Citation Nr: 22015075 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-12 161 DATE: March 16, 2022 ORDER Entitlement to a disability rating in excess of 10 percent for a left knee disability characterized as patellofemoral pain syndrome, is denied. Entitlement to a disability rating in excess of 10 percent for a right knee disability characterized as patellofemoral pain syndrome, is denied. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran's patellofemoral pain syndrome of the right knee is manifested by pain, and limitation of flexion to no more than 80 degrees and limitation of extension of 10 degrees. 2. Throughout the appellate period, the Veteran's patellofemoral pain syndrome of the left knee is manifested by pain, and limitation of flexion to no more than 80 degrees and limitation of extension of 10 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for patellofemoral pain syndrome of the right knee have not been met. 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 Codes 5260, 5261. 2. The criteria for a rating in excess of 10 percent for patellofemoral pain syndrome of the right knee have not been met. 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 Codes 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps form November 1996 to April 1999. This matter comes before the Board of Veterans' Appeals (Board) from a decision by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In March 2017 the Veteran submitted a VA Form 9 in which he requested a hearing. A September 2019 letter advised the Veteran that his hearing was scheduled for October 2019. The Veteran failed to appear for the hearing, and his hearing request is therefore deemed withdrawn. 38 C.F.R. § 20.702(d). The Board previously remanded this matter in September 2021. The Veteran contends that his bilateral knee disabilities are each more severe than currently rated. The Veteran's bilateral patellofemoral pain syndrome has been evaluated under Diagnostic Code 5260, limitation of flexion of the knee; the knees are rated spearately. The appellate period is May 5, 2015, or one year prior to the Veteran's May 2016 claim for an increase rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 ; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (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." The spine has no opposite 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 Veteran underwent a VA knee examination in June 2016. During the examination, the Veteran reported that he had experienced aching, decrease range of motion and severe cramping in his knees. The Veteran stated that his left knee was worse than his right knee. The Veteran reported flare-ups and noted that during a flare-up he had difficulty walking and more pain than normal. The Veteran reported functional impairments with running, squatting, and trouble standing and walking for long periods. Upon examination of the right knee, the Veteran had 0 to 130 degrees flexion and 130 to 0 degrees extension in the right knee. The examiner found the Veteran's range of motion contributed to functional loss of running, squatting, and trouble standing and walking for long periods. The examiner noted that the Veteran exhibited pain at flexion and extension. The examiner found objective evidence of localized tenderness or pain on palpitation in the right knee. There was evidence of pain with weight bearing and objective evidence of crepitus. Upon examination of the left knee, the Veteran had 0 to 120 flexion and 120 to 0 degrees extension. The examiner found the Veteran's range of motion contributed to functional loss of running, squatting, and trouble standing and walking for long periods. The examiner noted that the Veteran exhibited pain at flexion and extension. The examiner found objective evidence of localized tenderness or pain on palpitation in the left knee. There was evidence of pain with weight bearing and objective evidence of crepitus. The examiner found the Veteran was able to perform repetitive use testing with at least three repetitions. The examiner found there was no additional loss of function or range of motion after three repetitions in both knees. The examiner noted that the Veteran's knee examination was not conducted during a flare-up and the examiner was unable to determine whether pain, fatigability or incoordination significantly limited functional ability or provide range of motion measurements during a flare-up because he was unable to replicate a flare-up. The examiner further noted that the Veteran had disturbance of locomotion and interference with standing on both the left and right side. The examiner found that the Veteran's bilateral knee disabilities impact his ability to perform occupational tasks of running, squatting, and standing and walking for long periods. In October 2021, the Veteran underwent another VA knee examination. During the examination the Veteran reported that his bilateral knee condition had worsened. The Veteran stated he had knee pain with walking, standing, and going downstairs. The Veteran did not report any flare-ups. The Veteran reported functional impairments of inability to stand or walk for prolonged periods and difficult bending his knees. Upon examination of the right knee, the Veteran had abnormal range of motion that contributed to the functional loss of difficulty bending the knee. The examiner found the Veteran had a flexion endpoint of 100 degrees and extension endpoint of 0 degrees. The examiner found that passive range of motion was same as active range of motion. The examiner found evidence of pain on active motion and passive motion. The pain caused functional loss of inability to stand or walk for prolonged periods and difficultly bending at the knees. The examiner did not find objective evidence of crepitus. The examiner found evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Upon examination of the left knee, the Veteran had abnormal range of motion that contributed to the functional loss of difficulty bending the knee. The examiner found the Veteran had a flexion endpoint of 100 degrees and extension endpoint of 0 degrees. The examiner found that passive range of motion was same as active range of motion. The examiner found evidence of pain on active motion and passive motion. The pain caused functional loss of inability to stand or walk for prolonged periods and difficultly bending at the knees. The examiner did not find objective evidence of crepitus. The examiner found evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions with both knees. The examiner found there was no additional loss of function or range of motions after the three repetitions. The examiner fond that the Veteran had pain and fatigability in both knees with repeated use over time. The examiner estimated that both knees had range of motion after repeated use over time of flexion endpoint of 80 degrees and extension endpoint of 10 degrees. The examiner found no additional factors contributing to either of the Veteran's knee disabilities. The examiner found functional impact of the Veteran's knee disabilities was the Veteran could not stand or walked for prolonged periods and difficulty bending at the knees. In January 2017, the Veteran stated that flexion in both of his knees was limited to less than 45 degrees. The Veteran stated that his left knee had a pain level of 8 out of 10. He also stated that the Veteran had pain of 7 out 10 in the right knee. The Veteran noted he had severe pain in both knees and swelling each day. In the January 2022 informal hearing presentation (IHP), the Veteran's representative argued that argued that the Veteran's use of stairs caused flare-ups in his knees. The Veteran's representative argued that the October 2021 VA examination is not adequate because it did not conform with Sharp v. Shulkin. 29 Vet. App. 26 (2017). The Board considers the Veteran's representative's argument; however, it finds that the October 2021 VA examination complies with Sharp. The Veteran did not report any flare-ups in either of his knees, though he was specifically asked about such at the examination. The Board views that the Veteran's report of pain caused by the use of stairs is not a flare-up but an underling functional impairment of his bilateral knee disabilities. If the Veteran does not report, he experiences flare-ups and there is no evidence the Veteran experiences flare-ups an examiner can reasonably conclude that the Veteran's knee disabilities do not cause flare-ups. Moreover, the examiner discussed the actual functional impairment of the Veteran when using stairs. Therefore, the Board finds that the October 2021 VA examination is adequate. Regarding the Veteran's statement that the flexion in his knees was limited to less than 45 degrees, the Board finds that statement is not competent. The Veteran has not shown he is competent to provide measurements of flexion in degrees of his knees. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, the Veteran's statements even if were to be considered competent, are not credible. The Veteran's reports of limitation of flexion are inconsistent with the objective record. VA examination document at worst the Veteran's flexion is 80 degrees after repeated over time, which is nearly double the range of motion the Veteran claims. Based on a review of the evidence outlined above, the Board finds that with respect to a rating in excess of 10 percent for limited range of motion of the left and right knee, given that the VA examinations do not reflect limited range of motion sufficient for a compensable rating of the left or right knee, there is no evidence to support a finding of additional functional loss for higher ratings. Under Code 5260, flexion of the knee must be limited to 45 degrees for a compensable rating. The June 2016 VA examination showed flexion of the left knee limited to 120 degrees. Considering functional loss from pain and repeated use over time, the October 2021 VA examination reflects, at worst, flexion limited to 80 degrees. In VAOPGCPREC 9-04, General Counsel determined that separate disability ratings could be assigned under Diagnostic Codes 5260 and 5261 for disability of the same joint. Under Code 5261, extension of the knee must be limited to 10 degrees for a compensable rating. The June 2016 VA examination findings did not demonstrate the Veteran's extension was limited to 10 degrees in either knee. The Board notes that the October 2021 VA examination findings did not demonstrate the Veteran's extension was limited to 10 degrees in either knee. However, the October 2021 VA examiner estimated that the Veteran's extension was limited to 10 degrees due to repeated use over time in both knees. Such findings require a disability rating of 10 percent for each due to limitation of extension. The Board finds that despite providing 10 percent disability ratings for each the left and right knee limitation of extension, higher disability ratings for the Veteran's knees are still denied. As noted above, the Veteran's knee disabilities do not warrant a compensable rating under limitation of flexion but are rather rated based on painful motion. As the October 2021 VA examination demonstrates the Veteran's knee disabilities cause compensable ratings for limitation of extension with pain being a symptom of those disabilities. Further, to assign two, separate compensable ratings based on painful motion under two separate diagnostic codes (i.e., under Diagnostic Codes 5260 and 5261) would be in violation of the rule of pyramiding. See 38 C.F.R. § 4.14; VAOPGCPREC 9-04. The Veteran's complaints of knee pain, limited range of motion and swelling have been taken into consideration, but there is no evidence that his bilateral knee patellofemoral pain syndrome results in significant or additional functional loss beyond that contemplated by the assigned 10 percent evaluation. See 38 C.F.R. § 4.71, Codes 5260-5261; 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell, DeLuca, Correia and Sharp, supra. The Board considered other Diagnostic Codes which the Veteran may be provided higher rating for his knees. A higher rating is not warranted under Diagnostic Code 5256, as there is no evidence of ankylosis of either knee. A higher rating is not warranted under Diagnostic Code 5257, as there is no medical evidence of instability or recurrent subluxation of the knees, nor has the Veteran asserted in any subjective statements that he has experienced instability of either knee. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). There is no evidence to show dislocated semilunar cartilage in either knee or symptomatic removal of semilunar cartilage. Thus, a higher rating is not warranted under Diagnostic Codes 5258 or 5259. Finally, as the evidence does not show impairment of the tibia and fibula or genu recurvatum, a higher rating is not warranted under Diagnostic Codes 5262 or 5263. In conclusion, the Board finds that the persuasive weight of the evidence is against the Veteran's claim for a rating in excess of 10 percent for patellofemoral pain syndrome of the right and left knee. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.