Citation Nr: 22015307 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 12-21 013A DATE: March 17, 2022 ORDER Entitlement to a disability rating in excess of 10 percent prior to March 11, 2021, and in excess of 20 percent thereafter, for chondromalacia patella with strain and degenerative joint disease of the right knee is denied. Entitlement to a separate 10 percent rating for limitation of extension of the right knee due to chondromalacia patella, from March 11, 2021, is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a compensable rating, prior to March 11, 2021, and a rating in excess of 10 percent, since that date, for limitation of extension of the right knee due to chondromalacia patella, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to March 11, 2021, the Veteran's chondromalacia patella with strain and degenerative joint disease of the right knee was characterized by painful motion and limitation of knee flexion to at most 80 degrees, without recurrent subluxation or lateral instability of the right knee joint, and there was no significant additional loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, and incoordination with repeated use over time and during flare ups. 2. Effective March 11, 2021, the Veteran's chondromalacia patella of the right knee is characterized by flexion limited to at most 30 degrees during flare ups and with repeated use over time, without recurrent subluxation or lateral instability of the right knee joint. 3. Effective March 11, 2021, but no earlier, the Veteran's chondromalacia patella of the right knee results in limitation of extension to at most 10 degrees during flare ups and with repeated use over time. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent prior to March 11, 2021 for chondromalacia patella with degenerative joint disease of the right knee have not been met. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Codes 5003, 5256-74. 2. The criteria for a disability rating in excess of 20 percent effective March 11, 2021 for chondromalacia patella with degenerative joint disease of the right knee have not been met. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Codes 5003, 5256-74. 3. The criteria for a separate 10 percent rating, but no higher, for limitation of extension of the right knee due to chondromalacia patella, from March 11, 2021, but no earlier, have been met. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1991 to October 1997. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from September 2010 and August 2011 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2015, these issues were remanded for additional development. Specifically, the Board instructed the agency of original jurisdiction (AOJ) to, among other things, afford the Veteran an examination to assess the severity of his service-connected right knee disability. Pursuant to the Board's remand, additional VA knee examinations were conducted, most recently in March 2021. Therefore, the AOJ substantially complied with the Board's pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). In October 2021, the AOJ made the following determinations: awarded an increased (20 percent) rating for chondromalacia patella with strain and degenerative joint disease of the right knee, from March 11, 2021; and awarded a separate 10 percent rating for right knee limitation of extension, from August 2, 2021. The Board notes that while additional medical evidence has been added to the file subsequent to the most recent Supplemental Statement of the Case, dated December 2021, this evidence is not pertinent to the claims currently before the Board, and thus remand to the AOJ for consideration of this evidence is not required. The Board notes the Veteran has appealed additional issues via the Appeals Modernization Act (AMA). As those issues have been appealed under the AMA, they will be the subject of a subsequent Board action. As a final preliminary matter, the Board points out that the Veteran had also perfected an appeal with regard to the issues of entitlement to service connection for lumbar spine disability, osteoporosis, and sinusitis, and the Board remanded these issues in May 2015 for further development. The AOJ awarded service connection for degenerative disc disease, intervertebral disc syndrome, spinal stenosis, osteoporosis, and sinusitis by way of the October 2021 rating decision, and thereby resolved the appeal as to these issues. 1. Entitlement to a disability rating in excess of 10 percent prior to March 11, 2021, and in excess of 20 percent thereafter for chondromalacia patella with degenerative joint disease of the right knee The Veteran seeks increased ratings for her right knee disability, chondromalacia patella with strain and early degenerative joint disease. She asserts this disability has increased in severity, and higher ratings are warranted during the claim period. The Veteran's service-connected right knee disability has been rated under Diagnostic Code (DC) 5003-5260. DC 5003, for degenerative arthritis, refers to range of motion criteria for the affected joint. DC 5260 provides a noncompensable rating for flexion limited to 60 degrees, a 10 percent rating for flexion limited to 45 degrees, a 20 percent rating for flexion limited to 30 degrees, and a maximum 30 percent rating for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. In some cases, separate disability ratings are potentially available. "[E]valuation of a knee disability under DC 5260 does not preclude... separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259." Lyles v. Shulkin, 29 Vet. App. 107, 109 (2017). Use of DC 5260 also does not preclude a separate rating under DC 5257 (instability) or 5261 (leg extension). See English v. Wilkie, 30 Vet. App. 347, 350 (2018); VAOPGCPREC No. 9-2004 (Sept. 17, 2004). Starting with DC 5261, for limitation of extension, a noncompensable rating is warranted for extension limited to 5 degrees, a 10 percent rating requires evidence of leg extension limited to 10 degrees, a 20 percent rating for extension limited to 15 degrees, a 30 percent rating for extension limited to 20 degrees, a 40 percent rating for extension limited to 30 degrees, and a maximum 50 percent rating for extension limited to 45 degrees or greater. 38 C.F.R. § 4.71a, DC 5261. DC 5258 and 5259 provide for the evaluation of a meniscal disability. 38 C.F.R. § 4.71a. In the present case, however, there is no evidence in the record that the Veteran has dislocated or removed semilunar cartilage. As such, an increased or separate rating under these codes is not warranted. Finally, DC 5257, for other impairment of the knee, may be considered. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including DC 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021 the Board will consider both the old and the amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, DC 5257 (2020). "Slight," as relevant to a physical condition, is defined as "small of its kind or in amount." See Merriam-Webster's Collegiate Dictionary, 1173 (11th 2003). Moderate is generally defined as tending toward the mean or average amount or dimension. Id., at 798. Severe is generally defined as of a great degree: serious. Id., at 1140. Within the context of the old version of DC 5257, which established a successive, tiered rating structure, "severe" represented the highest or most extreme level of disability. As of February 7, 2021, DC 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. "Persistent" is defined as "existing for a long or longer than usual time or continuously." See Merriam-Webster's Collegiate Dictionary, 924 (11th 2003). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned 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 or bracing for ambulation. 38 C.F.R. § 4.71a, DC 5257 (effective February 7, 2021). Regarding 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 warrants a 30 percent rating, which is the highest allowable rating 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, 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. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a , Diagnostic Code 5257, Note (1). 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). Note (2). 38 C.F.R. § 4.71a, DC 5257 (effective February 7, 2021). Turning to the present case, the Veteran was afforded a February 2011 VA orthopedic examination. She reported constant pain of the right knee, such that she was unable to squat or kneel, or climb stairs. However, she denied hospitalization and/or surgery related to her right knee disability. On examination, she had flexion to 80 degrees and extension to -10 degrees. She was without instability, dislocation, subluxation, inflammation, grinding, effusion, or giving way, according to the examiner. X-rays of the right knee were negative for acute bony injury, exhibiting only mild narrowing of the medial compartment. Next, the Veteran underwent a VA examination in January 2015. On range of motion testing, she had flexion to 140 degrees and extension to 0 degrees. The examiner noted the Veteran experienced pain with motion but this did not result in any additional limitation of motion or other functional loss. Repetitive motion also did not result in any additional limitation of motion. The examiner also did not find pain, weakness, fatigability or incoordination resulted in any additional limitation of motion or functional loss. Muscle strength was 5/5 and the Veteran was without atrophy or ankylosis. Joint stability testing indicated the Veteran was without instability to anterior, posterior, medial, or lateral stress. No meniscal or cartilage disorders were noted. The Veteran reported using a knee brace on a regular basis. X-ray studies confirmed degenerative arthritis of the right knee. Another VA orthopedic examination was afforded the Veteran in March 2017. She again reported impairment in her ability to stand, walk, kneel, and bend at the right knee due to her disability, with worsening on flare-ups. She regularly used a right knee brace to aid her mobility. On examination, she had flexion to 90 degrees and extension to 0 degrees. Pain was noted with motion, palpation, and weightbearing. Crepitus was also present. Repetitive use did not result in any additional limitation of motion. Muscle strength was 5/5 and the Veteran was without atrophy or ankylosis. Joint stability testing indicated the Veteran was without instability to anterior, posterior, medial, or lateral stress. The Veteran was also without lateral instability or recurrent subluxation. There were no meniscal or cartilage disorders noted. An MRI study indicated the ligaments were all within normal limits, without evidence of joint effusion or meniscal abnormality. The examiner determined this disability did not prevent the Veteran from maintaining employment. In a September 2019 addendum, the examiner stated pain, weakness, fatigability or incoordination did not result in any additional limitation of motion or functional loss. Most recently, the Veteran was afforded a VA orthopedic examination in March 2021. She reported 4-5 flare-ups of her right knee pain per month, moderate to severe in intensity, by her report. On range of motion testing, she had flexion to 50 degrees, and extension to 0 degrees, with both passive and active range of motion. Pain was reported with and without weightbearing, and on both passive and active motion. The Veteran was unable to perform repetitive motion, according to the examination report, due to such factors as pain, weakness, fatigability, and lack of endurance. With repeated motion or during flare-ups, the examiner estimated flexion would be further reduced to 30 degrees, and extension to 10 degrees. Crepitus was observed. There was no atrophy or ankylosis present. There was no joint instability noted and the Veteran was also without lateral instability or recurrent subluxation. There was no meniscal or cartilage disorders noted. The Veteran denied any history of surgery on the right knee. She continued to regularly use a brace for the right knee. In November 2021, the Veteran's claims file was forwarded to a VA doctor in order to estimate functional loss due to pain during flare-ups based on the Veteran's lay statements describing functional loss and the severity, duration, and characteristics of flare-ups. See Sharp v. Shulkin, 29 Vet. App. 29, 33 (2017). The clinician reviewed the claims file in detail, but ultimately concluded such an estimation could not be provided regarding limitation of motion and other impairment during flare-ups, as "there are too many variables unanswered in medical record review alone." Considering first the period prior to March 11, 2021, for which a 10 percent rating has been awarded, the Board finds the evidence to persuasively weigh against an increased rating for this period. For all examinations of record during this period, the Veteran had flexion of the right knee to greater than 30 degrees. Thus, based on these findings alone, and without consideration of functional impairment, the next higher evaluation of 20 percent is not warranted. Additionally, as her extension was to 5 degrees or better, a separate compensable rating for limitation of extension is also not warranted for this period, without consideration of functional impairment. To the extent the Veteran has reported, and clinical evidence has demonstrated, pain associated with motion of the knee, the 10 percent rating already assigned contemplates painful motion. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). With respect to functional impairment, there was pain associated with the Veteran's right knee disability during the period prior to March 11, 2021 and the Veteran reported flare ups during this period. The examiner who conducted the January 2015 examination indicated that the Veteran's knee pain did not result in any additional limitation of motion or other functional loss, that repetitive motion did not result in any additional limitation of motion, and that pain, weakness, fatigability, or incoordination did not result in any additional limitation of motion or functional loss. The examiner who conducted the March 2017 examination indicated that repetitive use did not result in any additional limitation of motion, and that pain, weakness, fatigability or incoordination did not result in any additional limitation of motion or functional loss. The Veteran is competent to report the symptoms associated with her service-connected right knee disability and the extent of her impairment following repetitive use and during flare ups, and the Board has no reason to challenge the credibility of her contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Regardless of the competent and credible reports of flare ups, pain, and other functional impairments, and despite the fact that painful motion was documented, the most persuasive evidence supports the conclusion that the Veteran's knee symptoms most closely approximated the criteria for at most a single 10 percent rating for painful knee motion under DC 5260 during the entire claim period prior to March 11, 2021. Specifically, the above evidence reflects that the flare ups and other functional impairments were not so severe, frequent and/or prolonged to warrant the next higher percent ratings at any time during this period. The most persuasive evidence shows that even considering pain, flare ups, and other functional factors, the Veteran's knee symptoms were not shown to be so disabling during the claim period prior to March 11, 2021 to actually or effectively result in limitation of knee flexion more nearly approximating 30 degrees or limitation of knee extension more nearly approximating 10 degrees, which are the requirements for a 20 percent rating for limitation of knee flexion under DC 5260 and a compensable (10 percent) rating for limitation of knee extension under DC 5261, respectively. Therefore, a rating higher than the 10 percent rating for painful limitation of knee flexion already assigned for this period is not warranted by the record, and no separate rating for limitation of knee extension is warranted during this period, under either the old or the revised rating criteria. Regarding a separate compensable rating for instability, VA examiners all found the Veteran was without lateral instability or recurrent subluxation of the right knee for the entirety of this period. VA examination reports for this period consistently noted the Veteran's knee was without anterior, posterior, medial, or lateral instability. Thus, under either the old or the new criteria, effective on and after February 7, 2021, the Veteran's right knee disability does not warrant a separate compensable rating for this period. Next, the Board must consider entitlement to a disability rating in excess of 20 percent, effective March 11, 2021. This increased rating was awarded under the same criteria, DC 5260. The Board further notes that the Veteran has been granted a separate compensable rating of 10 percent, effective August 2, 2021, for her limitation of extension of the right knee. Because, however, the March 11, 2021 VA examination demonstrated limitation of extension to 10 degrees during flare-ups and with repeated use over time, the Board concludes that the award of a separate 10 percent rating for limitation of extension should be made effective from that date, March 11, 2021. The remainder of the competent evidence for this period is, however, against the award of a disability rating in excess of 20 percent for limitation of flexion of the right knee, or separate or increased ratings under any other pertinent diagnostic criteria. During this period, the Veteran had flexion of the right knee to greater than 15 degrees. This evidence, by itself and without consideration of additional functional impairment, warrants no more than a 20 percent rating under DC 5260. Additionally, as the Veteran's extension was to 10 degrees or better, a higher rating for limitation of extension under DC 5261 is also not warranted for this period. With respect to functional impairment, there was pain associated with the Veteran's right knee disability during the period since March 11, 2021 and the Veteran reported flare ups during this period. The examiner who conducted the March 2021 examination indicated that with repeated motion or during flare-ups, knee flexion would be to 30 degrees, and extension would be to 10 degrees. The Veteran is competent to report the symptoms associated with her service-connected right knee disability and the extent of her impairment following repetitive use and during flare ups, and the Board has no reason to challenge the credibility of her contentions. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337. Regardless of the competent and credible reports of flare ups, pain, and other functional impairments, and despite the fact that painful motion was documented, the most persuasive evidence supports the conclusion that the Veteran's knee symptoms most closely approximate the criteria for at most a 20 percent rating for painful knee motion under DC 5260 and a 10 percent rating for limitation of knee extension under DC 5261 during the entire claim period since March 11, 2021. Specifically, the above evidence reflects that the flare ups and other functional impairments are not severe, frequent and/or prolonged to warrant the next higher percent ratings at any time during this period. The most persuasive evidence shows that even considering pain, flare ups, and other functional factors, the Veteran's knee symptoms are not shown to be so disabling during the claim period since March 11, 2021 to actually or effectively result in limitation of knee flexion more nearly approximating 15 degrees or limitation of knee extension more nearly approximating 15 degrees, which are the requirements for a 30 percent rating for limitation of knee flexion under DC 5260 and a 20 percent rating for limitation of knee extension under DC 5261, respectively. Therefore, ratings higher than 20 percent and 10 percent for limitation of knee flexion and extension, respectively, are not warranted during this period, under either the old or the revised rating criteria. Regarding a separate compensable rating for instability, VA examiners all found the Veteran was without lateral instability or recurrent subluxation