Citation Nr: 1609194	
Decision Date: 03/08/16    Archive Date: 03/15/16

DOCKET NO. 09-20 919	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease (DJD).

2. Entitlement to an initial rating in excess of 10 percent for left knee limitation of flexion.

3. Entitlement to an initial rating in excess of 10 percent for right knee DJD.

4. Entitlement to an initial rating in excess of 10 percent for right knee limitation of flexion.

5. Entitlement to service connection for a sinus disability, to include sinusitis and rhinitis.


REPRESENTATION

Veteran represented by:	The American Legion
ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1977 to February 1982, from February 1991 to March 1991, and from December 2004 to December 2005.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

By way of background, the Veteran initially appealed the ratings assigned for his bilateral knee arthritis under Diagnostic Code 5010. In its July 2013 remand the Board assigned separate ratings of 10 percent for the left and right knee under Diagnostic Code 5010, and then remanded the bilateral knee issue for an additional examination. Following that examination, the RO awarded additional 10 percent ratings for limitation of flexion of each knee. While this has resulted in concurrent 10 percent ratings for DJD and limitation of motion in each knee, which is not warranted under the rating schedule, the Board finds that it is not appropriate for it to revisit or revise the assigned ratings and Diagnostic Codes at this time. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (stating that the ratings under Diagnostic Code 5003 are to be used in the absence of limitation of motion).

The award of these additional ratings does not constitute a full grant of the benefits sought on appeal, and therefore the increased rating claims remain in controversy and on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Further, as all potential ratings for a knee disability must be addressed on appeal, the Board finds that these newly assigned ratings for limitation of flexion are now on appeal as part of the Veteran's general claim for increased ratings for his bilateral knee disability. As such, the title page has been updated to reflect claims for increased ratings in excess of 10 percent for left and right knee DJD and limitation of flexion. 

As noted above, the Board remanded the issues on appeal for additional development in July 2013. Efforts having been made to obtain the identified records and the requested examinations having been provided, the Board finds the directives have been substantially complied with and the matter is again before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). As part of that remand the Board also remanded the issues of service connection for bilateral hearing loss and tinnitus. Service connection for those benefits was granted while on remand in a January 2014 rating decision. As that constituted a full grant of the benefits sought on appeal, those issues are no longer on appeal and are not before the Board.

When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, the Veteran has not indicated that he is unemployable due to his service-connected knee disabilities. As such, the issue of entitlement to TDIU has not been raised by the record.

When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice, 22 Vet. App. 447. In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). 

However, the Veteran does not have a single disability rated at 100 percent with an additional disability rated at 60 percent or more, even when considering TDIU and temporary total ratings. 38 U.S.C.A. § 1114(s); Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010); 38 C.F.R. §§ 3.350(i), 4.29, 4.30.
There is no lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C.A. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time.

The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.

The issues of entitlement to service connection for cervical degenerative disc disease (DDD), thoracolumbar DDD, upper extremity radiculopathy, bilateral first metatarsal DJD, and hypophosphatemia due to exposure to contaminated drinking water at Camp Lejeune have been raised by the record in a January 2016 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015).


FINDINGS OF FACT

1. For the entire period on appeal, the Veteran's left knee DJD has been manifested by pain and x-ray evidence of involvement of two or more major joints; but not by occasional incapacitating exacerbations.

2. For the entire period on appeal, the Veteran's left knee limitation of flexion has been manifested by pain, stiffness, soreness, limitations on mobility, weakness, flare-ups every one to two months resulting in a 50 percent limitation of normal function, and flexion to 140 degrees; but not by limitation of flexion to 30 degrees or less, extension limited to 5 degrees or less, dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint, ankylosis, nonunion or malunion of the tibia or fibula, or recurrent subluxation or lateral instability.

3. For the entire period on appeal, the Veteran's right knee DJD has been manifested by pain and x-ray evidence of involvement of two or more major joints; but not by occasional incapacitating exacerbations.

4. For the entire period on appeal, the Veteran's right knee limitation of flexion has been manifested by pain, stiffness, soreness, weakness, limitations on mobility, flare-ups every one to two months resulting in a 50 percent limitation of normal function, and flexion to 140 degrees; but not by limitation of flexion to 30 degrees or less, extension limited to 5 degrees or less, dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint, ankylosis, nonunion or malunion of the tibia or fibula, or recurrent subluxation or lateral instability.

5. The Veteran's pre-existing sinus disability was permanently aggravated beyond the natural progression of the disability by his active duty service.


CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for left knee DJD have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2015).

2. The criteria for a rating in excess of 10 percent for left knee limitation of flexion have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5260 (2015).

3. The criteria for a rating in excess of 10 percent for right knee DJD have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2015).

4. The criteria for a rating in excess of 10 percent for right knee limitation of flexion have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5260 (2015).

5. The criteria for service connection for a sinus disability, to include sinusitis and rhinitis, have been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

In light of the fully favorable decision as to the issue of service connection for a sinus disability, no further discussion of compliance with VA's duty to notify and assist as to that issue is necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). The duty to notify and assist as to the other claims is discussed below.

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In this case, the appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's VA treatment records with the claims file. 

VA requested all outstanding service treatment records from the Records Management Center in July 2013. 38 C.F.R. § 3.159(c)(2). In August 2013 correspondence the Records Management Center indicated that no service treatment records could be located, and therefore that further attempts to obtain the records would be futile. Id. In September 2013 and October 2013 correspondence, VA informed the Veteran of the records they attempted to obtain, the efforts made to obtain them, further actions VA was going to take on the claim, and that the Veteran was ultimately responsible for submitting the records. 38 C.F.R. § 3.159(e). Thus, VA made adequate attempts to obtain the records, and provided sufficient notice of their inability to do so to the Veteran. 38 C.F.R. § 3.159(c)(2), (e). 

All other VA and service treatment records have been associated with the claims file. All identified or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA knee examinations in April 2008 and August 2013. The examinations were adequate 



because the examiners considered and addressed the Veteran's contentions and conducted a thorough medical examination of the Veteran. 

The Board notes that the April 2008 examiner stated that the claims file was not reviewed. However, a failure to review the claims file does not automatically render an examination inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Instead, an examiner need only be apprised of a sufficient number of relevant facts to provide an informed opinion. Id. Further, with respect to increased rating claims, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, an examination for an increased rating claim is adequate as long as the examiner is apprised of a sufficient number of relevant facts to provide an informed opinion concerning the level of disability at the time of the examination. Id.; Nieves-Rodriguez, 22 Vet. App. 295.

In this case, the examiner noted the Veteran's subjective recitation of his bilateral knee symptomatology and the history of the disability. The examiner then conducted an objective examination of the Veteran's knees and noted the findings in the examination report. Between the Veteran account of his symptomatology and the examiners own findings, the Board finds that the examiner was apprised of sufficient relevant facts to render an informed opinion concerning the severity of the bilateral knee disability at the time of the examination. Thus, the examination is adequate for rating purposes despite the failure to provide the examiner with the claims file. 

Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's claim for increased ratings for his left and right knee disabilities. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied.


II. Increased Schedular Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id.

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2013). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

Concerning disabilities of the knee, separate evaluations under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension), may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990. Further, a claimant who has both arthritis and instability of a knee may be granted separate evaluations under Diagnostic Codes 5003 and 5257, respectively, without violating the rule against pyramiding in 38 C.F.R. § 4.14. However, any such separate rating must be based on additional disabling symptomatology. In other words, separate evaluations are appropriate so long as there is evidence of limitation of motion that meets the requirements of the zero percent level under either Diagnostic Code 5260 or 5261. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (July 1, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (August 14, 1998).

The Veteran contends that he is entitled to increased ratings for his left and right knee. As the Veteran is in receipt of 10 percent ratings for both DJD and limitation of flexion for each knee, for the purposes of clarity the Board will address the criteria applicable to DJD first, then the criteria governing limitation of flexion, and then all other potentially applicable Diagnostic Codes. 

The Veteran's DJD is rated under Diagnostic Code 5010, covering traumatic arthritis. Under Diagnostic Code 5010, traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under Diagnostic Code 5003, a 10 percent rating is warranted for x-ray evidence of involvement of two or more major joints. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A 20 percent rating is warranted for x-ray evidence of involvement of two or more major joints, with occasional incapacitating exacerbations. Id. The knee is considered to be a major joint. 38 C.F.R. § 4.45.

Based on the evidence of record, the Board finds that the preponderance of the evidence is against a finding that an increased rating in excess of 10 percent for the Veteran's left or right knee DJD is warranted. The medical evidence clearly shows that the Veteran has bilateral knee DJD confirmed by x-ray. However, the medical evidence of record does not show, and the Veteran has not alleged, that his DJD in either knee is manifested by incapacitating exacerbations of any kind. This includes the April 2008 and August 2013 VA examinations, both of which were silent for any notations concerning incapacitating exacerbations of left or right knee DJD.

While the Veteran has reported that he experiences flare-ups that cause additional functional limitation, such as in the April 2008 VA examination, he has not stated that these flare-ups result in incapacitation. As there is no lay or medical evidence of record indicating that the Veteran's left or right knee DJD is manifested by incapacitating exacerbations, the preponderance of the evidence is against a finding that a rating in excess of 10 percent for the left or right knee DJD is warranted in this case. 38 C.F.R. § 4.71a, Diagnostic Code 5010.

Turning to limitation of flexion, the Veteran's left and right knee limitation of motion is rated under Diagnostic Code 5260, governing limitation of flexion. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. Diagnostic Code 5260 provides for the assignment of a noncompensable rating when flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. Id. A rating of 20 percent is appropriate when leg flexion is limited to 30 degrees, and a rating of 30 percent is warranted when flexion is limited to 15 degrees. Id.

Based on the medical evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's left and right knee limitation of flexion more nearly approximates the level of severity contemplated by the current 10 percent rating for each knee. The Veteran has reported pain, stiffness, soreness, limitation of motion, limitations on mobility due to pain, and flare-ups which result in an additional fifty percent reduction in function, all of which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, these statements are entitled to probative weight.

The Veteran was provided with VA examinations in April 2008 and August 2013. The April 2008 examiner noted that the Veteran complained of pain, stiffness, and flare-ups causing an additional 50 percent loss of function every one to two months. Locking, effusion, weakness, dislocation or subluxation, instability and giving way were not endorsed. On examination, the examiner found the Veteran to have flexion to 140 degrees, with no additional functional impairment after repetitive testing. The examiner noted no evidence of crepitation, grinding, instability, or patellar or meniscal abnormality. No ankylosis was present.

The August 2013 examiner noted that the Veteran complained of stiffness, soreness, limitations on motion and mobility, and weakness. The Veteran denied catching, locking, instability, giving way and loose motion. On examination, the Veteran had flexion to 140 degrees, with no additional functional impairment after repetitive testing. The examiner noted pain on palpation bilaterally as well as mild crepitation. Anterior, posterior and medial-lateral stability were all noted to be normal after testing, and a history of patellar subluxation or dislocation was not noted. No history of meniscal conditions or surgeries as noted, and loss of use of the lower extremities was not found to be present. There is no evidence that the examiners were not competent or credible, and as the reports were based on accurate facts and an objective examination, the Board finds they are entitled to significant probative weight concerning the severity of the Veteran's left and right knee limitation of flexion. Nieves-Rodriguez, 22 Vet. App. 295.

VA and private treatment records reflect on-going treatment for left and right knee disabilities, including complaints of continued knee pain. However, these records are silent for any further range of motion testing. 

Based on the objective medical evidence, the Board finds that the Veteran's left and right knee limitation of flexion does not more nearly approximates the level of severity contemplated by a 20 percent rating. While the Veteran has reported limitation of motion and other symptoms, the Board finds that these statements are outweighed by the objective range of motion testing conducted by the April 2008 and August 2013 VA examiners, which clearly showed that at no point during the period on appeal has the Veteran's limitation of flexion of either knee approached the level of severity contemplated by a 20 percent rating, even when considering additional limitations due to pain, fatigue, and other factors. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Indeed, the objective range of motion testing of record shows that the Veteran has a full range of motion of both knees, which well exceeds the limitation of flexion to 30 degrees contemplated by a 20 percent rating.

In evaluating the Veteran's current level of disability functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The medical evidence shows that the Veteran has, at different times, complained of pain, limitations on motion and mobility, flare-ups, stiffness, soreness, and weakness, all of which the Veteran is competent to report. Jandreau, 492 F.3d 1372. Neither of the VA examiners noted there to be further functional loss due to pain, fatigue or other symptoms after repetitive testing, but did note the Veteran's subjective reports of his symptomatology, specifically the reported flare-ups causing a fifty percent reduction in knee function.

While there is no objective evidence of further limitation of function, the Veteran's statements concerning additional functional loss, specifically during flare-ups, are already contemplated by his assigned ratings. The Veteran is in receipted of a 10 percent rating for bilateral knee DJD based on pain present in the affected joints. 38 C.F.R. § 4.71a, Diagnostic Code 5010, 5003. Further, the current compensable rating assigned for left and right knee limitation of motion contemplates the reports of a fifty percent reduction in function during flare-ups, as a fifty percent reduction of the degree flexion of both knees measured during the VA examinations would roughly approximate the level of limitation contemplated by a 10 percent rating. Thus, the current 10 percent rating contemplates those intermittent periods of reduced function during flare-ups. As such, the Board finds that the Veteran's statements concerning further limitation are already fully contemplated by his assigned 10 percent rating for DJD and limitation of flexion of the left and right knee. 38 C.F.R. §§ 4.40, 4.45, 4.59.

No additional higher or alternative ratings under different Diagnostic Codes for the left or right knee disabilities can be applied in this case. For the purposes of Diagnostic Code 5256, ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing SAUNDERS ENCYCLOPEDIA AND DICTIONARY OF MEDICINE, NURSING, AND ALLIED HEALTH 68 (4th ed. 1987)). As the Veteran is able to move both knees, they are clearly not ankylosed. All range of motion testing of record shows that the Veteran has full extension of the left and right knee. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Therefore a higher or separate and compensable rating based on limitation of extension of the left or right knee is not warranted. Both examiners noted that the Veteran's knees were stable, and the Veteran himself denied any history of instability or giving way during both examinations. 38 C.F.R. § 4.71a, Diagnostic Code 5257. There is no medical or lay evidence of dislocated semilunar cartilage or nonunion or malunion of the tibia and fibula. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5262.

All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an initial rating in excess of 10 percent for the Veteran's service-connected left or right knee DJD or limitation of flexion. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

III. Extraschedular Rating

Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See id. at 115. In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id.

Neither the first nor the second Thun element is satisfied here. The Veteran's left and right knee disabilities are manifested by limitation of motion and mobility, flare-ups causing a 50 percent reduction in function, stiffness, soreness, weakness, and pain. These signs and symptoms, and their resulting impairment, are specifically contemplated by the rating schedule as part of the rating schedule for musculoskeletal disabilities. See 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5260. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the rating 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. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss.

Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. While some of the Veteran's symptoms are not directly contemplated by the rating criteria, such as limitation of mobility, they are inherently contemplated by the criteria. The Veteran's limitations on standing, walking and running have been attributed to his bilateral knee pain resulting from his DJD. This pain is specifically contemplated by the rating criteria governing traumatic arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010, 5003. In short, there is nothing exceptional or unusual about the Veteran's left or right knee disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, referral for extraschedular consideration is not warranted.

With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular, the Veteran does not contend, and the evidence of record does not suggest, that his left or right knee disability has caused marked absence from work or has resulted in any hospitalizations. Therefore, the left or right knee disabilities do not result in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted.

Finally, a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, the Veteran is service connected for bilateral knee DJD and limitation of flexion, a bilateral hearing loss disability, and tinnitus. The Veteran has not alleged that his currently service-connected disabilities combine to result in additional disability or symptomatology that is not already contemplated by the rating criteria for each individual disability.

Further, there is no medical evidence indicating that the Veteran's bilateral knee DJD or limitation of flexion combines or interacts either with one another or his other service-connected disabilities in such a way as to result in further disabilities, functional impairment, or additional symptomatology not accounted for by the rating criteria applicable to each disability individually. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.

IV. Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999). 

However, in all cases, a veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). In other words, when no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).

The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it pre-existed service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012). The presumption of sound condition does not apply where an entrance examination was not performed contemporaneous with entry to a period of service, because without such an examination there is not basis on which to determine whether the veteran was sound upon entry. Smith v. Shinseki, 24 Vet. App. 40 (2010); see also Gilbert, 26 Vet. App. at 52.

If the presumption of soundness applies, the burden then shifts to the Government to rebut the presumption by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. The Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235.

If a veteran is presumed sound at service entrance and VA is unable to rebut the presumption, a disease or injury that manifested in service is deemed incurred in service. Gilbert, 26 Vet. App. at 53. However, even if an injury or disease is deemed to have been incurred in service pursuant to application of the presumption of soundness (or by a finding that the injury or disease was actually incurred in service), a veteran must nonetheless establish that a current disability is related to the in-service injury or disease. See id.

The medical evidence of record shows that the Veteran has been diagnosed with chronic sinusitis and allergic rhinitis, most recently by the August 2013 VA examiner. As such, a current disability has been shown and the first element of service connection has been met. Concerning the second element, the Veteran has stated the he experienced sinus symptoms during his period of active duty from December 2004 to December 2005, which he is competent to report. The Veteran also endorsed sinusitis on his entrance report of medical history upon entering active duty in December 2004. 

However, the evidence of record presents the question of whether the sinus disability pre-existed service. As noted, the Veteran's report of medical history upon entering his December 2004 to December 2005 period of active duty service notes that he suffered from sinusitis. However, this statement, by itself, does not constitute a disease or disability being noted at entry to service. See 38 C.F.R. § 3.304(b)(1), (3). No entrance examination is of record for the December 2004 to December 2005 period of active duty service. 

Absent evidence to the contrary, it is presumed that an entrance examination is provided prior to all periods of active duty service. See Quirin, 22 Vet. App. 390, n.5 (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997)). There is no evidence that the Veteran was not examined upon entry, and indeed such a presumption is buoyed by the fact that the Veteran completed a full report of medical history upon entrance to active duty service in December 2004, which is done in conjunction with an entrance examination. As such, the Board will presume that an examination occurred and will presume the Veteran to have been found to be sound. Id. Thus, in this case the presumption of soundness attaches to the Veteran's active duty service from December 2004 to December 2005. As a result, the burden shifts to the Government to rebut the presumption of soundness by showing that the sinus disability clearly and unmistakably pre-existed service, and was not aggravated by active duty service. Wagner, 370 F.3d at 1096.

The record on appeal is not sufficient to rebut the presumption of soundness. Regarding the preexisting prong of the presumption of soundness, the evidence includes service treatment records from February 1997 and March 2001, among others, confirming the preexisting condition. Further, the August 2013 VA examiner, in an October 2013 addendum, stated that the Veteran's sinus disability clearly and unmistakably pre-existed the December 2004 to December 2005 period of active duty, based on the medical evidence showing diagnoses of and treatment for sinusitis. Thus, the preexisting prong necessary to rebut the presumption of soundness is satisfied. See Horn, 25 Vet. App. at 235.

However, the record does not include clear and unmistakable evidence sufficient to rebut the aggravation prong of the presumption of soundness. See id.  
On this question, the Veteran underwent a VA examination in August 2013, and addendum to which was provided in October 2013. The VA examiner in the October 2013 addendum concluded that the Veteran's sinus disability not only had its onset prior to the December 2004 to December 2005 prior of active service, but also that it was permanently aggravated by that service beyond the natural progress of the disease. The examiner specifically attributed this permanent worsening to the Veteran's constant exposure to sand and dust while stationed in Kuwait, resulting in post-service notations of sequelae beyond the natural progression of the disability as well as required surgery in December 2006. The Veteran's service in Kuwait during his December 2004 to December 2005 period of service is corroborated by his personnel records. There is no evidence that the examiner was not competent and credible, and as the opinion is based on accurate facts it is entitled to significant probative weight. Nieves-Rodriguez, 22 Vet. App. 295.

Apart from the October 2013 VA addendum opinion, the record does not contain any probative evidence addressing the issue of aggravation of a pre-existing condition. In light of the foregoing, the Board is unable to rebut the presumption of soundness, and as such the claimed sinus disability is determined to have been incurred in service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).


Turning to the third element, as noted above the Veteran was provided with a VA examination in August 2013. In that report, the examiner stated that it was less likely than not that the Veteran's sinus disability was incurred in or caused by his active duty service. However, in her rationale the examiner stated that the claimed sinus disability had actually pre-existed service and been subsequently permanently worsened by that service, which would appear to support a positive opinion. Thus, the opinion was seemingly internally contradictory, and as a result was inadequate for rating purposes. Further, the opinion raised the issue of the presumption of soundness by citing the aggravation of a pre-existing injury. As such, an addendum was obtained from the same examiner in October 2013. 

In the October 2013 addendum, the examiner stated that the Veteran's sinus disability was permanently aggravated by his December 2004 to December 2005 active duty service, during which period he was stationed in Kuwait and exposed to constant dust and sand. The examiner indicated that this exposure resulted in a permanent worsening of the sinus disability, with post-service records reflecting a December 2006 surgery and increased sequelae beyond the natural progression of the disability. As noted above, the Board has found that this opinion is entitled to significant probative weight. Nieves-Rodriguez, 22 Vet. App. 295. No other VA or private opinions are of record, and the private and VA treatment records associated with the claims file, while reflecting ongoing treatment for a sinus disability, are silent for any positive or negative opinions concerning the presence of a nexus. 

Based on the lay and medical evidence of record, the Board finds that a nexus between the Veteran's current disability and his active December 2004 to December 2005 active duty service has been established, as the October 2013 opinion indicated that his current disability was permanently worsened beyond the natural progress by that period of service. As all three elements have been met, service connection for a sinus disability, to include sinusitis and rhinitis, is warranted. 38 U.S.C.A. § 1111; Gilbert, 26 Vet. App. 53; 38 C.F.R. § 3.303.


ORDER

Entitlement to an initial rating in excess of 10 percent for left knee DJD is denied.

Entitlement to an initial rating in excess of 10 percent for left knee limitation of flexion is denied.

Entitlement to an initial rating in excess of 10 percent for right knee DJD is denied.

Entitlement to an initial rating in excess of 10 percent for right knee limitation of flexion is denied.

Entitlement to service connection for a sinus disability, to include sinusitis and rhinitis, is granted; subject to the laws and regulations governing the award of monetary benefits.




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs