Citation Nr: 1800774 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 06-25 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased disability rating more than 10 percent prior to December 15, 2015 and more than 30 percent thereafter for ulnar nerve compression of the right upper (dominant) extremity. 2. Entitlement to an increased disability rating more than 10 percent prior to December 15, 2015 and more than 20 percent thereafter for ulnar nerve compression of the left upper (nondominant) extremity. 3. Entitlement to an increased disability rating more than 20 percent from September 29, 2016 for a left knee disability based on range of motion. 4. Entitlement to a separate disability rating other than based on range of motion for a left knee disability. 5. Entitlement to an increased disability rating more than 20 percent from September 29, 2016 for a right knee disability based on range of motion. 5. Entitlement to a separate disability rating other than based on range of motion for a right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Saindon, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1997 to June 1997. These matters come before the Board of Veterans' Appeals (Board) from March 2005 and March 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina. The Veteran testified before the undersigned Veterans Law Judge at a travel Board hearing in October 2007. This hearing focused, in pertinent part, on the Veteran's right knee disability claim. The transcript is of record. In May 2017, the Board decided the issue of entitlement to an increased rating based on range of motion prior to September 29, 2016, but remanded the issue of entitlement to an increased rating based on range of motion since that date. Accordingly, only the period from September 29, 2016 is on appeal for those claims. The remaining issues were remanded for further development. All issues have returned for adjudication. FINDINGS OF FACT 1. The Veteran's lower left arm disability is most comparable to mild incomplete paralysis of the median nerve prior to December 15, 2015 and moderate incomplete paralysis of the median nerve thereafter. 2. The Veteran's lower right arm disability is most comparable to mild incomplete paralysis of the median nerve prior to December 15, 2015 and moderate incomplete paralysis of the median nerve thereafter. 3. The Veteran's left knee range of motion was most appropriately characterized as 0 to 30 degrees from September 29, 2016 to June 14, 2017 and from 10 to 25 degrees thereafter. 4. The Veteran's left knee meniscal condition and lateral instability are not related to her service-connected degenerative joint disease of the left knee. 5. The Veteran's right knee range of motion was most appropriately characterized as 0 to 30 degrees from September 29, 2016 to June 14, 2017 and from 10 to 25 degrees thereafter. 6. The Veteran's right knee meniscal condition and lateral instability are not related to her service-connected degenerative joint disease of the right knee. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased disability rating more than 10 percent prior to December 15, 2015 and more than 30 percent thereafter for an ulnar nerve compression of the right upper (dominant) extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124a, Diagnostic Codes 8614, 8615, 8616. 2. The criteria for entitlement to an increased disability rating more than 10 percent prior to December 15, 2015 and more than 20 percent thereafter for an ulnar nerve compression of the left upper (nondominant) extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124a, Diagnostic Codes 8614, 8615, 8616. 3. The criteria for entitlement to an increased disability rating more than 20 percent from September 29, 2016 to June 14, 2017 for a left knee disorder based on range of motion have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5260, 5261. 4. The criteria for entitlement to an increased disability rating more than 20 percent based on flexion of the left knee from June 14, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5260, 5261. 5. The criteria for entitlement to an additional 10 percent disability rating, but no more, based on extension of the left knee from June 14, 2017 have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5260, 5261. 6. The criteria for entitlement to a separate disability rating other than based on range of motion for a left knee disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5257, 5258, 5259. 7. The criteria for entitlement to an increased disability rating more than 20 percent from September 29, 2016 to June 14, 2017 for a right knee disorder based on range of motion have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5260, 5261. 8. The criteria for entitlement to an increased disability rating more than 20 percent based on flexion of the right knee from June 14, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5260, 5261. 9. The criteria for entitlement to an additional 10 percent disability rating, but no more, based on extension of the right knee from June 14, 2017 have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5260, 5261. 10. The criteria for entitlement to a separate disability rating other than based on range of motion for a right knee disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5257, 5258, 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide the reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Board must consider the competency, credibility, and weight of all evidence, including the medical evidence, to determine its probative value. The Board must then account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). Equal weight is not accorded to each piece of evidence contained in the record and every item of evidence does not have the same probative value. If the evidence weighs in favor of the Veteran or is in relative equipoise, the Veteran will prevail. On the other hand, if the preponderance of the evidence is against the Veteran, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are based on VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found are warranted, a practice of assigning ratings referred to as "staging the ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present. 38 C.F.R. § 4.2. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). ISSUES 1 & 2: Increased Ratings for Ulnar Neuropathy The Veteran is service connected for neuritis of her bilateral lower upper extremities. This has been variously rated under the diagnostic codes for the median nerve (8615), the ulnar nerve (8616) and the musculospiral, or radial, nerve (8614). 38 C.F.R. § 4.124a. The Veteran's disability, however, has remained the same and she has remained service connected. A disability is generally associated with the veteran's inability to perform certain acts and "a change in the situs of the disability does not change the categorization of the disability such that service connection for one disability is severed and service connection for another disability is created." Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011). Here, the Veteran's disability has been characterized by complaints of pain and functional loss in the forearm and hands. The examiners attributed this to either her median or ulnar nerve, although the ulnar nerve was generally preferred. Even though the ulnar nerve was preferred by the examiners, the median nerve provides a higher possible rating scale. However, to be more Veteran friendly, the Board finds the median nerve diagnostic code should be used. This also comports with the Veteran's initial service connection claim for carpel tunnel syndrome. See Mosby's Medical Dictionary, 8th edition. S.v. "carpal tunnel syndrome." Retrieved December 6 2017 from https://medical-dictionary.thefreedictionary.com/carpal+tunnel+syndrome ("a common painful disorder of the wrist and hand, caused by compression on the median nerve . . ."). The Veteran should be rated under diagnostic code 8615. Although the Veteran is currently rated under the radial nerve, the radial nerve does not comport with the medical evaluations. In any event, the rating scales for the radial and median nerves are the same, so there is no harm to the Veteran in specifying the use of the median nerve diagnostic code. Diagnostic code 8615 provides for a rating of 50 percent (dominant) or 40 percent (non-dominant) for severe incomplete paralysis; 30 percent (dominant) or 20 percent (non-dominant) for moderate incomplete paralysis; and 10 percent for mild incomplete paralysis. 38 C.F.R. § 4.123 provides that neuritis may be rated to a maximum equal to severe, incomplete paralysis, or for neuritis not characterized by organic changes, moderate. As a severe rating is not warranted, the Board need not consider whether the Veteran's neuritis is characterized by organic changes. The Board previously remanded the Veteran's lower arm disability claims for further electromyography testing to evaluate their severity. VA examined the Veteran's peripheral nerves in June 2016; however, the examiner did not conduct electromyographic testing. This was not an oversight. Rather, the examiner later explained that further electromyographic testing would not be useful. Per the examiner, the Veteran already had had multiple electromyographic tests that confirmed her diagnosis and further testing would not change her condition or treatment. In other words, additional testing would not, in the examiner's opinion, provide additional useful information. The 2017 VA examiner diagnosed the Veteran with neuropathy. The examiner opined that the neuropathy was best characterized as mild incomplete paralysis of the ulnar or median nerves. The examiner did report that the Veteran had some "moderate" symptoms, but those moderate symptoms did not change the examiner's opinion that the best characterization was "mild". VA had previously examined the Veteran's nerves in September 2016. The September 2016 examiner also identified the Veteran's nerves as mild incomplete paralysis of the ulnar nerve. The Veteran reported having "severe" symptoms, but these were the Veteran's reports and not the examiner's opinion of the severity of the paralysis. The Veteran is competent to report symptoms of her arm disability, but the characteristic of the paralysis requires additional medical training and experience to classify. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). VA had previously examined the Veteran's nerves in December 2015. This examiner only considered the ulnar neuropathies, which he characterized as moderate incomplete paralysis. Symptoms varied between "none" for pain and "moderate" for paresthesias. VA had previously examined the Veteran's nerves in June 2012. The examiner opined that the Veteran did not have ulnar neuropathies. He noted that the Veteran's previous nerve conduction test was borderline, but within the normal range. A different examiner from June 2012 identified ulnar neuropathy most approximating a mild incomplete paralysis. The weight of the evidence is against a rating of severe incomplete paralysis. The examiners--with only one exception--have described the Veteran's condition as mild incomplete paralysis. The one exception opined that it would be moderate incomplete paralysis. Moreover, the Veteran's most recent examiner returned to an opinion of mild, which indicated that the Veteran's condition was not worsening. The Veteran is already rated at the moderate level. A higher rating is not appropriate. The weight of the evidence is also against a rating of moderate incomplete paralysis prior to December 15, 2015. The Veteran was uniformly considered to have the equivalent of mild incomplete paralysis by several examiners prior to that date. Moreover, the earlier electromyography was equivocal as to whether the Veteran had the equivalent of any paralysis at earlier stages. Taken together, a moderate rating is no appropriate. The Board notes that the regulations do not define mild, moderate, or severe. However, the Disability Benefits Questionnaire (DBQ) completed by the examiners specified that the Veteran's symptoms were mild or moderate (in 2015) as opposed to severe. The DBQ was completed by medical professionals who formulated that conclusion based on a physical examination, review of the record, and interview of the Veteran. The Board has no basis to contradict the conclusion made by the examiners. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). As the weight of the evidence is against an increased rating, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. ISSUES 3 & 5: Increased Rating for Knee Range of Motion Limitation on range of motion for the knee is rated under diagnostic codes 5260 (flexion) and 5261 (extension). 38 C.F.R. § 4.71a. For flexion, a 30 percent rating is available for limitation to 15 degrees, a 20 percent rating is available for limitation to 30 degrees, and a 10 percent rating is available for limitation to 45 degrees. For extension, a 50 percent rating is available for limitation to 45 degrees, a 40 percent rating is available for limitation to 30 degrees, a 30 percent rating is available for limitation to 20 degrees, a 20 percent evaluation is available for limitation to 15 degrees, a 10 percent evaluation is available for limitation to 10 degrees, and a non-compensable rating is available for limitation to 5 degrees. VA examined the Veteran's knees in September 2016. The examiner measured the flexion and extension on both knees to be from 0 to 35 degrees and from 35 to 0 degrees. VA examined the Veteran again on June 14, 2017. The examiner measured the flexion and extension on both knees to be from 5 to 25 degrees and from 25 to 5 degrees. The measured ranges indicated a worsening, but not a significant enough worsening to change the rating amounts based on the diagnostic codes in the abstract. As the Board discussed previously, however, it is necessary to consider, along with the schedular ranges of motion, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Like the examiners that opined before, the 2017 examiner found that pain significantly limited functional ability with flare-ups. Also like the previous examiners, the 2017 examiner could not provide a range of motion to associate with that pain. In the last decision, the Board held that at no point up to and including the September 2016 examination did the Veteran's knees resemble the 15 degrees or less flexion requirement. Instead, the Veteran's flexion most closely resembled the 30 degrees or less criteria. In doing so, the Board reasoned that the Veteran never had been measured to have less than 30 degrees of flexion and a history of several 30 degree measurements. Although the 2017 examiner measured five degrees less, or 25 degrees, that was still ten degrees, or 2/3rds of the difference, away from 15 degrees. The Veteran's functional complaints of limited activity, pain, and need to rest are all consistent with her previous functional limitations. Accordingly, even though the Veteran's flexion has worsened somewhat, it still more closely approximates a 20 percent rating. The Veteran's extension also worsened. Previously she had no limitations on extension, but the 2017 examiner measured her as limited to five degrees. A limitation of five degrees is explicitly non-compensable in the rating schedule. The 2017 examiner also stated, however, that pain significantly limited the Veteran's functional ability with flare-ups. The Veteran reported to the examiner that standing more than 15 minutes caused problems and required the Veteran to sit down. Standing is done by extending the legs and the Veteran's limitation on standing can be seen as an additional functional limitation on extension. This increased functional loss is best approximated by increasing the Veteran's five degrees to ten degrees. The examiner could not provide an estimated range of additional functional loss, and so mathematical precision is not possible, but this range accounts for her functional limitation on standing while still acknowledging that standing and walking is possible. A greater, 15 degree, limitation has also been considered, but this represents a tripling of her measured limitation. Such a limitation, combined with her limitation of flexion would come close to an ankylosed joint, which the examiner opined the Veteran did not have. Accordingly, a 10 percent limitation on extension most closely approximates the Veteran's functional limitations during a flare-up. Because the Veteran's condition worsened, and this worsening was first established at the rating examination of June 14, 2017, the 10 percent rating should be effective from that date. ISSUES 4 & 6: Additional Diagnostic Codes The Board previously remanded the issue of whether to grant additional disability under diagnostic codes 5257, 5258, and 5259. As noted by the Board, an August 2011 examiner opined that the Veteran's meniscus tear was unrelated to her service-connected knee disabilities, but the medical record was not entirely consistent. Diagnostic code 5257 provides ratings for recurrent subluxation or lateral instability. Diagnostic code 5258 provides a rating for semilunar cartilage dislocation with "locking", pain, and effusion. Diagnostic code 5259 provides a rating for removal of the semilunar cartilage. Semilunar cartilage is another name for the menisci in the knee. See The American Heritage(r) Medical Dictionary. S.v. "semilunar cartilage." Retrieved December 8 2017 from https://medical-dictionary.thefreedictionary.com/semilunar+cartilage. VA examined the Veteran's knees in June 2017. The examiner found meniscal tears in both knees. The examiner opined that these tears would result in lateral instability and pain, but opined that the meniscal tears and injuries were unrelated to the Veteran's service connected knee disability. The examiner explained that the Veteran's service-connected condition was degenerative joint disease of the knees. Degenerative joint disease, however, would not cause or impact meniscal damage. The examiner explained that the opposite could happen, that is meniscal tears could cause degenerative joint disease, but degenerative joint disease was not etiologically related to meniscal injuries in the other direction. The Veteran's prior examinations noted a meniscal condition, but did not identify whether they related to service with one exception. The August 2011 VA examiner mentioned that the Veteran was not service connected for her meniscal condition. The weight of the evidence, including the June 2017 and August 2011 examiners opinions, is against a finding that ratings under diagnostic codes 5257, 5258, or 5259 are appropriate. The meniscal conditions are not related to the Veteran's service connected degenerative joint disease, and the lateral instability is due to the Veteran's meniscal conditions. ORDER The Veteran's bilateral ulnar nerve compression is to be rated under diagnostic code 8615. Entitlement to an increased disability rating more than 10 percent prior to December 15, 2015 and more than 30 percent thereafter for an ulnar nerve compression of the right upper (dominant) extremity is denied. Entitlement to an increased disability rating more than 10 percent prior to December 15, 2015 and more than 20 percent thereafter for an ulnar nerve compression of the left upper (nondominant) extremity is denied. Entitlement to a disability rating more than 20 percent for flexion of the left knee from September 29, 2016 is denied. Entitlement to a disability rating of 10 percent, but no more, for extension of the left knee is granted from June 14, 2017, subject to the laws and regulations governing the payment of awards. Entitlement to a separate disability rating other than based on range of motion for the left knee is denied. Entitlement to a disability rating more than 20 percent for flexion of the left knee from September 29, 2016 is denied. Entitlement to a disability rating of 10 percent, but no more, for extension of the right knee is granted from June 14, 2017, subject to the laws and regulations governing the payment of awards. Entitlement to a separate disability rating other than based on range of motion for the right knee is denied. ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs