Citation Nr: 1333269 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-18 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected ischemic heart disease. 2. Entitlement to an increased rating for a right knee disability, manifested by painful motion, currently rated as 30 percent disabling. 3. Entitlement to an increased rating for a left knee disability, manifested by painful motion, currently rated as 20 percent disabling 4. Entitlement to an increased rating for right knee instability, rated as 20 percent disabling. 5. Entitlement to an increased rating for left knee instability, rated as 30 percent disabling. 6. Entitlement to a compensable rating for hemorrhoids. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to September 1975. This matter initially came before the Board of Veterans' Appeals (Board) from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In February 2012 the Veteran was awarded separate evaluations for instability of the left and right knees. This represents ratings for knee disabilities that were already on appeal. As such, the issues are as stated on the cover page. Initially, ratings were assigned based on "other knee impairment." Subsequent to the initial ratings being assigned, it has been determined by the Court of Appeals for Veterans Claims (Court) and the VA General Counsel that separate ratings can be assigned for painful motion and for instability. In view of these determinations, the ratings have been assigned as set out on the title page. It is noted that the initial 30 percent and 20 percent ratings are protected from reduction. FINDINGS OF FACT 1. Right knee symptomatology includes pain, weakness, and limited motion, but does not include ankylosis or limitation of extension to 30 degrees, or impairment of the tibia and fibula with nonunion or loose motion requiring a brace. 2. Left knee symptomatology includes pain, weakness and limited motion, but does not include ankylosis or limitation of extension to 20 degrees, or limitation of flexion to 15 degrees, or impairment of the tibia and fibula with malunion and moderate knee or ankle disability. 3. Right knee instability is characterized by buckling and falls, and the Veteran has reported an altered gait with use of a cane and chair lift, such that instability is best characterized as severe. 4. Left knee instability is characterized by buckling and falls, and the Veteran has reported an altered gait with use of a cane and chair lift, such that instability is best characterized as severe. 5. Symptoms of the Veteran's hemorrhoids are mild or moderate and do not more nearly approximate large or thrombotic, irreducible, with excessive redundant tissue evidencing frequent recurrences, or persistent bleeding, anemia, or fissures. 6. Recent medical opinion is to the effect that the Veteran's hypertension more likely than not is related to his military service. The examiner reportedly reviewed the claims folder in making this determination. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for right knee disability, manifested by painful motion, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.951(b), 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5259, 5260, 5261 (2012). 2. The criteria for a rating in excess of 20 percent for left knee disability, manifested by painful motion, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.321, 3.951(b), 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5259, 5260, 5261. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for a rating of 30 percent, but no higher, for right knee instability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 4. There criteria for a rating in excess 30 percent for left knee instability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 5. The criteria for a compensable rating for hemorrhoids have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7336. 6. Resolving reasonable doubt in favor of the Veteran, hypertension was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.102. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As service connection, an initial rating, and an initial effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. Examination reports and outpatient treatment records contain sufficiently specific clinical findings and informed discussions of the pertinent history and clinical features of the disabilities on appeal and are adequate for purposes of this appeal. The Veteran was afforded a Board hearing in October 2011. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, during the October 2011 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claims. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments in compliance with 38 C.F.R. § 3.103(c)(2). The Board is further satisfied that the RO has substantially complied with the January 2012 remand directives as the Veteran was afforded VA medical examinations for his knees and hemorrhoids in January 2012. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Increased Ratings Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Here, however, as shown below, the evidence warrants the uniform ratings that have been assigned. See also Hart v. Mansfield, 21 Vet. App. 505 (2007); see also 38 C.F.R. § 3.344. Knees 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 pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2012). 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. 38 C.F.R. § 4.45 (2012). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). Additionally, the Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Evaluations for limitation of knee extension are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2012). Diagnostic code 5257 refers to other impairments of the knee, recurrent subluxation or lateral instability. An evaluation of 20 percent is assigned when the impairment is moderate, and an evaluation of 30 percent is assigned when the impairment is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). The terms "moderate" and "severe" among other components of the rating criteria are not expressly defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Diagnostic Code 5258 provides for a 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2012). A 10 percent evaluation is assigned for removal of semilunar cartilage which is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2012). As a preliminary matter, the Board notes that these are the maximum ratings available under Diagnostic Codes 5258 or 5259. Thus, application of these codes in lieu of Diagnostic Codes based on arthritis and limitation of motion would not avail the appellant of a rating in excess of 20 percent for his left knee, or in excess of 30 percent for his right knee. The Board has also considered the assignment of a separate compensable rating, but finds that the symptoms set forth in these codes overlap with the symptoms considered above in assigning the current disability ratings, including pain, swelling, and a sensation of locking. VAOPGCPREC 9-98 (Aug.14, 1998). To accord separate ratings would result in prohibited pyramiding. 38 C.F.R. § 4.14 (2012). As noted, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. 38 C.F.R. § 4.14 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In that regard, separate evaluations may be assigned for non-overlapping manifestations of knee disability. See e.g. VAOPGCPREC 9-2004, published at 69 Fed. Reg. 59,990 (Oct. 6, 2004) (separate ratings for limitation of flexion and extension of the knee); VAOPGCPREC 9-98, published at 63 Fed. Reg. 56, 703-04 (Oct. 22, 1998) (separate ratings for instability and limitation of motion); VAOPGCPREC 23-97, published at 62 Fed. Reg. 63, 604 (Dec. 1, 1997) (to the same effect). The combined evaluation for the affected leg, however, cannot exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68 (2012). In October 1976 the RO awarded a 30 percent rating for postoperative patellectomy and meniscectomy of the right knee, and a 20 percent rating for postoperative patellectomy of the left knee, each evaluated under Diagnostic Code 5257-5259, effective January 1, 1977. In October 2005 the Veteran claimed he was entitled to increased ratings for his knee disabilities. The Board points out that under governing law, a disability which has been continuously rated at or above any evaluation of disability for 20 or more years for VA compensation purposes may not be reduced except upon a showing that such rating was based on fraud. See 38 U.S.C.A. § 110 (West 2002); 38 C.F.R. § 3.951(b) (2012). Here, the rating has been in effect since 1977 and there is no indication that it was procured by fraud. As such, the 30 percent rating for postoperative patellectomy and meniscectomy of the right knee, and 20 percent rating for postoperative patellectomy of the left knee is protected. The Veteran was afforded a November 2005 VA examination for his knees. The Veteran reported experiencing knee pain, aggravated by prolonged standing, walking and stair climbing. The Veteran walked with a cane. His kneecap was absent. Bilaterally, there was no swelling, localized tenderness or deformity. Range of motion testing revealed 0 degrees extension to 130 degrees flexion with discomfort between 120 to 130 degrees of flexion bilaterally. There was no medial/lateral instability of either knee. There was no anterior-posterior drawer sign of the left or right knee. McMurray and Lachman's tests were negative bilaterally. There was no pain, or loss of motion on repetitive maneuver bilaterally. November 2005 X-ray of the right and left knees showed that the Veteran was status-post absence of the patella with re-constitution of several small sesamoid bones in the quadriceps tendon. Joints showed degenerative findings that were mild relative to age. There was no acute fracture or dislocation. Diagnosis was of bilateral chondromalacia, status post patellectomy, and early degenerative arthritis, bilateral knees. The examiner indicated that the Veteran experienced limitation in prolonged standing, walking and climbing stairs due to pain bilaterally. There was no evidence of additional limitation either due to pain, further loss of motion, incoordination, weakness, flare-up or lack of endurance after repetitive motion. There was no evidence of adverse impact on activities of daily living, personal grooming, hygiene or transportation. The Veteran was retired. The examiner observed that his occupation would be restricted regarding prolonged standing and climbing stairs, kneeling or squatting. The Veteran did not require ambulatory aid for short distances. Private treatment records show that in 2007 the Veteran experienced a right knee flare-up and felt unstable with pain on weight bearing. There was instability of valgus stress at 30 degrees of flexion on the right, and on the left. Treatment notes from 2008 show knee pain was associated with popping, locking, giving way and buckling. It caused difficulty with walking, climbing and descending steps and twisting. Knee flexion and extension were full and pain free bilaterally. There was a negative McMurray's maneuver bilaterally, and tenderness along the medial joint line on the right. The Veteran experienced increasing pain and swelling of the right knee, such that he felt his symptoms were intolerable and discussed the possibility of a total knee replacement. He received an intraarticular injection. X-ray showed degenerative changes, greatest in the medial compartment. Impression was of traumatic arthritis, status-post patellectomy of the right knee. Impression was of osteoarthritis of the right knee status-post multiple operations including patellectomy and meniscectomies. Total knee replacement was recommended when the Veteran felt his symptoms were sufficiently severe. The Veteran has reported that his right knee gave out and caused him to fall severely 3 times, and that it tended to buckle forward when he stood on it. He also maintained that he experienced severe pain in both knees when he attempted to bend and extend his legs. He indicated that he could only walk one block with the assistance of a cane. The Veteran reported using a chairlift in his home because he could no longer navigate stairs. He described how although he wore knee braces, they did not really provide support, but rather caused swelling in his knees. VA treatment notes from 2009 include the Veteran's history of degenerative joint disease of the knees. January 2012 VA examination reviewed the Veteran's history to include fracturing his patellas bilaterally in 1970, and diagnosis of degenerative joint disease in 2005. The Veteran reported experiencing chronic pain in both knees that was worse on prolonged standing and walking, and occasionally giving out. The Veteran had been hospitalized for a year at Fort Meade, underwent a patellectomy and meniscectomy on the right knee, and subsequently underwent left knee patellectomy at the Naval Hospital. The Veteran's right knee flexion was limited to 100 degrees, and there was no objective evidence of painful motion. Extension was to 0 degrees. Left knee flexion was limited to 100 degrees, with objective evidence of painful motion at 90 degrees. Extension ended at 0 degrees. The Veteran was unable to perform repetitive use testing with three repetitions. The Veteran was not able to perform active range of motion due to weakness. Range of motion could be performed passively three times with no additional limitation in range of motion of the knee and lower leg. The Veteran experienced functional loss or impairment characterized by less movement than normal and weakened movement. There was no pain on palpation for joint line or soft tissue of either knee. Knee flexion bilaterally showed active movement against gravity, and there was active movement against some resistance with knee extension bilaterally. Anterior instability, posterior instability, and medial-lateral instability tests were normal bilaterally. There was no evidence of recurrent patellar subluxation or instability. There was no other tibia or fibula impairment. The Veteran had meniscectomies bilaterally in 1970, with no residuals. The Veteran had not had a total knee joint replacement. The Veteran had undergone patellectomies bilaterally, with no residuals. Although the Veteran had scars related to such surgeries, they were not painful or unstable, and the total area of all related scars was not greater than 39 square centimeters. The Veteran reported that he regularly used a cane to ambulate. There was no X-ray evidence of patellar subluxation. November 2005 X-rays were reviewed. January 2012 X-ray impression of the bilateral knees showed no evidence of acute fracture or subluxation. There was mild narrowing of the medial compartment of the knee joint. On the right, there was no significant lateral compartment narrowing, and on the left there was no significant medial compartment narrowing. Bilaterally, there was no significant bony remodeling. There were very small medial tibial osteophytes present. There was no bone erosion. The patella was not visualized consistent with surgical history. There were multiple small soft tissue calcifications anteriorly in the region of the quadriceps tendon and muscle, likely due to the prior surgical procedures. The Veteran is competent to report his symptoms and has presented credible testimony in this regard. The record reveals no evidence of left or right knee ankylosis. Extension is not limited to 30 degrees on either the left or right knee. Recent examination and treatment records show extension was to 0 degrees, which would warrant a noncompensable evaluation under Diagnostic Code 5261. 38 C.F.R. § 4.71a. Any limitation of flexion demonstrated would be noncompensable under Diagnostic Code 5260, as it was at most limited to 100 degrees bilaterally. Id. While there were very small medial tibial osteophytes present, there is no evidence of nonunion of the tibia or fibula with loose motion requiring a brace. Thus evaluations greater than 30 percent for the right knee and 20 percent for the left knee (which are protected evaluations) are not warranted under Diagnostic Codes 5256, 5261, or 5262. Id. Finally, the Board is aware of the Veteran's contentions regarding his knees buckling, giving out and causing him to fall (he indicated that his right knee caused three falls and tended to buckle forward). He uses a cane as well as a chairlift in his home. Recent examination showed that instability tests were normal bilaterally. The Board finds that the current 30 percent evaluation for severe instability of the left knee fully contemplates the Veteran's symptomatology. A 30 percent rating is the maximum schedular rating and fully contemplates the Veteran's reports of instability and buckling, such that no higher evaluation is warranted. This is the rating for severe instability. In addition, the Board finds that the Veteran's right knee should be awarded a 30 percent disability rating for instability. The Veteran's reports of symptomatology for instability have emphasized that his right knee has caused him to fall on at least three occasions, and he relies on a cane and chair lift, such that they are best characterizes as severe. Under the circumstances of this case, the preponderance of the evidence is against the appellant's claim for an increased evaluation for the right and left knee disabilities based on limited motion, and for the left knee instability, and