Citation Nr: 1633374 Decision Date: 08/23/16 Archive Date: 08/31/16 DOCKET NO. 13-09 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a rating in excess of 10 percent for a right knee strain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Dustin Ware, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2001 to March 2003. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2015). The issue of entitlement to an annual clothing allowance for the year 2014 and 2015 has been raised by the record in a February 2013 VA Form 10-8678, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDING OF FACT The Veteran's right knee symptomatology includes limitation of motion, including hypermobility; chronic pain; subluxation and instability; genu recurvatum; and arthritis which are shown by the evidence of record to be attributable to his service-connected Ehlers-Danlos Syndrome not his service-connected right knee strain. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a right knee strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.14, 4.59, 4.71a Diagnostic Codes 5257, 5260, 5261, 5263 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015). 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 active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). For most of the appeal period, the Veteran right knee strain is assigned a 10 percent disability rating pursuant to Diagnostic Code 5260. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Diagnostic Code 5260 indicates that flexion of the leg limited to 60 degrees warrants a noncompensable disability rating; flexion of the leg limited to 45 degrees warrants a 10 percent disability rating; flexion of the leg limited to 30 degrees warrants a 20 percent disability; and flexion of the leg limited to 15 degrees warrants a 30 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. However, when the service-connected right knee strain was initially rated, limitation of motion was not shown at a compensable level. Accordingly, the Veteran's 10 percent rating was assigned under the provisions of 38 C.F.R. § 4.59, which provides that at least the minimum compensable rating for a particular joint is assigned based on functional loss due to painful motion. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2015). However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A Veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a Veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). In June 2015, the RO changed the diagnostic code for his service-connected right knee strain to Diagnostic Code 5257, relating to recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. This was done to avoid pyramiding as required by 38 C.F.R. § 4.14. Nevertheless, assignment of this diagnostic code violates the pyramiding regulation, as the evidence of record makes clear the Veteran's right knee subluxation is attributable to a disability other than his right knee strain. The RO further confused the issue in the Supplemental Statement of the Case subsequently issued in April 2016, which discussed the assigned 10 percent rating for right knee strain, was pursuant to painful motion. 38 C.F.R. § 4.59, 4.71a, Diagnostic Code 5260. Still, as will be discussed below a rating in excess of 10 percent for the Veteran's right knee strain is not warranted under either Diagnostic Code 5257 or Diagnostic 5260. The Veteran's claim for a rating in excess of 10 percent for a right knee strain was previously before the Board in December 2014 at which time it was remanded. In the same decision, the Board granted service connection for a right knee disability, other than right knee strain, diagnosed as Ehlers-Danlos Syndrome (EDS). The remand was necessary as the RO had yet to determine to what right knee symptoms were attributable to the service-connected EDS versus the service-connected right knee strain. EDS affects multiple joints. At the time service connection for a right knee disability diagnosed as EDS was granted, service connection was also granted for many other joints affected by EDS including the left knee, back, ankles, hips, shoulders, elbows, and wrists. In June 2015, the RO assigned a 100 percent disability rating pursuant to Diagnostic Code 5009, for EDS, with residual bilateral foot, ankles, knees, hips, hands, wrists, elbows, shoulders, and lumbosacral and cervical spine joint manifestations, effective December 20, 2010. 38 U.S.C.A. §38 C.F.R. § 4.71a. The 100 percent rating for EDS is in effect throughout the entire appeal period presently under consideration in regards to an increased rating for a right knee strain. Diagnostic Code 5009 concerns arthritis, other types. The Rating Schedule indicates Diagnostic Codes 5004 through 5009 are to be rated as rheumatoid arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5009. Diagnostic Code 5002, pertaining to rheumatoid arthritis, says it will be rated either as an active process or on the basis of chronic residuals. It is specifically noted that the ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis. The rating provider is to assign the higher possible evaluation. Id. A review of the evidence of record shows the symptomatology associated with the Veteran's right knee is attributable to his service-connected EDS not his service-connected right knee strain. In March 2013 and August 2014 letters, J. B., M.D., notes that EDS is characterized by recurrent joint dislocations, sprains, spontaneous subluxations, and chronic joint pain. Dr. B. then notes the Veteran has all the typical features associated with EDS. In a February 2012 letter, G. C. P., M.D., notes that the Veteran has EDS Type III, also known as the hypermobility form. Symptoms were noted to include hypermobility of multiple joints, frequent small-scale subluxations of the joints, overuse of muscles in an attempt to control the extra motion of joints, chronic pain, joint dislocations with minimal provocation, and a higher risk of early arthritic changes. In an April 2013 note, J. B. A., M.D., notes that EDS is characterized by hypermobility resulting in joint "sprains, dislocations, and spontaneous subluxations as well as chronic joint pain, [and] joint deterioration ...." Dr. A. further notes that the Veteran experienced all these symptoms. In a December 2011 letter, P. T., M.D., notes that EDS is characterized by recurrent joint dislocations, sprains, spontaneous subluxations, and chronic joint pain. Dr. P. found that the Veteran had all the typical features associated with EDS. In September 2011, a VA examiner was asked to address whether the Veteran experienced right knee subluxation or instability, and if so whether it is due to his service-connected right knee strain or service-connected EDS. The examiner responded that the Veteran had episodic subluxation of his right knee, which is not caused or aggravated by the right knee strain but was associated with EDS. Following a VA examination in January 2011, a VA examiner diagnosed EDS and noted that it had resulted in, among other things, early degenerative joint disease of the knees, genu recurvatum, and hypermobility of both knee interossei. A review of the VA examinations, VA and non-VA medical records, records provided by the Social Security Administration, and the Veteran's lay statements and testimony indicate that the Veteran experiences limitation of motion in the right knee, including hypermobility; chronic pain; subluxation and instability; genu recurvatum; and arthritis. However, as discussed above the evidence of record shows this symptomatology is attributable to his service connected EDS and not his service connected right knee strain. In regards to right knee subluxation, the September 2011 VA examiner explicitly found that it was attributable to EDS. Similarly, the January 2011 VA examiner made clear the Veteran's right knee degenerative joint disease and genu recurvatum were attributable to EDS. As to the other right knee symptomatology such as limitation of motion, including hypermobility; chronic pain; and arthritis, the numerous doctors' descriptions of EDS make clear that these symptoms are common EDS symptomatology. Therefore, to award the Veteran a rating in excess of 10 percent based on any of this symptomatology would amount to pyramiding. 38 C.F.R. § 4.14. As noted, a Veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady at 206. To the extent the Veteran's statements can be taken to indicate that this symptomatology is the result of his right knee strain and not EDS he has not demonstrated he has the medical expertise to make such a determination. Lay statements are competent evidence to provide opinions on some medical issues that are observable. However, as to this specific issue, whether his right knee symptomatology is attributable to a right knee strain or EDS, is beyond the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (finding that lay statements are not competent evidence to diagnose cancer). Accordingly, a rating in excess for a rating in excess of 10 percent for symptomatology associate with his service-connected right knee strain is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt. However, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for a right knee strain throughout the appeal period, and therefore, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Generally, evaluating a disability using either the corresponding or an analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2015). Because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but, nevertheless, would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of each of the Veteran's service-connected disabilities with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the applicable criteria reasonably describe the Veteran's disability level and symptomatology, then the Rating Schedule contemplates the Veteran's disability picture, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the disability picture associated with the Veteran's service connected right knee is not so unusual or exceptional in nature as to render the already assigned rating inadequate. A higher rating for service-connected right knee strain is being denied to avoid pyramiding the right knee symptomatology, range of motion problems, including hypermobility; chronic pain; subluxation and instability; genu recurvatum; and arthritis, which are contemplated by the Ratings Schedule. Specifically, the Rating Schedule provides for ratings based on limitation of knee motion, pain, knee subluxation or instability, genu recurvatum, and arthritis. The Veteran has not demonstrated right knee symptomatology so unusual that it would not be contemplated by the available rating criteria. Finally, the Board acknowledges the Veteran testified at his January 2012 hearing before the RO that he never refused testing of his knee extension as indicated in the June 2011 examination report. Nevertheless, even if the Board was to disregard the findings in the June 2011 examination report it would not change the determination that a rating in excess of 10 percent for a right knee strain is not warranted as the Board has found the Veteran's limitation of motion of the right knee are attributable to his EDS, which has been assigned a 100 percent evaluation throughout the appeal period. ORDER A rating in excess of 10 percent for a right knee strain is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs