Citation Nr: 22018029 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-53 394 DATE: March 28, 2022 ORDER Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome, left knee is denied. Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome, right knee is denied. FINDINGS OF FACT 1. The Veteran's left knee patellofemoral pain syndrome does not manifest as compensable limitations of flexion or extension, recurrent subluxation, or lateral instability, dislocated or symptomatic post-removal semilunar cartilage, genu recurvatum, or malunion of tibia or fibula, and is not ankylosed. 2. The Veteran's right knee patellofemoral pain syndrome does not manifest as compensable limitations of flexion or extension, recurrent subluxation, or lateral instability, dislocated or symptomatic post-removal semilunar cartilage, genu recurvatum, or malunion of tibia or fibula, and is not ankylosed. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for left knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5260 (2021). 2. The criteria for an evaluation in excess of 10 percent for right knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5260 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from July 2000 to January 2005. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran, his spouse, and his daughter testified at a Board hearing. The transcript of that proceeding has been associated with the Veteran's claims file. The Board most recently remanded these issues to the RO for additional development in August 2021. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). While the Veterans of Foreign Wars (VFW) did submit an informal hearing presentation, in January 2022, the same month they submitted a statement asserting their desire to revoke their representation for the Veteran. As the statement expressed good cause, the motion for withdrawal is granted. VFW copied the Board on correspondence sent to the Veteran, informing him of their withdrawal and his ability to work with another service organization. The Veteran has not since submitted a valid power of attorney (POA) appointing a new representative. 38 C.F.R. § 20.1305. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If there is a question as to which evaluation to apply to the Veteran's disability, 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. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. 1. Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome, left knee 2. Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome, right knee The Veteran's right and left knee disabilities are currently each assigned a 10 percent rating under Diagnostic Code 5260 for limited flexion. 38 C.F.R. § 4.71a. Diagnostic Code 5260 concerns limitation of leg flexion. A noncompensable evaluation is assigned where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. Finally, a 30 percent rating applies where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5261, pertaining to limitation of leg extension, is also of relevance here. Under that Code section, a noncompensable evaluation is assigned where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. Finally, a 50 percent evaluation is warranted where extension is limited to 45 degrees. Id. Under DC 5258, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. As mentioned above, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Diagnostic Codes 5258, 5259, 5261 and 5260 were not changed under the amended criteria. Prior to the regulatory change, Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, or a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Id. Under the amended criteria, DC 5257 (knee, other impairment of) indicates that recurrent subluxation or instability should be rated as follows: 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 warrants a 30 percent rating. 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; (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 warrants a 20 percent rating. 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 warrants a 10 percent rating. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): 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). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Precedent opinions of the VA's General Counsel have held that dual ratings may be given for a knee disorder, with one rating for instability (Diagnostic Code 5257) and one rating for arthritis with limitation of motion (Diagnostic Codes 5003 and 5010). VAOPGCPREC 9-98 (63 Fed. Reg. 56,704 (1998)) and 23-97 (62 Fed. Reg. 63,604 (1997)). Another such opinion held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (69 Fed. Reg. 59988 (2004)). The Veteran submitted a claim for entitlement to service connection for bilateral knee disabilities in June 2016. The Veteran underwent a VA knee examination in June 2016. He denied flare-ups. Range of motion testing demonstrated flexion from 0 to 140 degrees and extension from 140 to 0 degrees bilaterally without pain. There was no evidence of crepitus. The Veteran was able to perform repetitive-use testing without any additional loss of function or range of motion. Muscle strength testing was 5 out of 5 and there was no atrophy. There was no ankylosis upon observation. The examiner indicated that the Veteran did not have a history of recurrent subluxation, lateral instability, and recurrent effusion. Joint stability testing yielded normal results. There was no tibial or fibular impairment, meniscal condition, surgical history, or other pertinent conditions. The Veteran did not use any assistive devices. He was observed walking with a normal gait and stride and had normal deep knee squat and recovery. The examiner determined that the Veteran's bilateral knee disabilities would not cause any functional impairment. A June 2016 rating decision awarded noncompensable ratings for right and left knee patellofemoral pain syndrome. In November 2016, the Veteran submitted a claim for increased compensation for his knee disabilities. The Veteran attended another VA knee examination in December 2016. He stated that he constantly used right and left knee braces. The Veteran reported difficulty with dressing and showering as well as chopping wood and doing chores. He reported needing to stretch his knees every 45 minutes. He reported flare-ups 3 to 7 times weekly lasting for multiple hours. Range of motion testing for the right knee demonstrated flexion from 0 to 90 degrees and extension from 90 to 0 degrees. The left knee demonstrated flexion from 0 to 65 degrees and extension from 65 to 0 degrees. Pain was noted during the examination. There was no evidence of crepitus. The Veteran was able to perform repetitive-use testing without any additional loss of function or range of motion. The examiner was unable to provide an opinion without resorting to mere speculation on whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time or during a flare-up. Additional factors contributing to the right and left knee disabilities included disturbance of locomotion, and interference with sitting and standing. Muscle strength testing was 5 out of 5 and there was no atrophy. There was no ankylosis upon observation. The examiner indicated that the Veteran did not have a history of recurrent subluxation, lateral instability, and recurrent effusion. Joint stability testing yielded normal results. There was no tibial or fibular impairment, meniscal condition, surgical history, or other pertinent conditions. Arthritis was not found during diagnostic testing. In April 2017, the Veteran submitted a claim for increased compensation for his knee disabilities. In August 2017, the Veteran reported that his knee disabilities had progressed in severity. Upon VA examination in August 2017, the Veteran reported increased pain with walking and prolonged sitting and standing. He reported regular use of knee braces and a cane. Range of motion testing demonstrated flexion from 0 to 105 degrees and extension from 105 to 0 degrees bilaterally with pain. There was no evidence of crepitus. The Veteran was able to perform repetitive-use testing without any additional loss of function or range of motion. The Veteran was examined immediately after repetitive use over time and during a flare-up and pain, weakness, fatigability or incoordination did not significantly limit functional ability. Muscle strength testing was 5 out of 5 and there was no atrophy. There was no ankylosis upon observation. The examiner indicated that the Veteran did not have a history of recurrent subluxation, lateral instability, and recurrent effusion. Joint stability testing yielded normal results. There was no tibial or fibular impairment, meniscal condition, surgical history, or other pertinent conditions. Arthritis was not found during diagnostic testing. The examiner determined that the Veteran's bilateral knee disabilities would not cause any functional impairment for sedentary work so long as he was able to change positions as necessary. The examiner noted that the Veteran demonstrated pain out of proportion to his movements and exhibited exaggerated pain during the examination but appeared to not experience pain when exiting the examination room. In November 2017 correspondence, the Veteran reported that his knees had progressed in severity and his wife had to assist him with dressing and grooming. During November 2017 VA treatment, the Veteran reported knee pain, locking, instability, and swelling. During December 2017 VA treatment, the Veteran reported that he enjoyed hiking, walking with his family, traveling, horseback riding and taking care of their two horses and their land. The Veteran underwent left knee arthroscopic surgery in January 2018. See VA treatment records. The Veteran attended another VA examination in April 2018. He reported left knee popping and hyperextension. He denied flare-ups but stated that he was unable to perform prolonged standing or sitting. Range of motion testing for the right knee demonstrated flexion from 0 to 110 degrees and extension from 110 to 0 degrees without pain. The left knee demonstrated flexion from 0 to 90 degrees and extension from 90 to 0 degrees with pain, but pain and limited motion did not contribute to functional loss. The Veteran was able to perform repetitive-use testing without any additional loss of function or motion. The examiner determined that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The Veteran had full muscle strength in the right knee and 4/5 muscle strength in the left knee. The examiner indicated that the Veteran did not have a history of recurrent subluxation, lateral instability, and recurrent effusion. Joint stability testing yielded normal results in the right knee and the left knee was not tested because of post-operation pain. The examiner explained that the left knee was expected to improve in the following months but that during the post-operation period the Veteran would be unable to perform physical work type activities. October 2018 VA diagnostic testing revealed that the Veteran's right and left knee were normal. During December 2019 VA treatment, the Veteran's active range of motion was 0 to 130 degrees bilaterally. The Veteran attended a Board hearing in February 2020. He testified that his knee disabilities caused so much pain he relied on his daughter and spouse to help him dress. He stated that he experienced buckling and hyperextension. His spouse testified that the Veteran fell a month prior because of his knees and she had to assist him in dressing and bathing. During May 2021 VA treatment, the Veteran reported chopping wood, gardening, and walking for exercise. The Veteran attended a VA examination in October 2021. He reported flare-ups three days per week. He stated that he occasionally used a knee brace for his right knee, and also occasionally used a cane. Range of motion testing for the right knee demonstrated flexion to 135 degrees, with pain beginning at 130 degrees, and extension to 0 degrees. The left knee demonstrated flexion to 135 degrees and extension 0 degrees without any limitation of motion that was specifically attributable to pain, weakness, fatigability, or incoordination. Active and passive motion were the same bilaterally. The Veteran was able to perform repetitive-use testing without any additional loss of function or range of motion. During repeated use over time or during a flare-up the examiner estimated that the Veteran's flexion would be limited to 130 degrees bilaterally. There were no additional factors that contributed to the Veteran's knee disabilities. The Veteran had full muscle strength in both knees. The examiner indicated that the Veteran did not have a history of recurrent subluxation, lateral instability, and recurrent effusion. Joint stability testing yielded normal results in the right knee and left knee. Although he reported periodically using a brace and cane, the examiner determined that the Veteran did not require any prescribed stability devices. The Veteran explained that his bilateral knee pain interfered with his ability to stand for prolonged periods, sit for prolonged periods, squat, kneel, and drive for prolonged periods. The Board has reviewed the Veteran's lay statements and all relevant medical evidence, with particular attention to the VA examination reports, and finds that the Veteran's right and left knee disabilities are not entitled to higher disability ratings. For the Veteran to be entitled to the next available rating of 20 percent for limited flexion under Diagnostic Code 5260, the evidence must show flexion limited to 30 degrees or less. In this case, however, viewing the evidence in the light most favorable to the Veteran, the evidence shows flexion in the left knee is limited to no less than 65 degrees and no less than 90 degrees in the right knee. In addition, a separate rating under Diagnostic Code 5261, for limited extension has not been shown by the evidence. The Veteran's left and right knee have consistently been normal at 0 degrees. Thus, a separate rating for either knee based on limited of extension is not warranted. The provisions of 38 C.F.R. § 4.59 recognize actually painful, unstable, or malaligned joints as entitled to at least the minimum compensable rating for a joint. That has already been assigned, however, and nothing in the record indicates the Veteran otherwise has or would have limitation of flexion to the extent necessary for a rating in excess of the ratings assigned, to include during flare-ups of pain, in active or passive motion, weight or non-weight bearing. In this regard, the Board finds the October 2021 VA examination to be highly probative. The examiner estimated that during a flare-up or following repeated use, the Veteran's right and left knee would only be limited to 130 degrees. While the Veteran experiences pain, the Board finds that the 10 percent evaluation assigned for the knees adequately contemplates any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his knees. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Therefore, a higher evaluation from for the knee disabilities based on functional loss is not warranted. See DeLuca, supra. The Board has considered the Veteran's general contentions that an increased rating is warranted, however, the Board finds these contentions are not supported by the probative evidence of record. While the Veteran has reported difficulty performing grooming and dressing, the VA treatment records indicate that he maintains a large property with horses, and enjoys horseback riding and hiking. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). He has also reported enjoying gardening, an activity that usually requires significant kneeling. The ability to chop wood is inconsistent with the need for assistance in bathing and grooming. The benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102. That evidence must be both competent and credible. Here, there is no such balance of evidence. The Board has also considered other diagnostic codes to determine if a higher evaluation is warranted. However, evaluation of the relevant evidence of record contains no evidence of ankylosis, malunion or nonunion of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. The Board considered the Veteran's report of knee "buckling" and "popping." The Board interprets this report as an inability of the knee to occasionally support weight, but the medical evidence does not support instability of the joint. The Board finds the numerous VA examinations and joint stability testing to be more probative on this matter. Imaging studies have repeatedly shown no ligament abnormalities. Consequently, a separate compensable rating under Diagnostic Code 5257 is not for application. The Veteran underwent arthroscopic surgery in January 2018 on the left knee which showed a fissure or tear. However, on follow up in October 2018, an imaging study showed no fracture, joint effusion, or degenerative changes. As there was no removal of cartilage, locking or effusion, a compensable rating under the criteria for meniscal abnormalities is not warranted. (continued next page) The evidence is persuasively against the Veteran's claim for entitlement to higher disability ratings for his right and left knee patellofemoral pain syndrome, and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Accordingly, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.