flexion of the right knee, the Veteran has not been shown to have flexion to less than 60 degrees at the time of any VA examination or outpatient visit during the time period in question, with flexion to no less than 80 degrees being reported during the course of the appeal. As the Veteran has been shown to have limitation of motion, although noncompensable for rating purposes, a 10 percent disability evaluation, and no more, would be warranted under 5260. Therefore, a rating in excess of 10 percent for limitation of flexion is not warranted. While the Board is sympathetic to the Veteran's reports of pain, objective testing did not reveal that any pain on use or during flare-ups, abnormal movement, fatigability, incoordination, or any other such factors resulted in the right knee being limited in motion to the extent required for a 20 percent rating for limitation of flexion of the right knee. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). As to instability, the Board finds that no more than slight instability of the right knee has been shown throughout the appeal period. The Veteran has complained of instability of the knee throughout the appeal period, to include at his hearing. Although the Board notes that the VA examinations have not demonstrated that the Veteran has instability in the right knee, given the Veteran's statements, the Board will find that the evidence demonstrates instability in the right knee. See English v. Wilkie, 30 Vet. App. 347, 352 (2018) (finding that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence). As there is no objective evidence of instability, the Board finds that the Veteran's instability most nearly approximated the ratings for mild instability. As such, the Board will find that an evaluation in excess of 10 percent disability under DC 5257, for slight instability of the right knee, has not been shown throughout the appeal period. REASONS FOR REMAND As it relates to the claim of service connection for a low back disorder, the Board notes that the Veteran's representative has recently requested that this matter be remanded so that an opinion can be obtained as to the etiology of the Veteran's low back disorder and its relationship, if any, to his service-connected right knee disorder. As this is a legacy appeal, all theories of service connection should be addressed. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998), 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To date, the Veteran has not been afforded a VA examination to determine the etiology of any current low back disorder, to include degenerative joint disease, and its relationship, if any, to his service-connected right knee disorder. The threshold for finding a link between a current disability and service is low for the purposes of providing a VA examination. Locklear v. Nicholson, 20 Vet. App. 410 (2006). The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the etiology of any current low back disorder, to include degenerative joint disease. The examiner must review the claims file in conjunction with the examination. The examiner is requested to offer the following opinions: Is it as likely as not (50 percent probability or greater) that any current low back disorder is caused by the service-connected right knee disorder? If not, is it at least as likely as not (50 percent probability or greater) that any current low back disorder is aggravated by the service-connected right knee disorder? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. Complete detailed rationale is requested for each rendered opinion. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.