Citation Nr: 22017286 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-57 285 DATE: March 24, 2022 ORDER Entitlement to an increased rating in excess of 10 percent for residuals, patellofemoral syndrome with osteoarthritis, right knee is denied. Entitlement to an increased rating in excess of 10 percent for residuals, patellofemoral syndrome with osteoarthritis, left knee is denied. FINDINGS OF FACT 1. The Veteran's right knee patellofemoral syndrome with osteoarthritis is manifest by painful flexion limited to greater than 60 degrees. 2. The Veteran's left right knee patellofemoral syndrome with osteoarthritis is manifest by painful flexion limited to greater than 60 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee patellofemoral syndrome with osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5010-5260. 2. The criteria for a rating in excess of 10 percent for left knee patellofemoral syndrome with osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5010-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These appeals arise from a January 2015 rating decision from Department of Veteran's Affairs (VA) Regional Office (RO) denying a compensable rating for patellofemoral syndrome with osteoarthritis of the left and right knees. These matters were previously before the Board of Veterans' Appeals (Board) in March 2020. The Board remanded for further development. The Board finds substantial compliance with the remand directives for the Veterans left and right knees. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand gives the Veteran a right to compliance with the terms of the remand). Therefore, the Board addresses the meris of the case. The Board notes changes the Diagnostic Codes listed in 38 C.F.R. § 4.71a were implemented on February 7, 2021. In this case, there is no evidence submitted after February 7, 2021. As such, only the pre-revision Diagnostic Code is used here. However, should the Veteran submit additional evidence on remand, both rating criteria should be considered the more favorable assigned based on Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should apply unless Congress provided otherwise or permitted the Secretary). When there is a change in regulation the new regulation can only be applied from its effective date forward unless the regulation states otherwise. Id. Increased Rating For musculoskeletal disabilities (such as the left leg fracture residuals addressed below), in determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including environment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Diagnostic Code 5010 identifies that arthritis due to trauma that is substantiated by x-ray findings should be rated under degenerative arthritis 5003. Similarly Diagnostic Code 5024 for tenosynovitis identifies it should be rated on limitation of motion of the affected part as degenerative arthritis, Diagnostic Code 5003. Degenerative Arthritis 5003 identifies that arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Here, the hyphenated diagnostic code indicates that the Veteran's knee disabilities are rated, by analogy, under the criteria for limitation of flexion (Diagnostic Code 5260). Limitation of flexion of the knee is governed by Diagnostic Code 5260. This provides for a non-compensable rating if the limitation of flexion is to 60 degrees or greater. A 10 percent rating is warranted for flexion limited to 45 degrees. Entitlement to an increased rating in excess of 10 percent for residuals, patellofemoral syndrome with osteoarthritis for left and right knees The Veteran contends his bilateral knee conditions are each entitled to a rating in excess of 10 percent based on the limitation of motion and pain. See June 2015 Notice of Disagreement. The Veteran supplied additional medical documentation with his NOD and shortly thereafter in August 2015. Each of the Veteran's knees is currently rated by analogy under Diagnostic Code 5260 based on limitation of flexion. Turning to the evidence of record, the Veteran supplied private treatment records identifying mild to moderate osteoarthritis based in x-ray and MRI imaging with limited range of motion from 0 to 125 degrees for the right and left knees. See January 2014 Private Treatment Record. This record also identified pain that is worsened by standing, walking, weightbearing, and activity. The private examiner noted the Veteran is unable to run due to knee pain and very sharp bilateral posterior knee pain during deep squats. The private examiners also identified a possible meniscal tear of the left knee but did not confirm this diagnosis. The Veteran was afforded a VA examinations in January 2015 and August 2020. The Board notes that the January 2015 examination is inadequate for at least the reasons discussed in the March 2020 remand. A review of the August 2020 examination shows range of motion (ROM) of 0 to 140 degrees for both knees. The examiner noted pain on flexion but not on extension. The examiner found no objective evidence of crepitus; pain on weight bearing; or localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner noted that the Veteran was able to perform repetitive-use testing with at least three repetitions. The Examiner found no additional loss of function or range of motion for either knee. The examiner noted the Veteran was not being examined immediately after repetitive use over time. The examiner noted that the examination results are medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Repetitive use over time range of motion is found to be 0 to 135 degrees of flexion and extension for both knees and the examiner noted that pain causes the additional functional loss. The examination was not conducted during a flare-up. The examiner noted that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-up. The examiner noted that pain, weakness, fatigability, and incoordination do not significantly limit functional ability during flare-ups. The examiner estimated range of motion during flare-ups to be 0-140 degrees of flexion and extension for both knees. The examiner found muscle strength testing to be normal, 5/5 for both knees with no muscle atrophy. Joint stability testing was normal results, showing no joint instability. The examiner found no evidence of meniscal injury or conditions. The examiner noted no history of recurrent subluxation or instability for either knee. There was no recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment noted. The examiner did not note any surgical history. The examiner noted no additional contributing factors to the disability, or any other pertinent physical findings, complications, conditions, signs, symptoms or scars, including no adhesion, ankylosis, fail joints, fracture non-unions, weakened movement due to muscle injury or peripheral nerve injury, swelling, recurrent effusion, deformity, interference with standing. The examiner noted no use of assistive devices. The examiner did not find functional impairment of either knee such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. The examiner identified that the Veteran's condition functionally causes difficulty with running and high impact activities and prolonged sitting. While the examiner did not indicate that the Veteran's condition interferes with sitting in Section III, initial range of motion and functional limitation, it is understood by the Board that the Veteran is capable of the range of motion to sit. However, after an extended period of time, his symptoms of his knees interfere with remaining in the position. The August 2020 examiner identified that he reviewed the October 2014 MRI of record. The August 2020 examination conducted a full examination including stability testing and found no evidence to symptoms to support a meniscal injury or condition. Therefore, the examiner did not diagnose a meniscal injury or condition. The Board notes that the Veteran's left and right knee symptoms are the same on both sides. This further supports a lack of an additional injury to the left knee over the right. The Board finds the August 2020 medical opinion of record constitutes probative evidence weighing against an increased rating for the Veteran's bilateral knee conditions. The opinion represents the conclusion of a medical professional with sufficient expertise, is based on the Veteran's medical history, and is support by a clear explanation sufficient for the Board to make an informed decision. Further, the Board notes that the findings of the private physician and the VA examiner, while not exactly the same, provide similar results for painful range of motion. Further, the August 2020 examiner addressed the Veteran's lay statements and all pertinent evidence of record. As such, there is no conflict between the findings. The private treatment record shows a slightly more restricted range of flexion while meeting the same rating criteria under Diagnostic Code 5260. Based on the above evidence of record, the Board finds that the Veteran's bilateral knee patellofemoral syndrome with osteoarthritis is characterized by painful flexion limited to greater than 60 degrees. This warrants a 10 percent disabling rating. Likewise, a separate, or higher, rating is not warranted for limitation of extension, under Diagnostic Code 5261, or instability, under Diagnostic Code 5257. Here, again, the Board notes that the objective medical evidence of record ostensibly has noted that the Veteran's extension to be normal (zero degrees) throughout the claims period, and that extensive stability testing has revealed no instability or subluxation in either knee. As such, a separate, or higher rating, under either Diagnostic Code would not be warranted under the current facts of the claim. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Here, however, a higher or separate rating are not warranted under any other potentially applicable Diagnostic Codes. There is no lay or objective evidence of ankylosis (Diagnostic Code 5256); or frequent episodes of "locking," pain and joint effusion (Diagnostic Code 5258); or impairment of tibia and fibula (Diagnostic Code 5262); or genu recurvatum (Diagnostic Code 5263). As such, considering under these Diagnostic Codes would be inappropriate, and not warranted. Based on the above, the Board concludes that the evidence persuasively favors against an increased rating in excess of 10 percent disabling for right or left knee patellofemoral syndrome with osteoarthritis. The evidence is not in approximate balance and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Therefore, the Veteran's claims must be denied. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.