Citation Nr: A24055674 Decision Date: 09/12/24 Archive Date: 09/12/24 DOCKET NO. 220330-231820 DATE: September 12, 2024 ORDER Entitlement to an evaluation in excess of 10 percent for left knee patellofemoral pain syndrome is denied. Entitlement to an evaluation in excess of 10 percent for right knee patellofemoral pain syndrome is denied. FINDINGS OF FACT 1. The Veteran's service-connected left knee disability is not productive of actual or functional flexion limited to 30 degrees; actual or functional extension limited to 10 degrees; lateral instability or recurrent subluxation; patellar instability; ankylosis; impairment of the tibia and fibula; dislocated semilunar cartilage; symptomatic removal of semilunar cartilage; medial tibial stress syndrome or shin splints; or genu recurvatum. 2. The Veteran's service-connected right knee disability is not productive of actual or functional flexion limited to 30 degrees; actual or functional extension limited to 10 degrees; lateral instability or recurrent subluxation; patellar instability; ankylosis; impairment of the tibia and fibula; dislocated semilunar cartilage; symptomatic removal of semilunar cartilage; medial tibial stress syndrome or shin splints; or genu recurvatum. 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; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5260. 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; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1975 to August 1980 and from August 1981 to August 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2021 rating decision. In December 2021, the Veteran submitted a VA Form 20-0996 and requested a higher-level review (HLR) of an October 2021 rating decision. In December 2021, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior October 2021 rating decision. The Veteran filed a VA Form 10182 in February 2022, and he elected the direct review docket. The Veteran later submitted an additional VA Form 10182 in March 2022 in which he again elected direct review. Therefore, the Board may only consider the evidence of record at the time of the October 2021 rating decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board could not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider in the decision below, he may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. §?3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. Law and Analysis The Veteran and his representative have not raised any issues with the pre-decisional duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). 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 of 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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. During the pendency of this appeal, VA issued revised schedular criteria for rating musculoskeletal disabilities, including some of the diagnostic codes for rating knee disabilities under 38 C.F.R. § 4.71a, which became effective February 7, 2021. However, consideration under the revised schedular criteria should not be undertaken before such criteria became effective. The effective date rule contained in 38 U.S.C. § 5110(g) prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law. That is, for any date prior to February 7, 2021, neither the RO nor the Board could apply the revised rating schedule. 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 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. As such, VA must consider the claims pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). In this case, the Veteran's service-connected left and right knee patellofemoral pain syndrome have been assigned separate 10 percent evaluations, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5260, a 10 percent disability evaluation is assigned when flexion is limited to 45 degrees, and a 20 percent disability evaluation is warranted when flexion is limited to 30 degrees. A 30 percent disability evaluation is assigned when flexion is limited to 15 degrees, which is the maximum evaluation available under Diagnostic Code 5260. Under Diagnostic Code 5261, a 10 percent disability evaluation is contemplated for extension limited to 10 degrees. When there is limitation of extension to 15 degrees, a 20 percent disability evaluation is warranted. A 30 percent rating will be assigned for extension limited to 20 degrees, and a 40 percent rating is contemplated for limitation of extension to 30 degrees. A 50 percent disability evaluation is warranted for extension limited to 45 degrees. The regulations provide that the normal range of motion of the knee is zero degrees on extension to 140 degrees on flexion. 38 C.F.R. § 4.71, Plate II. Under the regulations in effect prior to February 7, 2021, Diagnostic Code 5010 stated that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under the regulations in effect from February 7, 2021, Diagnostic Code 5003 now only applies to degenerative arthritis, other than posttraumatic. Otherwise, Diagnostic Code 5003 remains the same and under the revised regulations. Diagnostic Code 5010 now states that traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, General Counsel also held that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In addition, General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered. In addition, the VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to increased evaluations for his service-connected left and right knee patellofemoral pain syndrome. Initially, the Board finds that the Veteran is not entitled to increased evaluations under Diagnostic Code 5260 for limitation of flexion of the left or right knee. In this regard, the record does not show that the Veteran's left or right knee flexion was limited to 30 degrees or less to warrant a higher evaluation. In fact, during a September 2021 VA examination, the Veteran demonstrated left knee flexion to 125 degrees with no evidence of pain and right knee flexion to 120 degrees. As such, increased evaluations are not warranted under Diagnostic Code 5260 for the left or right knee. The Board also finds that the Veteran is not entitled to higher or separate ratings under Diagnostic Code 5261 for limitation of extension for his left or right knee. The record does not show that left knee extension was limited to 10 degrees or more to warrant separate 10 percent evaluations or higher. In fact, during the September 2021 VA examination, the Veteran demonstrated left and right knee extension to 0 degrees. As such, separate or increased evaluations under Diagnostic Code 5261 is not warranted for the left or right knee. In an effort to afford the Veteran the highest possible rating, the Board has also considered whether any other rating criteria are applicable. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning higher, or separate, ratings under other diagnostic codes. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Nevertheless, the Board finds that the Veteran is not entitled to separate or higher evaluations for recurrent subluxation or lateral instability under the version of Diagnostic Code 5257 in effect prior to February 7, 2021, for the left or right knee. The Board also finds that the Veteran is not entitled to separate or higher evaluations for recurrent subluxation or lateral instability, or patellar instability, under revised Diagnostic Code 5257 in effect since February 7, 2021. In fact, the September 2021 VA examiner found no evidence of recurrent subluxation, knee instability, or patellar instability. Thus, separate or higher evaluations under Diagnostic Code 5257 are not warranted for the left or right knee. In reaching this determination, the Board again notes that that the rating criteria under Diagnostic Code 5257 were recently amended; however, the revisions do not impact this case, as the Veteran does not meet the threshold of having lateral or patellar instability or subluxation. Thus, the criteria used to evaluate such impairment do not materially affect the outcome of this appeal. The Board has also considered whether a separate or higher evaluation is warranted under any other diagnostic code. However, as the evidence of record does not demonstrate that the Veteran has ankylosis, impairment of the tibia and fibula, MTSS or shin splints, or genu recurvatum, he is not entitled to a separate or higher evaluation under Diagnostic Codes 5256 (ankylosis), 5258 and 5259 (dislocated semilunar cartilage and removal of semilunar cartilage, symptomatic), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum). There is simply no evidence of such manifestations. Indeed, based on the aforementioned range of motion findings, the record shows that the Veteran's left and right knees are not fixated or immobile. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). Moreover, the September 2021 VA examiner specifically reported that there was no ankylosis of the left or right knee. The September 2021 VA examiner also found that the Veteran did not have a meniscus (semilunar cartilage) condition in the left or right knee, and it was noted that he did not have recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, or any other tibial and/or fibular impairments. Therefore, separate or higher evaluations are not warranted under Diagnostic Codes 5256, 5258, 5259, 5262, and 5263. In addition, the Board notes that the Veteran has been assigned separate 10 percent evaluations for his left and right knee disabilities which contemplate painful motion. There is no x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Thus, separate or increased evaluations are not warranted under Diagnostic Codes 5003 and 5010. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, separate or increased evaluations for the Veteran's service-connected left and right knee patellofemoral pain syndrome are not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned evaluations, and no higher. In this regard, the Board observes that the Veteran complained of pain and decreased range of motion throughout the appeal period. However, the effect of the pain in the Veteran's left and right knees and his limitation of motion are already contemplated in the assigned evaluations. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant increased evaluations beyond those already assigned. The September 2021 VA examiner noted that the Veteran had flexion to 125 degrees in his left knee and to 120 degrees in his right knee with pain on flexion and extension. He was also able to perform repetitive use testing with at least three repetitions and had no additional loss of function or range of motion in his right knee. He also noted that the Veteran had no flare-ups of right knee pain. The examiner did estimate that he would have approximately 5 degrees loss of motion in flexion of his left knee due to pain and lack of endurance after repetitive use and during flare-ups; however, he still retained flexion to 120 degrees. Thus, even taking into account the Veteran's reports, repetitive use, and flare-ups, the evidence does not show that he more nearly approximates the criteria for a higher evaluation for his service-connected left and right knee patellofemoral pain syndrome. Indeed, he has still maintained flexion and extension greater than required by the rating criteria for an increased evaluation. Accordingly, the Board concludes that increased or separate evaluations are not warranted for the Veteran's service-connected left and right knee patellofemoral pain syndrome under DeLuca. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (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). J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.