Citation Nr: 1633976 Decision Date: 08/29/16 Archive Date: 08/31/16 DOCKET NO. 10-25 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for erectile dysfunction, claimed as secondary to service-connected right knee disability pain and medication. 2. Entitlement to service connection for hypertension, claimed as secondary to service-connected right knee disability pain and medication. 3. Entitlement to an increased evaluation for right total knee replacement (TKR) in excess of 30 percent prior to August 22, 2012, and in excess of 60 percent from that date. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from May 1971 to May 1973. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This rating decision granted an increased rating, to 30 percent evaluation, for the Veteran's TKR, effective March 30, 2009, the date of receipt of the Veteran's claim for an increased evaluation. The rating decision denied also service connection for hypertension and erectile dysfunction on a direct basis. A September 2012 rating decision granted service connection and assigned a separate 30 percent rating for right knee instability, effective August 22, 2012. It also granted a 60 percent evaluation for the Veteran's TKR, also effective August 22, 2012. In the rating decision, the RO specifically noted that the amputation rule in 38 C.F.R. § 4.68 was for application. The 60 percent rating for the TKR and separate 30 percent rating for instability combined to 70 percent, which exceed the amputation level of 60 percent. The Veteran testified at a March 2013 hearing before the undersigned. A transcript of the hearing is associated with the record. The Board remanded the claim in December 2013. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's April 2009 original claim for service connection, November 2009 correspondence, March 2013 testimony before the undersigned Veterans Law Judge during a Travel Board hearing and a May 2016 brief each make it clear that the Veteran seeks service connection for erectile dysfunction and hypertension only as secondary to service-connected right knee disability pain and medication. Significantly, the evidence does not suggest that the Veteran's erectile dysfunction or hypertension had their onset during or as a result of service, or that it may be so presumed with his hypertension. When neither the veteran nor the record raises the theory of entitlement to service connection on a direct basis, the Board need not sua sponte consider and discuss that theory. Therefore, the Board will not discuss direct or presumptive service connection. Robinson v. Mansfield, 21 Vet. App. 545 (2008). The RO in Roanoke, Virginia, has jurisdiction of the Veteran's claim. FINDINGS OF FACT 1. The competent medical evidence, and competent and credible lay evidence, does not show that the Veteran's erectile dysfunction was proximately caused or aggravated by a service-connected disability. 2. The competent medical evidence, and competent and credible lay evidence, does not show that the Veteran's hypertension was proximately caused or aggravated by a service-connected disability. 3. Affording the Veteran the benefit of the doubt, prior to August 22, 2012, the Veteran's right TKR most closely approximated chronic residuals consisting of severe painful motion or weakness. 4. The 60 percent evaluation for the Veteran's right TKR is the maximum assignable schedular disability rating. CONCLUSIONS OF LAW 1. Erectile dysfunction is not proximately due to, the result of or aggravated by service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.303, 3.304, 3.310(a) (2015). 2. Hypertension is not proximately due to, the result of or aggravated by service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.303, 3.304, 3.310(a) (2015). 3. The criteria for a 60 percent evaluation for right TKR, but not higher, prior to August 22, 2012, have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2015). 4. The criteria for an evaluation in excess of 60 percent for right TKR have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, VA 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 2015); 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). VA has not conducted an examination for the Veteran's service connection claims. As discussed below, there is no medical evidence indicating that the Veteran's current erectile dysfunction and/or hypertension may be etiologically associated with any service-connected disability. See 38 C.F.R. § 3.159(c)(4) (2015); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, a remand in order to obtain opinions regarding these issues is not required under McLendon. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Service Connection The Veteran contends that his right TKR results in pain, and requires medication, that cause his erectile dysfunction and hypertension. He has not specified how the pain and medication cause his erectile dysfunction or hypertension. He has not identified any temporal relationship between his right knee pain and medication and the onset of his erectile dysfunction and hypertension that demonstrates such a relationship. During his March 2013 hearing, he stated that his private treating physician had never related his hypertension to his right TKR, and had not addressed the etiology of his erectile dysfunction other than to describe it as eunuchoid. Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Based on a thorough review of the evidence, the Board finds that the preponderance of the evidence is against service connection for erectile dysfunction or hypertension, each claimed as secondary to service-connected right knee disability pain and medication. The private and VA medical records before the Board simply contain no evidence that the Veteran's erectile dysfunction and/or hypertension were proximately caused or aggravated by a service-connected disability. The Board acknowledges the Veteran's own assertions in support of his claim. He is competent to testify as to his observable symptoms after active duty. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Nevertheless, his general contentions do not constitute medical evidence in support of his claims. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the Veteran's erectile dysfunction or hypertension were proximately caused or aggravated by his service-connected right TKR) falls outside 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). As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claims. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for erectile dysfunction, claimed as secondary to service-connected disability, or service connection for hypertension, claimed as secondary to service-connected disability. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Evaluations Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a question arises as to which of two ratings applies under a particular code, the higher rating 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 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's right knee TKR is evaluated under Diagnostic Code 5055. Under this Diagnostic Code, a 100 percent rating is warranted for one year following implantation of the prosthesis. Following this period, the minimum rating is 30 percent. Intermediate degrees of residual weakness, pain, or limitation of motion will be rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula). A 60 percent rating is warranted where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in VA's 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 That is to say, use of these descriptive terms is not altogether dispositive of the rating that should be assigned, but it is nonetheless probative evidence to be considered in making this important determination. 38 C.F.R. §§ 4.2, 4.6. When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Based on a thorough review of the evidence, the Board finds that the evidence supports a 60 percent evaluation, but not higher, for right TKR prior to August 22, 2012. However, the preponderance of the evidence is against an evaluation in excess of 60 percent at any time during the appeal period. The Veteran filed the current claim for increased rating in March 2009. The report of an April 2009 VA examination provides that the Veteran underwent a TKR in 2007. The report further relates that the Veteran complained of right knee pain of 6/10, consisting of burning and aching, that occurred for 24 hours, 5 times a week. The pain was elicited by physical activity and relieved by rest, Ibuprofen and Aleve. On physical examination, the Veteran had weakness, tenderness and guarding of movement. Right knee range of motion was from zero to 110 degrees. After repetitive use, the Veteran's joint function was additionally limited by pain, fatigue, weakness, lack of endurance and incoordination. Pain had the major functional impact. The Board finds that these findings of chronic TKR residuals, consisting of painful motion and weakness, most closely approximate a 60 percent evaluation, prior to August 22, 2012, under Diagnostic Code 5055. Acknowledging that the term "severe" as used in the criteria for a 60 percent evaluation is not defined by the Rating Schedule, the Board finds that in this case a 60 percent evaluation, prior to August 22, 2012, is "equitable and just." 38 C.F.R. § 4.6. In this regard, the Board finds it significant that during a March 2013 hearing before the undersigned Veterans Law Judge, the Veteran testified that his symptoms, and the treatment they required, were just as severe prior to the August 22, 2012, VA examination (the basis for the Veteran's 60 percent evaluation, effective that same date) as they were after that date. The Board finds that the medical evidence supports the Veteran's testimony. The August 2012 VA examination provides physical findings congruent with, or in fact less severe than, those found by the April 2009 VA examination. During the 2012 examination, the Veteran complained of only mild pain and moderate weakness. Range of motion was from 5 degrees extension to 140 degrees of flexion, meaning that his overall limitation of motion was more severe in April 2009. After repetitive use testing in 2012, the Veteran had swelling and instability of station but no additional limitation of motion. In 2009, repetitive use testing resulted in additional limitation by pain, fatigue, weakness, lack of endurance and incoordination. Muscle testing of the right knee in 2012 showed normal strength, while in April 2009 the Veteran was noted to have right knee [muscle] weakness. Thus, the actual physical findings in the record reflect that the residuals of the Veteran's right knee TKR were at least as severe before August 22, 2012, as afterward, and warrant a 60 percent evaluation before that date. 38 C.F.R. § 4.6. Diagnostic Code 5055 does not provide for a schedular rating in excess of 60 percent. Additionally, the record contains no indication that the rating criteria are inadequate to rate the Veteran's right TKR. The discussion above reflects that the Veteran's symptoms are contemplated by the applicable rating criteria. On examination, he has demonstrated limited motion and objective signs of pain, fatigue, weakness, and lack of endurance. The rating schedules for all musculoskeletal disabilities contemplate such functional loss, including that caused by pain, stiffness, and limitation of range of motion. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the symptoms experienced by the Veteran are not considered exceptional or unusual and any functional loss has been adequately considered under the schedular rating criteria. The Board acknowledges that the Veteran's knee disability has an impact on his employment. However, the symptoms experienced by the Veteran are not considered to be exceptional or unusual and are taken into account by his current schedular ratings. Therefore, the Veteran's disability picture is contemplated by the rating schedule, the assigned 60 percent evaluation is adequate, and no referral for an extraschedular consideration is required. See Thun v. Peake, 22 Vet. App. 111 (2008). The Board further notes that the issue of whether referral for extraschedular consideration is warranted for the Veteran's disabilities on a collective basis has not been argued or reasonably raised by the record. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014); Yancy v. McDonald, 27 Vet. App. 484 (2016). The April 2009 VA examination found that the effect of the Veteran's disability on his usual occupation was the inability to stand or walk for long periods of time. The August 2012 VA examination found that the impact of the Veteran's disability on his ability to work was that he should not do any work that involved the right knee/lower extremity. During the Veteran's March 2013 hearing, he stated that he retired from Bell Atlantic in 2001, prior to his TKR. He did not assert that his TKR would preclude employment. Thus, the record does not raise a claim of entitlement to a total rating for compensation based on individual unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In sum, the evidence demonstrates that the Veteran is entitled to a 60 percent evaluation for right TKR, prior to August 22, 2012. The preponderance of the evidence is against evaluation in excess of 60 percent at any time during the appeal period. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert, supra. ORDER Service connection for erectile dysfunction, claimed as secondary to service-connected right knee disability pain and medication, is denied. Service connection for hypertension, claimed as secondary to service-connected right knee disability pain and medication, is denied. A 60 percent evaluation for right TKR, but not higher, prior to August 22, 2012, is granted, subject to the rules and regulations governing the award of monetary benefits. An evaluation in excess of 60 percent for right TKR at any time during the appeal period is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs