Citation Nr: 22014258 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 14-36 497 DATE: March 11, 2022 ORDER An initial rating in excess of 10 percent for left knee patellofemoral syndrome with iliotibial band syndrome is denied. REMANDED An initial compensable evaluation for nummular eczema with keratosis pilaris prior to November 29, 2019, and in excess of 10 percent thereafter. FINDING OF FACT The Veteran's left knee patellofemoral syndrome with iliotibial band syndrome is manifested by painful motion, but not flexion limited to 30 degrees, extension limited to 15 degrees, or any higher-level symptomatology. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for left knee patellofemoral syndrome with iliotibial band syndrome 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) 5256-5263. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from March 2001 to August 2001 and on active duty from May 2002 through June 2006. The matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board videoconference hearing in June 2017, and a copy of the hearing transcript has been associated with the record. The Veterans Law Judge who conducted the hearing is no longer available to decide the appeal. The Veteran was notified of this in an August 2020 letter. He did not request another Board hearing. The Board previously remanded these matters in September 2018 and October 2020. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial rating in excess of 10 percent for left knee patellofemoral syndrome with iliotibial band syndrome The Veteran is seeking a higher initial rating for his left knee disability. The appeal period now before the Board begins in December 2009, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned a 10 percent rating throughout the entire appeal period. A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. The Veteran's disability has been assigned a disability rating under DC 5260 of 38 C.F.R. § 4.71a. Disabilities of the knee are evaluated under the schedular criteria of DCs 5256 through 5263, under 38 C.F.R. § 4.71a. The applicable rating schedule was amended during the appeal period. Prior to February 7, 2021, the rating schedule was as follows: The Knee and Leg Rating 5256 Knee, ankylosis of: Extremely unfavorable, in flexion at an angle of 45° or more 60 In flexion between 20° and 45° 50 In flexion between 10° and 20° 40 Favorable angle in full extension, or in slight flexion between 0° and 10° 30 5257 Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 5258 Cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint 20 5259 Cartilage, semilunar, removal of, symptomatic 10 5260 Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 5261 Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 5262 Tibia and fibula, impairment of: Nonunion of, with loose motion, requiring brace 40 Malunion of: With marked knee or ankle disability 30 With moderate knee or ankle disability 20 With slight knee or ankle disability 10 5263 Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) 10 DC 5257 was not predicated on loss of range of motion, and thus §§ 4.40 and 4.45, with respect to pain, do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Further, DC 5257 is not a catch-all code intended to cover all disabilities of the knee not expressly contemplated by other DCs. Delisle v. McDonald, 789 F.3d 1372, 1357 (Fed. Cir. 2015). Beginning from February 7, 2021, the rating schedule was as follows: THE KNEE AND LEG Rating 5256 Knee, ankylosis of: Extremely unfavorable, in flexion at an angle of 45° or more 60 In flexion between 20° and 45° 50 In flexion between 10° and 20° 40 Favorable angle in full extension, or in slight flexion between 0° and 10° 30 5257 Knee, other impairment of: 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 30 One of the following: (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. (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 20 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 10 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 30 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 20 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 10 Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): 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). 5258 Cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint 20 5259 Cartilage, semilunar, removal of, symptomatic 10 5260 Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 5261 Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 5262 Tibia and fibula, impairment of: Nonunion of, with loose motion, requiring brace 40 Malunion of: Evaluate under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Medial tibial stress syndrome (MTSS), 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 30 Requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity 20 Requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities 10 Treatment less than 12 consecutive months, one or both lower extremities 0 5263 Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) 10 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, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). B. Discussion The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for the left knee disability throughout the appeal period. The Board acknowledges the Veteran's consistent lay reports of symptoms and that he experiences pain and functional loss. At a February 2012 VA examination, he reported aggravated pain from extended walking, running, and at his job working on his knees. At a November 2012 VA examination, he reported difficulty climbing ladders, squatting, and kneeling at work, while his walking and standing were limited to 30 minutes before needing a break. During the November 2019 VA examination, the Veteran reported his left knee pain prevents him from running, he has trouble bending, as well as going up and down ladders and lifting objects. At a September 2020 VA physical therapy consultation, he reported difficulty bending and going up ladders. At a December 2020 VA examination, he reported pain with climbing stairs and ladders, plus an inability to kneel and run. Further, at an October 2021 VA PTSD examination, he reported that knee pain kept him from working out, hiking, and exercising. Even considering the Veteran's lay reports of functional loss, the degree of additional limitation reflected by such statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or extension limited to 15 degrees. Moreover, at the February 2012 VA examination, his flexion was normal with no objective evidence of painful motion. At the November 2012 VA examination, his flexion was normal. At VA physical therapy in July 2012 and November 2012, his flexion was to 130 degrees. At a November 2019 VA examination, the Veteran's flexion was limited to 115 degrees. At the September 2020 VA physical therapy consultation, the Veteran's flexion was limited to 73 degrees. At the December 2020 VA examination, his flexion was reduced to 90 degrees. The Board notes these were the greatest limitations of motion found, including during flare-ups and with repeated use over time. See Sharp, 29 Vet. App. at 35-36. During the December 2020 VA examination, the examiner noted the that the Veteran put forth suboptimal effort during the range of motion testing, so the results were invalid for rating purposes. The examiner explained that the suboptimal effort of the left knee was noted based on observation of the Veteran's ability to sit in a chair with knee flexed to at least 90 degrees, but he would only flex the left knee approximately 20 degrees during the examination. Thereafter, in a January 2021 statement, the Veteran disputed this examiner's report. The Veteran indicated that he did not demonstrate flexion to 90 degrees as reported by the examiner. To the contrary, he stated he had to maintain his knee in an extended position throughout the examination, including while sitting in a chair before the examination. Moreover, he explained, he had been sitting in a chair behind the examiner's computer after the examination, so the examiner's view of his knee would have been obstructed. The Board does not doubt the Veteran's contention. However, the Board finds no reason to call into question or discount the validity of the medical findings reported by the VA examiner. The examiner is presumed to have competently executed his responsibilities to accurately report his findings. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (the Board may presume that the VA medical staff competently discharged their duties); Hilkert v. West, 12 Vet. App. 145 (1999) (the competency of a VA examiner is presumed, absent a showing of some evidence to the contrary). The examiner thoroughly explained his findings and observations. The Veteran's assertions do not rebut the presumption of competency. In fact, when read carefully, the Veteran's statement does not truly contradict the examiner's findings. The Veteran's statement concedes that he was able to bend his knee to sit, which is the basis for the VA examiner's range of motion assessment. In this regard, only the VA examiner was in a position to judge whether the Veteran was putting forth maximum effort. The law affords considerable deference to an observer's assessment of demeanor. See, e.g., Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Moreover, the observation of a patient's demeanor in a clinical setting is medical matter. As such, the Board has no basis to doubt the VA examiner's assessment and finds the December 2020 VA examination and opinion to be adequate. Because flexion to 30 degrees was not demonstrated throughout the appeal period, including during several VA examinations, a rating in excess of 10 percent under DC 5260 is not assignable. 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). Diagnostic Code 5256, regarding ankylosis, is not applicable, as the evidence confirms that he did not have ankylosis. Diagnostic Code 5257 regarding recurrent subluxation and lateral instability is not for application. The VA examinations repeatedly show negative joint stability testing, including in recent November 2019 and December 2020 VA examinations. The Veteran also did not voice complaints indicating subluxation or lateral instability in his left knee. A July 2018 VA nursing fall risk assessment classified the Veteran as a fall risk after he reported falling within the past month "all the time" as "[m]y knee locks up on me." The Board finds that this indication does not support a higher rating. First, it does not specify which knee to which he is referring. Generally, the VA medical records proximate in time to this July 2018 assessment document complaints involving the right knee. See, e.g., 8/21/2017 VA Nursing Telephone Encounter. Even if it referred to the instant left knee disorder, the report indicates falling due to locking of the knee rather than subluxation or lateral instability. Finally, this notation is an isolated complaint. All other evidence, including similar fall risk assessments before and after this one, show that the Veteran denied such complaints of falling. Moreover, in April 2018 and January 2019, the Veteran denied a history of falling within the past 12 months. These were the nearest fall risk assessments proximate in time to the July 2018 assessment, and the time periods overlapped the 12-month period covered by the July 2018 assessment. Thus, where he endorsed a history of falls in July 2018 during the past 12 months, he denied any falls during assessments which occurred within the prior 12 months. More recently, the examiner at the December 2020 VA examination could not perform joint stability testing as the Veteran would not achieve flexion of the knee of at least 30 degrees due to fear of pain. Thus, overall, it cannot be concluded that the isolated complaint in July 2018 is consistent with recurrent fall complaints thereafter. The Board determines this July 2018 finding does not suggest the presence of recurrent subluxation or lateral instability. Further, there is no showing of 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. Hence, a separate rating under DC 5257 is not assignable. Diagnostic Code 5258 and DC 5259 are not applicable as the evidence, most recently the November 2019 and December 2020 VA examinations, establishes that there was no involvement of the semilunar cartilage. A higher or separate rating is also not warranted under DC 5261, regarding limitation of extension. The Veteran's extension was to zero degrees throughout the record, including at VA examinations dated February 2012, December 2012, November 2019 and December 2020. Moreover, no limitation in extension was indicated in July 2012 and November 2012 VA physical therapy consultations. The Board notes the Veteran's extension was measured to 5 degrees at the September 2020 VA physical therapy consultation. The 5 degrees of extension is consistent with no more than a noncompensable rating under DC 5261. A rating under DC 5262 or DC 5263 is not assignable as the evidence shows that there is no impairment of the tibia and fibula or genu recurvatum. At an October 2021 VA psychiatric examination, the Veteran complained of gaining 20 pounds in part from not exercising due to knee pain. The evidence does not show obesity and even if it did, obesity is not a compensable disability. It may be an intermediate step between a service-connected disability and a secondary disability. Here, a secondary claim is not reasonably raised as a component of the instant left knee claim. Walsh v. Wilkie, 32 Vet. App. 300, 307 (2020); see also Garner v. Tran, 33 Vet. App. 241, 248 (2021). Thus, a higher rating, including on the basis of referral for an extraschedular rating, is not warranted. 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. 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). REASONS FOR REMAND An initial compensable evaluation prior to November 29, 2019, and in excess of 10 percent thereafter, for nummular eczema with keratosis pilaris is remanded. This issue is remanded for a new VA examination. The Board last remanded the claim in October 2020 to obtain a VA opinion addressing whether any medication the Veteran took for the skin disability qualified as a "systemic" therapy under the rating schedule in effect prior to an August 14, 2018 amendment. Upon remand, a VA opinion was provided in December 2020. The VA examiner found that none of the Veteran's medications were immunosuppressive. The examiner found no evidence of the Veteran taking systemic steroids or other systemic medications for nummular eczema with keratosis pilaris. The examiner observed that the Veteran had used 1% hydrocortisone, and the current medication reconciliation notes showed clobetasol (hands) and triamcinolone (other affected areas). The examiner explained that, if used properly, these medications should not cause immunosuppression in any form, and none of the other medications would be considered immunosuppressive or have a steroid-like function. The examiner also pointed out that the Veteran is noted to use topical urea/ammonium lactate products, which are emollients and are hydrophilic. The examiner summarized that the Veteran has used topical steroids, but there is no evidence of chronic or regular systemic steroid use. Since that time, the Veteran submitted a private (non-VA) dermatology report from June 2021. These records describe a rash on the bilateral arms, legs, and back, which would come and go, and involved mild itching. The dermatologist observed erythematous scaly papules to the bilateral lower legs; erythematous scaly greasy papules and plaques to the bilateral axilla; and folliculocentric flesh colored papules on the bilateral posterior arms, back region, bilateral flanks, and bilateral thighs. The dermatologist described the condition as involving a body surface area of 6 percent and 15 percent. The provider started the Veteran on Clotrimizole ointment for the skin eruption in the armpit area consistent with atopic dermatitis. The provider specified that treatment for the keratosis pilaris was unnecessary. The examiner also recommended keeping the lesions moisturized. This private assessment is probative, but the provider's findings as to the total surface area involved are unclear. In the examination report, the examiner identified three different parts of the body involved, but only gave two different body surface area measurements. It is not clear if the examiner included all three components in the body surface area percentages covered. One of the areas of the body described by the private examiner included atopic dermatitis in the armpits. To this end, VA medical records from approximately July through September 2020 document the Veteran's report of atopic dermatitis in the armpits secondary to deodorant use. At present, the atopic dermatitis identified in the armpit/axilla area does not appear consistent with the service-connected disability, which only involves nummular eczema with keratosis pilaris. This is significant because the body surface area involved, as measured by the June 2021 private dermatologist, might qualify the Veteran for a higher rating if it only included the service-connected disability. If it included the apparently nonservice-connected atopic dermatitis, the total body surface area would not qualify for a higher rating. Based on the lack of clarity in the private examination report from June 2021, remand is needed to clarify (1) whether the atopic dermatitis in the axilla area is part of the service-connected disability, and (2) what the current total surface body area of the service-connected disability involves. The Veteran may obtain this information from the private examiner if he so chooses. See Savage v. Shinseki, 24 Vet. App. 259, 269-71 (2011). Otherwise, however, the Board finds that remand for a new VA examination is necessary. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected skin disability. (a.) The examiner should specify whether the atopic dermatitis in the axilla area is a component of the service-connected disability, which currently consists of nummular eczema with keratosis pilaris. (b.) The examiner should provide a full description of the service-connected disability and report all signs and symptoms necessary for evaluating the Veteran's service-connected disability under the rating criteria. To the extent possible and where applicable, the examiner should distinguish between the symptoms associated with the service-connected disability and all symptoms associated with any nonservice-connected skin conditions. (c.) For any medication taken, the examiner must identify (1) whether it is a systemic therapy (including a topical medication that affects the entire body as a whole in its treatment of the skin condition), and (2) whether it is, or is like, a corticosteroid or immunosuppressive drug. If any medication is not equivalent, it should be explained why this is so. BRANDON B. ISAACS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.