the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Regarding the right knee instability, there is at least an equipoise of the evidence and all reasonable doubt has been resolved in favor of the Veteran, such that a 30 percent rating is granted. Id. Hemorrhoids The Veteran's hemorrhoids are rated as noncompensably disabling under 38 C.F.R. § 4.114, DC 7336. Under DC 7336, mild or moderate external or internal hemorrhoids are rated noncompensable (0 percent). A 10 percent rating is assigned if the hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is assigned for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. The Veteran's hemorrhoids have not more nearly approximated the criteria for a compensable rating at any time during the appeal period. On examination in November 2005 the Veteran was noted to have a pea-sized non-inflamed, non-thrombosed external hemorrhoid at the nine o'clock position. No internal hemorrhoid was noted. A diagnosis was of external hemorrhoid. An addendum noted that there was no evidence of fecal leakage, and rectal sphincter control was good. Thrombosed hemorrhoids were lanced several times in the past. The Veteran treated his hemorrhoids with Sitz baths as needed. There was no stricture of the rectum. Sphincter tone was tight and normal. There were no signs of anemia or fissures. There was no evidence of bleeding. The Veteran has reported that his hemorrhoids are thrombotic, large enough so as to be visible to the naked eye, and bled approximately 8 times a month. At a January 2012 VA examination for hemorrhoids, the examiner indicated that the Veteran was diagnosed in 1969 as having internal or external hemorrhoids. The Veteran had experienced hemorrhoids during service, with reoccurrence of external hemorrhoids monthly. The Veteran treated his hemorrhoids with fiber, stool softeners, and Analpram cream. The examiner indicated that the Veteran had mild external hemorrhoids that were non-thrombotic, reducible, and with no active bleeding. The hemorrhoids were small or moderate and external. A November 2011 blood test was reviewed, and showed that the Veteran was not anemic. The Veteran's activities of daily living were not affected, and he was retired for reasons other than his hemorrhoids. The above lay and medical evidence reflects that the symptoms of the Veteran's hemorrhoids have most nearly approximated mild or moderate. While the Veteran has reported that his hemorrhoids are large and thrombotic, neither he nor medical personnel have indicated that the hemorrhoids are irreducible or with excessive redundant tissue. As such, neither the lay or medical evidence indicated that there were other symptoms reflecting more than mild or moderate hemorrhoids. Thus, even assuming that the recurrences of the Veteran's hemorrhoids could be characterized as frequent, he did not have the majority of the symptoms required for a compensable rating during the appeal period. As the symptoms of the Veteran's hemorrhoids thus did not more nearly approximate the criteria for a 10 percent rating, the preponderance of the evidence is against an initial compensable rating and the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration The symptoms presented by the Veteran's knee disabilities, to include pain, instability, limited motion and functional limitations, and hemorrhoids to include bleeding, size, and reoccurrence, are fully contemplated by the rating schedule. Thus, the Board finds no evidence warranting entitlement to referral for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Further, although the Board has considered the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2011), the minimum requirement for a total disability rating has not been met. Here, the Veteran is retired, and the record does not suggest, and the Veteran does not contend that he is unable to maintain or sustain substantially gainful employment due to service-connected disabilities alone. 38 C.F.R. § 4.16 (2012). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Review of the record reveals that it has been contended that the Veteran's hypertension started in service when he had some elevated readings that were not treated. It is reported that treatment began shortly after service. In the alternative, it has been contended that the hypertension is related to his service connected ischemic heart disease. In view of this history, and in view of the findings of hypertension in recent medical records, an opinion was requested as part of the aforementioned remand development. After reviewing the claims file and examining the Veteran, the examiner concluded that there was no relationship between the Veteran's heart disease and hypertension. If anything, the hypertension might have contributed to the ischemic heart disease, not the other way around. On the other hand, after reviewing the claims folder and examining the Veteran, the examiner concluded that the Veteran's hypertension was at least as likely as not the result of his period of service. His history was noted and this was the conclusion reported in response to the question asked on remand. As such, resolving reasonable doubt in the appellant's favor, service connection for hypertension is granted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 30 percent for right knee disability, manifested by painful motion, is denied. Entitlement to a rating in excess of 20 percent for left knee disability, manifested by painful motion, is denied. Entitlement to a rating in excess of 30 percent for right knee instability is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 30 percent for left knee instability is denied. Entitlement to a compensable rating for hemorrhoids is denied. Entitlement to service connection for hypertension is granted. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs