Citation Nr: 1801762 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-38 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for right knee osteoarthritis. 2. Entitlement to a disability rating in excess of 10 percent for right knee instability. 3. Entitlement to a disability rating in excess of 10 percent for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from February 1961 to February 1964 and from August 1975 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A videoconference hearing was scheduled for November 2017. However, the Veteran wrote to withdraw his hearing request. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into account the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's right knee has range of motion from 0 to 120 degrees. 2. More than slight or mild instability of the right knee has not been clinically established. 3. At no time during the appeal period has the Veteran's hypertension been manifested by diastolic pressure of predominantly 110 or more, or systolic pressure of predominantly 200 or more. His blood pressure is controlled with medication. CONCLUSION OF LAW 1. The criteria for an evaluation in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1, 4.7, 4.71a, Diagnostic Codes 5010, 5260, 5261 (2017). 2. The criteria for an evaluation in excess of 10 percent for right knee instability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1, 4.7, 4.71a, Diagnostic Codes 5257 (2017). 3. The criteria for an evaluation in excess of 10 percent for hypertension are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.104, Diagnostic Code 7101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. Because service connection, an initial rating, and an effective date have been assigned, the notice requirements of the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5103 (a), have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Moreover, notice and development has subsequently been accomplished in association with these current claims. Consequently, discussion of VA's compliance with VCAA notice requirements as they relate to the increased rating claim is not necessary. VA has made reasonable efforts to assist the appellant by obtaining relevant records which he has adequately identified. This includes securing service, VA, and private treatment records and providing adequate VA examinations. The Veteran was notified and is aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness in adjudicating his increased rating claim. 38 C.F.R. § 3.159 (c) (2017). Neither the Veteran nor his representative have suggested that there is any defect in notice or assistance in developing the claim. II. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7 and 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two disability evaluations are potentially applicable, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran filed a claim for increased evaluations on February 4, 2013. Therefore, the Board looks to the evidence since one year prior to the date of filing the claim. A. Right Knee Osteoarthritis and Right Knee Instability The Veteran seeks higher evaluations for his service-connected right knee arthritis and instability. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to also recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. § 4.59. The Veteran is presently assigned a 10 percent rating based on limitation of motion under Diagnostic Code 5010, and a 10 percent rating under Diagnostic Code 5257 based on instability. Diagnostic Code 5010 provides that traumatic arthritis will be rated as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. § 4.71a. Under Diagnostic Code 5003, degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5260 (limitation of flexion of the leg) provides a 10 percent (compensable) rating when flexion is limited to 45 degrees; 20 percent rating when flexion is limited to 30 degrees; and 30 percent rating when flexion is limited to 15 degrees. Diagnostic Code 5261 (limitation of extension of the leg) provides a 10 percent (compensable) rating when extension is limited to 10 degrees; a 20 percent rating when extension is limited to 15 degrees; a 30 percent rating when extension is limited to 20 degrees, a 40 percent rating when extension is limited 30 degrees, and a 50 percent rating, the maximum available, when extension is limited to 45 degrees. For VA compensation purposes, normal range of motion for the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5257, a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2017). Diagnostic Code 5257 is based upon instability and subluxation, not limitation of motion, as a result, the factors set forth in 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 do not apply. DeLuca, supra. The words "slight," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. 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 (2017). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2017). The Board observes that the Veteran's current 10 percent evaluations for right knee osteoarthritis and for right knee instability have been in effect since September 1992. The Veteran's claim for an increased evaluation was received in February 2013. In June 2012, x rays of the Veteran's right knee were taken by a private physician. It is noted that there was degenerative joint disease, but no traumatic or destructive lesion seen. There was no evidence of fracture, dislocation, destructive lesion, soft tissue mass, free air, or radiopaque foreign body. A February 2013 VA physician's note indicates that the Veteran had mild tenderness around right knee patella, but no edema was observed. In May 2017, the Veteran underwent a Knee and Lower Leg VA examination. At the examination, the Veteran reported that he had achy lateral and medial right knee pain that occurred after prolonged sitting. He also reported that he had fallen in the past due to his right knee buckling. Initial range of motion (ROM) for the right knee was determined to be: flexion between 0 to 120 degrees and extension between 120 to 0 degrees. Pain was exhibited during flexion. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, no evidence of pain with weight bearing, and no evidence of crepitus. The Veteran was able to perform repetitive-use testing, but there was no additional loss of function or ROM after repetitions for the right knee. Pain was noted to have caused functional loss with repeated use over a period of time with his right knee, but there was no change in ROM. No flare ups were reported. No muscle atrophy or ankylosis was found. There was objective evidence of pain when the right knee was used in non-weight bearing. Passive ROM is the same as active ROM. During the same examination, the examiner noted a history of right lateral instability and recurrent effusion. The Veteran reported swellings of his right knee. The joint stability testing revealed that the Veteran had 1+ (0 to 5 millimeters) of lateral instability in the scale from 1+ to 3+ with 3+ the most severe. There was no anterior instability, posterior instability, or medial instability. The lateral instability was described as slight. The May 2017 medical examiner concluded that there was no change in diagnoses and no additional diagnosis needed to be rendered. Based on the review of the medical evidence of record, the Board finds that the Veteran is not entitled to ratings in excess of those currently assigned. Regarding the Veteran's instability of his right knee, he is presently assigned a 10 percent rating. To warrant a higher 20 percent rating, the evidence would need to show moderate instability. The Board notes that the Veteran has reported instability throughout the entire period on appeal. However, upon joint stability tests at the VA examination in May 2017, the objective results, at worst, show mild or slight instability. Therefore, entitlement to a 20 percent rating based on moderate instability has not been shown. Regarding the Veteran's rating based on osteoarthritis, the Board finds that the evidence does not support a rating in excess of the 10 percent presently assigned. The Veteran has evidence of arthritis upon x-ray. The Veteran's flexion is limited to 120 degrees and there is no loss of ROM in extension, which give rise to 0 percent rating under Diagnostic Codes 5260 and 5261 respectively. The 10 percent rating was assigned due to pain exhibited during flexion ROM testing under 38 C.F.R. § 4.59. Hence, to warrant a higher rating would require the Veteran's flexion to be limited to 30 degrees or extension to be limited to 15 degrees, neither of which applies to the Veteran's right knee condition. It is clear from the Veteran's competent, credible description of his symptoms that there is limited painful motion and instability. The Veteran is currently in receipt of 10 percent ratings to compensate for those symptoms. However, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40 (2017). The medical evidence of record does not support a finding that the Veteran has functional loss in his knees due to his disabilities such that higher ratings are warranted. His VA examination, VA medical records, and private records noted that the Veteran's pain caused some functional impairment such as painful motion and less movement than normal. The Veteran reported that his knee was worse with prolonged sitting. However, at the VA examination, the examiner noted the Veteran's knee was not additionally limited by fatigue, weakness, lack of endurance, or incoordination. As such, evaluations in excess of those currently assigned are not warranted at any time during the appeal period based on limitation of motion. The Board must also consider other potentially applicable Diagnostic Codes for the Veteran's right knee disabilities. Other diagnostic codes that can provide compensable ratings relating to the knees are Diagnostic Code 5256 (ankylosis), Diagnostic Code 5258 (symptomatic dislocation of semilunar cartilage with frequent episodes of pain, locking and effusion into the joint), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5262 (impairment of tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). 38 C.F.R. § 4.71a. However, separate or increased ratings in accordance with these Diagnostic Codes are not warranted. The Veteran was not found to have any ankylosis, impairment of the tibia or fibula, or meniscus disorders. The Board has considered whether the benefit of the doubt rule applies to this appeal. 38 U.S.C. § 5107 (b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). However, a preponderance of the evidence is against increased evaluations in excess of those presently assigned at any point during the appeal period; thus, this rule does not apply and the claims must be denied. B. Hypertension The Veteran seeks entitlement to an evaluation in excess of 10 percent for hypertension. Under the provisions of Diagnostic Code 7101, a 10 percent rating is warranted when the diastolic pressure is predominantly 100 or more, or systolic pressure is predominantly 160 or more, or for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. A 20 percent rating contemplates diastolic pressure of predominantly 110 or more, or systolic pressure predominantly 200 or more. Id. A 40 percent rating is assigned when the diastolic pressure is predominantly 120 or more. Id. The highest rating of 60 percent rating is warranted when the diastolic pressure is predominantly 130 or more. Id. The Board observes that the Veteran's current 10 percent evaluation for hypertension has been in effect since September 1992 and that he is prescribed medication to treat his hypertension. The Veteran's claim for an increased evaluation was received in February 2013. The Veteran's VA and private medical records reveal that the Veteran's blood pressure was 161 (systolic) / 65 (diastolic) in December 2012; 152 / 72 in July 2013; 121/67 in August 2013; 184/74 in September 2013; 185/74 in October 2013; and 146/71 in December 2013. The Veteran was afforded a VA examination in May 2017. The Veteran reported a prolonged history of hypertension, but he was found asymptomatic. The condition, however, has worsened and medication was increased accordingly. The average blood pressure at the examination was 151/63. The evidence of record demonstrates that the Veteran's diastolic pressure did not go above 110 or systolic pressure above 200 at any time during the appeal period. Therefore, the criteria for an evaluation higher than 10 percent based on diastolic pressure of predominantly 110 or more, or systolic pressure predominantly 200 or more are consequently not met. 38 C.F.R. § 4.104, Diagnostic Code 7101. ORDER An evaluation in excess of 10 percent for right knee osteoarthritis is denied. An evaluation in excess of 10 percent for right knee instability is denied. An evaluation in excess of 10 percent for hypertension is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs