Citation Nr: 22016648 Decision Date: 03/23/22 Archive Date: 03/22/22 DOCKET NO. 16-42 534 DATE: March 23, 2022 ORDER A rating higher than 10 percent for a service-connected right knee patella fracture (residuals) is denied. FINDING OF FACT At worst, service-connected right knee patella fracture (residuals) more nearly approximate flexion to 45 degrees and functional loss due to pain variably after repetitive use in time or during flare-ups. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for service-connected right knee patella fracture (residuals) have not been met. 38 U.S.C. §§ 1155. 5107; 38 C.F.R. §§ 4.10, 4.40, 4.45. 4.59, 4.71a, Diagnostic Codes 5003, 5055, 5010, 5256-63. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1986 to August 1986 and from September 1987 to October 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision. The Board remanded the issue on appeal for additional evidentiary development in May 2021. There has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). INCREASED RATINGS The Veteran asserts that she warrants an increased rating for her disability, as articulated above. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several Diagnostic Codes; however, the critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. Deluca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, 8 Vet. App. 202. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable Diagnostic Code. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Musculoskeletal VA examinations, to be adequate, must address particular issues when are where that are practicable and medically possible to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. See Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The RO has rated the Veteran's right and left knee disabilities under 38 C.F.R. § 4.71a, Diagnostic Code 5260-5010. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the rating. 38 C.F.R. § 4.27. Disabilities of the knee and leg are generally rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263. Prior to February 7, 2021, under Diagnostic Code 5257 for recurrent subluxation or lateral instability, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of the knee; a 20 percent rating is warranted for medical evidence showing that the recurrent subluxation or lateral instability can be characterized as moderate; and a 30 percent rating is warranted for recurrent subluxation or lateral instability which medical evidence discloses can be characterized as severe. The rating criteria pertaining to Diagnostic Code 5257 were revised effective February 7, 2021. A 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker; a 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker; and a 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Under Diagnostic Code 5260 for limitation of flexion, a noncompensable rating is assigned for flexion limited to 60 degrees; a 10 percent rating is assigned for flexion limited to 45 degrees; a 20 percent rating is assigned for flexion limited to 30 degrees; and a 30 percent rating is assigned for flexion is limited to 15 degrees. Under Diagnostic Code 5261 for limitation of extension, a noncompensable rating is assigned for extension limited to 5 degrees; a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent rating is assigned for extension limited to 20 degrees; a 30 percent rating is assigned for extension is limited to 20 degrees; a 40 percent rating is assigned for extension is limited to 30 degrees; and a 50 percent rating is assigned for extension is limited to 15 degrees. Separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Diagnostic Code 5256 pertains to ratings for ankylosis of a knee. Here, the Board notes that the Court has scrutinized the "meaning" of ankylosis extensive. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); Chavis v. McDonough, No. 18-2928 (April 16, 2021) ("flare-ups resulting in symptoms more nearly approximating ankylosis can warrant a higher rating under the general rating formula"). Diagnostic Code 5262 applies to ratings for impairment of the tibia and fibula. Diagnostic Code 5258 applies to a dislocated semilunar cartilage. Diagnostic Code 5259 applies to removal of the semilunar cartilage. Diagnostic Code 5263 applies to rating genu recurvatum. The rating criteria pertaining to Diagnostic Code 5262 were revised effective February 7, 2021. However, as those Codes are not applicable in this matter, and the February 7, 2021 effective revision does not require further discussion. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court held that under 38 C.F.R. § 4.71, a separate evaluation may be assigned for meniscal problems under Diagnostic Codes 5258 or 5259, even when ratings are in effect under Diagnostic Codes 5257 and 5261. In English v. Wilkie, the Court held that "nothing in DC 5257 provides that objective medical evidence is required to award a rating for [knee] instability itself." 30 Vet. App. 347, 352 (2018). The Board must also consider functional impairment with respect to the baseline range of motion (ROM) noted during clinical evaluation. English v. Wilkie, 30 Vet. App. 347 (2018) (the Board must adequately explain how it considered functional loss due to pain, including during flare-ups). When considering disability of the musculoskeletal system, arthritis is considered. An evaluation of traumatic arthritis, Diagnostic Code 5010, is rated under the criteria for Diagnostic Code 5003, which in turn evaluates disabilities based on the degree of limitation of motion under the appropriate Diagnostic Codes. 38 C.F.R. § 4.71a. If the disability is noncompensable under the appropriate Diagnostic Code for the joint involved, a 10 percent rating will be for application for such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a. The rating criteria pertaining to Diagnostic Code 5010 was revised effective February 7, 2021. Posttraumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under an affected joint. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Evidence and Analysis The Veteran filed an informal claim for the benefit sought via telephonic contact on April 15, 2013. See April 15, 2013 VA 21-0820. In December 2013, the Veteran reported for a VA right knee examination. A clinician reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriate evaluation (hereinafter "VA exam protocols"). The Veteran endorsed flare-ups of increased pain "48xyr" lasting from 24 to 48 hours. During flare-ups, the Veteran stated that she has little ability to walk and cannot perform physical activity. The Veteran had right knee flexion to 45 degrees with pain at 30 degrees, and extension to zero degrees without pain. (The clinician made findings as to the contralateral joint). The Veteran was able to perform right knee repetitive-use testing (of at least three repetitions), without additional loss in range of motion. As such, the Veteran did not have functional loss and additional limitation in range of motion at this index. However, the clinician reported contributing factors of loss after repetitive use of less movement than normal; pain on movement; and swelling. Pain significantly limited functional ability during flare-ups and/or repetitive use. The clinician could not translate this into degrees but by history there was pain and swelling. The was pain on palpation of the right epicondyl/patella. The Veteran maintained full muscle strength. There was no evidence of instability, patellar subluxation, shin splits (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or other tibial and/or fibular impairment. Moreover, there was no evidence of a meniscus (semilunar cartilage) condition. The clinician indicated that the Veteran had undergone a stabilization of a right patella fracture; current residuals consisted of right knee pain and discernable changes in the right knee cap. The Veteran reported that she did not use any form of assistive device for locomotion. X-ray imaging did not disclose with arthritis or recurrent patellar subluxation. As to functional impact on the Veteran's ability to perform any occupational task, the clinician indicated limitations of lifting 10 pounds, walking two city blocks, sitting/standing at one interval for one hour, and sitting/standing during an 8-hour day for 4 hours. In a January 2014 private physical therapy (PT) record), a clinician reported that the Veteran had pain-free right knee range of motion of 70 degrees. In her April 2014 notice of disagreement (NOD), the Veteran reported that her right knee swelled. She also contended that she had right knee arthritis, which impacts her ability to drive, run, jump, or bend down (without experiencing pain). In her substantive appeal, the Veteran added that she underwent PT. In a May 2016 VA notation, a clinician indicated that the Veteran endorsed right knee pain and has been approved for PT. In a November 2016 VA record, a clinician reported that the Veteran indicated that she worked at a supermarket picking up boxes and standing for 8 hours each workday. In August 2019, the Veteran reported for a VA examination. The clinician followed VA exam protocols. The Veteran reported flare-ups with prolonged standing, walking, and standing. As to functional loss and impairment, the Veteran conveyed that she cannot run, squat, walk, stand, or climb for prolonged times. The Veteran had right knee flexion to 100 degrees, with right knee extension to zero degrees. Passive range of motion was the same as active range of motion. (The clinician made findings as to the contralateral joint). Also, abnormal range of motion did not contribute to functional loss. There was no objective evidence of pain with weight bearing, non-weight bearing or crepitus. The Veteran was able to perform right knee repetitive-use testing (of at least three repetitions), without additional loss in range of motion. Neither pain, fatigue weakness, lack of endurance, or incoordination contributed to function loss at this index. The clinician reported that pain contributed to functional loss without repeated use over time; however, there was no change whatsoever in degrees (The Veteran had right knee flexion to 100 degrees, with right knee extension to zero degrees. The clinician provided the exact same findings as to flare-ups. No additional factors contributed to this disability. The Veteran maintained full muscle strength. There was no objective evidence of ankylosis, instability, right meniscus conditions, patellar subluxation, shin splits (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or other tibial and/or fibular impairment. This clinician indicated that the Veteran had undergone a procedure for a right patellar fracture in April 1988; the current residuals of this procedure consist of chronic pain. As to functional loss on the Veteran's ability to perform any occupational task, the clinician opined that the Veteran endorsed that she could not walk, stand, sit, or drive for prolonged periods of time. In December 2021, the Veteran reported for a VA examination. The clinician followed VA exam protocols. The Veteran did not report flare-ups. The Veteran endorsed functional loss of difficulty sitting, standing, walking, or driving for prolonged periods. The Veteran did not report right knee instability and there was no history of recurrent subluxation or frequent effusion. The Veteran had right knee flexion to 120 degrees with pain and extension to zero degrees. Abnormal range of motion did not contribute to functional loss. Passive range of motion replicated those of active range of motion. The clinician also made findings as to the contralateral joint. There was evidence of pain on active motion and passive motion which caused functional loss; however, there was not evidence of pain at other indices. There was evidence of crepitus and mild tenderness in palpation. . The Veteran was able to perform bilateral repetitive-use testing (of at least three repetitions), with a loss of 5 degrees of flexion. Pain caused functional loss. After repetitive use over time, right knee flexion was to 110 degrees and extension was to zero degrees. As noted above, the Veteran did not endorse flare-ups, hence there were no associated objective findings. The clinician reported that interference with standing, disturbance of locomotion, and interference with sitting contributed to this disability (as endorsed above, difficulty sitting, standing, walking, or driving for prolonged periods. There was no evidence of muscle atrophy, ankylosis, instability (subluxation), ligament tear, or a prescription for any ambulation device. The were no findings of chronic exertional compartment syndrome of the right lower extremity The Veteran did not have a right meniscus condition. The clinician reported current residuals of the April 1988 right patellar stabilization of chronic pain and reduced range of motion. The Veteran did not report that she used an assistive device for locomotion. As to functional loss on the Veteran's ability to perform any occupational task, the clinician opined that the Veteran is limited in bending, stooping, pushing, pulling, carrying, lifting "moderate" objects, standing, sitting, walking, climbing stairs, running, squatting and standing, walking, or driving for prolonged periods. The Veteran believes that her service-connected right knee patella fracture (residuals) warrants a rating in excess of 10 percent. She is certainly competent to report discernable symptoms such as pain. The Board has considered this lay evidence carefully. 38 C.F.R. § 3.159(a)(2). The evidence of record does not disclose that either the Veteran possesses the medical expertise to render an opinion as to the clinical severity of any complex medical matter, to include right knee patella fracture (residuals). 38 C.F.R. § 3.159(a)(1). The Board finds that the competent clinical evidence of record is entitled to considerable probative weight. The Veteran's disability is rated at 10 percent under Diagnostic Code 5260. As already noted, Diagnostic Code 5260 provides for a 10 percent rating for flexion limited to 45 degrees; a 20 percent rating for flexion limited to 30 degrees; and a 30 percent rating for flexion limited to 15 degrees. At worst, the competent medical evidence of record discloses that right knee flexion was limited to 45 degrees during the December 2013 VA examination, with the onset of pain at 30 degrees. While this could be consistent with the higher 20 percent rating, the Veteran manifested 70 degrees of flexion shortly thereafter in January 2014. All subsequent flexion measurements were well in excess of 45 degrees, even when accounting for pain or flare-ups. Therefore, the evidence is persuasively against finding that a higher 20 percent rating for limitation of flexion is warranted. In making this determination, the Board has considered functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Here, the Veteran is already assigned the minimum compensable rating. Turning to Diagnostic Code 5261, a 10 percent rating is assigned for extension limited to 10 degrees and a 20 percent rating is assigned for extension limited to 20 degrees. At worst the medical evidence shows right knee extension is limited to zero degrees. No examination or treatment records found evidence of ankylosis (or any suggestion of such during flare-ups, Chavis, No. 18-2928 (April 16, 2021)); subluxation or instability; genu recurvatum; tibia or fibula impairment; or dislocated or symptomatic post-removal semilunar cartilage. Consequently, separate compensable ratings under Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5262, or 5263 are not for application. Turning to the issue of arthritis, the Veteran has endorsed that she has right knee arthritis; however, the competent medical evidence of record fails to disclose x-ray confirmation of such a diagnosis. Thus, a compensable rating under Diagnostic Codes 5010 or 5003 is not possible. For the foregoing reasons, a rating higher than 10 percent is not warranted. Shamil Patel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.