Citation Nr: 22019698 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 16-57 860 DATE: April 2, 2022 ORDER Entitlement to an initial rating in excess of 10 percent for left knee chondromalacia with osteoarthritis is denied. Entitlement to an initial rating in excess of 10 percent for right knee chondromalacia with osteoarthritis is denied. Entitlement to a separate 10 percent rating, but no higher, for left knee instability is granted. Entitlement to a separate 10 percent rating, but no higher, for right knee instability is granted. REMANDED Entitlement to service connection for a ruptured left quadriceps tendon is remanded. FINDINGS OF FACT 1. The Veteran's left and right knee chondromalacia with osteoarthritis is not manifested by limitation of motion to 30 degrees flexion or less or to 10 degrees of extension or greater. 2. The Veteran's service-connected left and right knee disabilities are manifested by slight lateral instability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left knee chondromalacia with osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260 and 5261. 2. The criteria for an initial rating in excess of 10 percent for right knee chondromalacia with osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260 and 5261. 3. The criteria for a separate rating of 10 percent, but no higher, for left knee instability have been met. 38 U.S.C. § § 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 4. The criteria for a separate rating of 10 percent, but no higher, for right knee instability have been met. 38 U.S.C. § § 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1976 to November 1983. The Veteran appealed a March 2014 rating decision by the Agency of Original Jurisdiction (AOJ). In July 2021, the Board of Veterans' Appeals (Board) remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives regarding the bilateral knee claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran was previously represented by the Military Order of the Purple Heart (MOPH). In August 2021, the Board notified the Veteran that MOPH is no longer a recognized Veteran's Service Organization (VSO) and that the Veteran must submit a new VA Form 21-22 to appoint a representative. However, to date the Veteran has not submitted a new form regarding representation. Therefore, the Veteran is unrepresented in this case. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. For disabilities evaluated based on limitation of motion, the Department of Veterans Affairs (VA) is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Board notes that 38 C.F.R. § 4.59, entitled "Painful motion," states, in pertinent part, "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). When painful motion is present the minimum compensable rating for the joint should be assigned. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). The Veteran's bilateral knee condition is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5260, based on a finding of painful motion under 38 C.F.R. § 4.59. However, multiple codes are potentially applicable to the knee, and the law permits simultaneous rating under various codes, so long as prohibited pyramiding is avoided. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14. Knee disabilities are rated under Codes 5256 through 5263 of 38 C.F.R. § 4.71a. Code 5256 addresses ankylosis of the knee. Code 5257 addresses recurrent subluxation or lateral instability. Code 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of "locking," pain, and effusion into the joint. Code 5259 addresses symptomatic residuals related to removal of semilunar cartilage. As noted, Code 5260 addresses limitation of motion on flexion, while Code 5261 addresses limitation of motion on extension. Code 5262 addresses impairment of the tibia and fibula from malunion or nonunion. Code 5263 addresses genu recurvatum. 38 C.F.R. § 4.71a. The Board notes that during this appeal, VA promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See 85 Fed. Reg. 76,453-76,469 (November 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). For purposes of this decision, the new regulations impact the rating criteria concerning instability of the knee. This will be addressed below in the section regarding knee instability. A. Limitation of Motion Diagnostic Code 5260 provides ratings for limitation of flexion with the following ratings assigned: 0 percent for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and 30 percent for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Similarly, Diagnostic Code 5261 provides ratings for limitation of extension with the following ratings assigned: 10 percent for limitation of extension to 10 degrees, 20 percent for limitation of extension to 15 degrees, 30 percent for limitation of extension to 20 degrees, 40 percent for limitation of extension to 30 degrees, and 50 percent for limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal knee flexion is to 140 degrees, and normal knee extension is to 0 degrees. See 38 C.F.R. § 4.71, Plate II. An October 2013 VA examination report noted pain with sitting, standing, and walking, painful motion on flexion to 130 degrees with pain at 100 degrees, and normal extension in the bilateral legs. The Veteran denied flare-ups in his knee symptoms at that examination. The Veteran's July 2014 statement and notice of disagreement (NOD) noted that he is unable to bend, run, or walk, has loss of strength, and weakness. A September 2016 VA examination report noted pain, limited walking, standing, sitting, and bending, right knee flexion to 110 degrees, left knee flexion to 105 degrees, normal extension bilaterally, and buckling and popping of the knees while walking. The December 2021 VA examination report noted daily flare-ups. The examiner opined that the Veteran's bilateral knees would be most limited during flare-ups and on repeated use over time with flexion limited to 100 degrees and normal extension in such instances. The Veteran's service-connected bilateral knee disability is rated as 10 percent disabling under Diagnostic Code 5260 for limitation of flexion due to painful motion under 38 C.F.R. § 4.59. This recognizes that the degree of limitation of motion is not compensable, but the painful motion did cause functional impairment and therefore requires compensation. See generally Saunders v. Wilkie, 886 F. 3d (Fed. Cir. 2018). The measured range of motion remains noncompensable under both Diagnostic Code 5260 and Diagnostic Code 5261, and therefore no increased rating may be assigned under those diagnostic codes. Overall, the evidence does not demonstrate limitation of motion meeting the criteria for an increased rating by either competent lay or medical evidence, and hence an increased rating is not warranted. The Veteran does not provide specific details as to the extent of his range of motion (ROM) in which the Board is able to ascertain their proximity with respects to the relevant rating criteria. Even during flare-ups, the Veteran's ROM do not come more closely approximate limitation of flexion to 30 degrees or less or limitation of extension to 10 degrees or greater. Although it has been noted that the Veteran's knees impacts sitting, walking, and standing, such does not demonstrate greater limitation of motion as to warrant a higher rating for limitation of motion. The Veteran has also stated that the disabilities cause pain, loss of strength, and weakness. For disabilities of the joints in particular, the Schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. Therefore, the Veteran's functional loss is contemplated by his ratings under Diagnostic Code 5260. Even considering this evidence, the evidence does not demonstrate limitation of flexion to 30 degrees or less or limitation of extension to 10 degrees or greater to warrant a higher initial rating. The claims are therefore denied. B. Instability Diagnostic Code 5257 provides ratings for other knee impairments with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. 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 as in effect prior to February 7, 2021. Therefore, objective medical evidence cannot be categorically found more probative than lay evidence with respect to that diagnostic code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Effective February 7, 2021, the rating criteria under Diagnostic Code 5257 were amended. Diagnostic Code 5257 now pertains to recurrent subluxation or instability, and also patellar instability. See 85 Fed. Reg. 76,463 (November 30, 2020). Under Diagnostic Code 5257 for recurrent subluxation or instability, a 10 percent rating is assigned for a 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 requires 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 (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; and a 30 percent rating is assigned 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. Under Diagnostic Code 5257 for patellar instability, 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. The Board notes that in order to obtain a rating in excess of 10 percent for instability under the new regulations, the Veteran is required to be prescribed from a medical provider a brace or assistive device and have persistent or recurrent instability. However, the medical evidence during the evidentiary window does not suggest the Veteran is prescribed any assistive device regarding the knees and that he has persistent or recurrent instability. Therefore, it would not be advantageous to rate the Veteran under the new regulations, and the Board will instead rate him under the regulations in effect prior to February 7, 2021. The Veteran's July 2014 statement and NOD noted that his knees buckle and give way, causing him to fall or grab things for stability. The Veteran's April 2016 statement noted that his knees have been unstable for many years dating back to service and that he has fallen numerous times. The December 2021 examination report noted that both knees buckle daily. However, no instability, subluxation, or dislocation was found on objective testing at the October 2013, September 2016, or December 2021 VA examinations. Based on the above evidence, the Board finds that the Veteran is entitled to a separate disability rating of 10 percent throughout the entire period on appeal for slight bilateral knee instability. The Veteran's right and left knee instability is considered slight in severity because objective testing has been negative and, although the Veteran has reported prior falls due to the instability, there is no indication in the record that the instability has caused injuries or was otherwise moderate or severe in terms of the pain or the harm it caused on its own. As such, the right and left knee instability warranted ratings of 10 percent, and no higher, under Diagnostic Code 5257 as in effect prior to February 7, 2021. Thus, the Board finds that the criteria for separate disability ratings of 10 percent, but no higher, throughout the entire period on appeal for left knee instability and right knee instability are met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. C. Meniscal Condition The December 2021 examination report noted a right knee meniscal tear from 2020, with frequent episodes of joint pain and effusion. However, joint locking was not noted, as required under Diagnostic Code 5258. The Veteran's meniscus was not removed. As such Diagnostic Code 5259 does not apply. While the Veteran had a semilunar cartilage tear which resulted in joint pain and effusion, there is no indication that he experienced frequent locking. Medical evidence from the date of the meniscal tear does not note locking. The Veteran has not provided additional statement regarding his right knee meniscal tear or locking. As such, a separate rating under Diagnostic Code 5258 is not warranted. D. Other Conditions The evidentiary record does not demonstrate impairment of the tibia and fibula, genu recurvatum, or ankylosis of the left or right knee. The Veteran also has not provided details regarding an inability to move or that there is complete immobility of the knees as to contemplate ankylosis. As such, disability ratings under Diagnostic Codes 5256, 5262, and 5263 are not warranted. REASONS FOR REMAND Entitlement to service connection for a ruptured left quadriceps tendon is remanded. The July 2021 Board decision remanded the issue for new etiology opinions. The opinions were to address direct service connection and secondary causation and aggravation by the Veteran's bilateral knee conditions. The opinions were to also discuss specific pieces of evidence, including a January 2003 VA treatment note documenting the Veteran's reported history of knee pain for 15 to 20 years, the X-ray findings at the September 2016 VA examination, and the Veteran's contentions in his July 2014 NOD. However, the January 2022 opinions did not discuss the evidence as specified in the remand instructions and gave conclusory opinions without rationale other than general or vague citations to literature. Furthermore, the secondary opinions were based on the Veteran's chondromalacia only. A January 2022 rating decision amended the Veteran's service-connected bilateral knee conditions to include osteoarthritis. However, this additional diagnosis was not considered in formulating the etiology opinions. Overall, the Board finds remand is required for additional etiology opinions that address the above deficiencies pursuant to the July 2021 Board remand instructions. The matter is REMANDED for the following action: Obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's ruptured left quadriceps tendon. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran's ruptured left quadriceps tendon was CAUSED by his service-connected left knee condition? Is it at least as likely as not that the Veteran's ruptured left quadriceps tendon was AGGRAVATED by his service-connected left knee condition? Is it at least as likely as not that the Veteran's ruptured left quadriceps tendon was CAUSED by his service-connected right knee condition? Is it at least as likely as not that the Veteran's ruptured left quadriceps tendon was AGGRAVATED by his service-connected right knee condition? The reviewing clinician is directed to discuss the following: (1.) January 2003 VA treatment records noting complaints of "knee pain for 15 to 20 years" with the physician's assessment note: "1. Patellofemoral knee syndrome. 2. DJD knee due to #1." (emphasis added), (2.) September 2016 VA examination report noting that X-ray imaging of the bilateral knees revealed "degenerative changes are more pronounced at the patellofemoral compartments bilaterally, left greater than right. Bilaterally, there is patella alta with heterotopic ossification adjacent to the patella, suggesting prior injury. Clinical correlation is suggested," and (3.) the Veteran's contentions within his July 2014 NOD, including that "The chronic service-connected chondromalacia patella made my left knee highly susceptible to quadriceps injury, including tendon rupture, because of the weakened and compromised state of the knee for many years. In 2003, I was treated at VA for severe knee pain and two weeks late[r], had emergency surgery for muscle detachment. If I did not have chronic chondromalacia patella, I would not have had quadriceps tendon rupture." In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If there is any medical reason to accept or reject the proposition that the Veteran's assertion that his service-connected knee disabilities caused his left quadriceps tendon rupture, this should be noted. Stated another way, do the Veteran's reports align with how the documented left quadriceps tendon rupture is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). T. J. ANTHONY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, Associate 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.