Citation Nr: 22017228 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-03 848 DATE: March 24, 2022 ORDER Entitlement to an initial evaluation higher than 10 percent for left knee osteoarthritis and patellofemoral pain syndrome is denied. REMANDED Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected left knee osteoarthritis and patellofemoral pain syndrome, is remanded. FINDING OF FACT At worst, left knee osteoarthritis and patellofemoral pain syndrome caused limitation of flexion to 120 degrees. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation higher than 10 percent for left knee osteoarthritis and patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Army from May 1989 to May 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in April 2019. For the issue decided herein, there has been compliance with the prior remand directives. VA obtained outstanding treatment records and a current examination report. Thus, additional remand is not required for the Veteran's increased rating claim. While on remand, in a June 2020 rating decision, the RO granted a higher initial disability rating of 10 percent for the service-connected left knee osteoarthritis and patellofemoral pain syndrome. 1. Entitlement to an initial evaluation higher than 10 percent for left knee osteoarthritis and patellofemoral pain syndrome is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's left knee osteoarthritis and patellofemoral pain syndrome is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260, for limitation of flexion of the leg that is not otherwise compensable under the rating schedule. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg; however, DC 5260 was unchanged. 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 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. February 2012 VA treatment notes document the Veteran's reported left knee symptoms of pain, swelling, noise, buckling, locking, and "stairs," presumably meaning difficulty with stairs. He described the pain as sharp or aching, and rated the level at an 8 or 9 out of 10. The pain as worse with movement. On examination the Veteran had full range of motion of the knees, no effusions, and the joint was stable. The orthopedic physician diagnosed osteoarthritis and the Veteran was prescribed a knee brace. A March 2012 record notes the Veteran had full range of motion of the knees, no effusions, and the joint was stable. The Veteran was fitted for bilateral knee sleeves. The Veteran underwent a VA examination in November 2012. That examiner noted diagnoses of history of left knee injury and retropatellar pain syndrome. At that examination, the Veteran described pain in the knee with bending down and standing up. He did not have pain with active range of motion. Knee pain was exacerbated by pushing on the clutch while driving a truck. The examiner reported the Veteran denied flares of left knee symptoms. The Veteran had full range of motion of the left knee without evidence of painful motion. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. There was no tenderness to palpation, and the Veteran had normal strength. There was no joint instability, or history of recurrent patellar subluxation or dislocation. That examiner reported that the Veteran did not have any meniscal conditions or surgical procedures. The examiner also reported that the Veteran did not use a knee brace. X-rays of the knees showed minimal narrowing of the medial compartments. The examination report did not comply with the Correia requirements. In February 2013, the Veteran wrote that he had painful and limited motion of the left knee that interfered with the functional use of his leg. April 2015 VA treatment notes document that the Veteran reported knee pain but had full range of motion. A May 2015 VA treatment note reports the Veteran's range of motion of the left knee was from -5 to 120. He had no effusions, and the joint was stable. There was a positive patellofemoral grind and joint line tenderness. An X-ray of the knees showed moderate medial narrowing and spurs. A May 2015 VA treatment note reports the same physical findings. At that time the Veteran endorsed symptoms of swelling, noise, buckling, and "stairs." The pain was sharp with a severity level up to 10 out of 10 and was worse in the morning. The Veteran was treated with a steroid injection in the knee. There is a 3-year gap in treatment, and when the Veteran presented to VA again in January 2018, he denied joint pain. The left knee pain was assessed as stable on over the counter pain medication. The Veteran then had a 2-year gap in treatment, and when he came back to VA in January 2020, he reported he was feeling good and denied joint pain. The knee pain was again assessed as stable on over the counter medication. The Veteran underwent another VA examination in February 2020. That examiner noted a diagnoses of left knee osteoarthritis and patellofemoral pain syndrome. The Veteran reported he continued to have knee pain all the time that was worse with prolonged driving requiring use of a clutch, and difficulty climbing stairs. The examiner noted the Veteran was physically active and employed. The Veteran reported infrequent flares of left knee pain that limited activities but did not cause a significant change in range of motion. Flares could last from hours to days and were treated with over the counter medication. Functionally, the Veteran described difficulty running, using stairs, and walking on uneven ground. On examination, range of motion of the left knee was normal and no pain was noted. There was no pain in passive motion. There was no evidence of pain in weight bearing and non weight-bearing, or localized tenderness or pain on palpation of the joint. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner reported the exam was being conducted during a flare up, and that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flares. There was no additional contributing factor of disability. Muscle strength testing was normal and there was no joint instability. The examiner found that the Veteran did not have a history of recurrent subluxation of recurrent effusions. The Veteran did not have any meniscus condition, and did not require use of an assistive device. The Veteran's knee condition did not impact his ability to perform occupational tasks. The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for left knee osteoarthritis and patellofemoral pain syndrome. To warrant an evaluation higher than 10 percent for limitation of flexion, the evidence must show that limitation of flexion more nearly approximates flexion limited to 30 degrees. At worst, left knee flexion was limited to 120 degrees as noted in the VA treatment records. At the most recent VA examination, the Veteran denied any significant additional loss of range of motion during flares of left knee symptoms, rather, he described functional impairment with certain activities. The 2020 VA examination report is adequate because it contained all findings necessary to rate the disability and complied with both Sharp and Correia. Overall, the weight of the evidence persuasively favors against a finding that left knee flexion approximates flexion limited to 30 degrees, even considering any additional degree of impairment during flares. The Board acknowledges the Veteran's lay reports of symptoms of left knee pain with bending down and standing up, and pain that impaired his ability to climb stairs, prolonged driving with use of a clutch, prolonged running, and walking on uneven surfaces. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. 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). DC 5256 is not applicable because the evidence does not show ankylosis or left knee limitation of motion so significant that it approximates ankylosis. The persuasive weight of the evidence also shows that DC 5257 is not for application. Prior to February 7, 2021, DC 5257 provided a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Effective February 7, 2021, the amended DC 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability. For recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for 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; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A maximum 30 percent rating is warranted for 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. For patellar instability, a 10 percent rating is warranted 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 warranted 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. A maximum 30 percent rating is warranted 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. Note (1) provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).] Although the Veteran was prescribed a left knee brace, there is no objective evidence of recurrent subluxation, lateral instability, or patellar instability. The Veteran's left knee was routinely assessed as stable, and the February 2020 VA examiner adequately found that the Veteran did not have a history of subluxation or instability. Although the Veteran subjectively reported buckling on 2 occasions, there is no objective evidence of instability on repeated examination. The criteria for a separate or higher evaluation under DC 5257 are not met. The persuasive weight of the evidence also shows that DC 5258 and 5259 are not for application. The Board acknowledges that at VA medical appointments the Veteran endorsed symptoms of swelling, noise, and locking. Nevertheless, the objective findings showed a stable left knee without effusions and no history of a semilunar cartilage condition. DC 5261 is also not applicable because the persuasive weight of the evidence shows that extension was not limited to 10 degrees. The Veteran is already in receipt of the minimum 10 percent evaluation for an actually painful joint. Even if extension is painful, it does not more nearly approximate extension limited to 10 degrees. The Veteran does not have tibia or fibular impairment, so DC 5262 is not applicable. 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 for left knee osteoarthritis and patellofemoral pain syndrome. 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). Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the initial rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). REASONS FOR REMAND 2. Entitlement to service connection for a lumbar spine disorder is remanded. This issue is remanded for an addendum opinion and private treatment records. Service treatment records show that in April 1991 the Veteran complained of lower back pain for 20 minutes after lifting something heavy. The assessment was muscle strain. On an April 1992 report of medical history, the Veteran specifically denied recurrent back pain. An April 1992 report of medical examination showed normal clinical findings for the spine. A February 2011 VA orthotics consultation report documents the Veteran had a history of low back pain that began years prior without specific trauma. He reported he had seen a private chiropractor for years. He described a recent episode of low back pain that began in December 2010. A November 2012 VA examiner opined that the claimed back condition was not due to the April 1991 back injury. The examiner explained that the Veteran's current condition was due to a history of herniated disc. The examiner noted that in-service x-rays were normal. In February 2014, the Veteran wrote that he had endured pain in his lower back for 20 years until the pain required surgical repair. He also wrote that favoring the left leg for 20 years contributed to the advancement of disc degeneration. VA obtained an addendum opinion in February 2020. That examiner also opined that the claimed back condition was not due to service. The examiner explained that the Veteran had a sudden onset of a back condition of disc herniation and lumbar fracture from an injury in 2010 that was not related to the back condition in service. The examiner explained that the back strain resolved without complications. The examiner also opined that the claimed back condition was not caused or aggravated by the left knee condition for the same reason. The VA opinions of record do not consider the Veteran's February 2014 lay statement of a 20-year history of chronic back pain, the February 2011 VA treatment records indicating that the Veteran had a long history of lower back pain prior to the December 2010 exacerbation, or the theory that the Veteran's favoring of his left leg aggravated the disc degeneration. Thus, remand for an addendum opinion is required. On remand, VA should undertake reasonable efforts to obtain outstanding private treatment records. At the February 2011 VA appointment, the Veteran reported a history of being treated for his back condition by private providers for many years prior to 2010. Currently, there are no private treatment records in the file. Although the Veteran has previously been given the opportunity to identify outstanding private records, as the matter is remanded for a new opinion, he should be given another opportunity. The aforementioned matter is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records from 1992 to 2011 regarding the claimed chronic back disability. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the claimed low back disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether a low back disorder had onset in, or is otherwise related to, active service. (b.) The examiner must provide an opinion regarding whether a low back disorder was caused by the service-connected left knee disability. (c.) The examiner must provide an opinion regarding whether a low back disorder was aggravated (that is, worsened in severity) by the service-connected left knee disability. (d.) The examiner must specifically address the following: 1) the February 2014 lay statement of chronic back symptoms that existed for the past 20 years; 2) the theory that favoring the left leg caused or aggravated disc degeneration of the spine; 3) the February 2011 VA treatment notes reporting that the Veteran had a history of low back pain that began years prior without specific trauma, that he had seen a private chiropractor for years, and that he had a recent episode of low back pain that began in December 2010. E. BLOWERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.