of the right knee for the entirety of this period. The March 2021 VA examination report noted the Veteran's knee was without anterior, posterior, medial, or lateral instability. Thus, under either the old or the new criteria, the Veteran's right knee disability does not warrant a separate compensable rating for this period based on lateral instability, recurrent subluxation, or patellar instability. Moreover, there is no evidence of knee ankylosis at any time during the claim period. Ankylosis is defined in general as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet. App. 524 (1999) (citing Dorland's Illustrated Medical Dictionary (28TH Ed. 1994) at 86). The Court has held that a veteran may be entitled to a rating based on ankylosis if he experiences the functional equivalent of ankylosis when considering the provisions of 38 C.F.R. §§ 4.40 and 4.45. Chavis v. McDonough, 34 Vet. App. 1, 23-24 (2021). In this case, the examinations conducted during the claim period indicate that there was no actual knee ankylosis. Also, the Board finds that even considering knee pain and other functional factors, the Veteran has not experienced the functional equivalent of knee ankylosis at any time during the claim period. In other words, the most persuasive evidence shows that even considering pain and other functional factors, the Veteran's knee symptoms have not been so disabling to actually or effectively result in immobility or fixation of the knee at any point in the ranges of knee motion. Therefore, a higher rating is not warranted on the basis of ankylosis/functional equivalent of ankylosis at any time during the claim period under either the old or the revised regulations. See 38 C.F.R. § 4.71a, DC 5256 (in effect prior to and since February 7, 2021). In conclusion, the Board finds a disability rating in excess of 10 percent prior to March 11, 2021, and in excess of 20 percent thereafter for chondromalacia patella with degenerative joint disease of the right knee is not warranted. However, a separate rating of 10 percent, but no higher, for limitation of knee extension is warranted effective March 11, 2021. In denying any additional increased ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND Entitlement to a TDIU is remanded. Subsequent to receipt of her initial TDIU claim in August 2010, the Veteran has been awarded service connection and increased ratings for multiple disabilities, such that she is in receipt of a schedular 100 percent rating, effective December 23, 2020. Upon receipt of her initial TDIU claim, the Veteran was afforded a VA general medical examination in August 2010. That examiner opined that the Veteran's service-connected disabilities did not, in and of themselves, render her unemployable. Subsequent to that determination, however, the Veteran was granted service connection for additional disabilities. To date, no VA examination or opinion has been obtained which addresses the Veteran's employability in light of her current service-connected disabilities from August 2010 to the present. A remand is therefore required in order for such an examination to be afforded her. Also, at the time the Veteran's TDIU application was received, she was not employed. Subsequently, VA vocational rehabilitation and other records indicate she has been employed on a fulltime basis at least some of the time between August 2010 and the present. An attempt should be made to determine if the Veteran is currently employed or was employed on a fulltime basis since August 2010. Lastly, all additional outstanding VA treatment records should be secured upon remand. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a TDIU claim form, to include a full history of her employment and earnings from 2010 to the present. 2. Obtain the Veteran's outstanding VA treatment records. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician regarding the current severity and functional impairment of employability of her service-connected disabilities. The Veteran has been granted service connection for the following: urinary incontinence; obstructive sleep apnea; status post total abdominal hysterectomy; allergic rhinitis; degenerative disc disease with intervertebral disc syndrome; chondromalacia patella of the right knee; limitation of extension of the right knee; chondromalacia patella of the left knee; radiculopathy of the left lower extremity; tinnitus; right hip strain; limitation of flexion of the right hip; impairment of the right hip; ovarian cysts; osteoporosis; scar associated with urinary incontinence; female sexual arousal disorder; gastroesophageal reflux disease; and sinusitis. The examiner should elicit from the Veteran her complete educational, vocational, and employment history and should note her complaints regarding the cumulative impact of her service-connected disabilities on employment. The examiner should identify all limitations or functional impairment caused solely by her service-connected disabilities. The examiner must provide reasons for any opinion given. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.