Citation Nr: 1803971 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-10 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased evaluation for retropatellar pain syndrome, left knee (also claimed as undiagnosed illness manifested by neurological impairment and joint pain), initially evaluated as 0 percent disabling prior to February 11, 2013, and as 10 percent disabling thereafter. 2. Entitlement to an increased evaluation for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for gastroesophageal reflux disease (GERD) with gastritis as associated with environmental hazards in Gulf War and/or secondary to or aggravated by irritable bowel syndrome and/or secondary to or aggravated by the medications taken to treat service connected disabilities (i.e. left knee, cubital tunnel syndrome, and chronic pain and neurological manifestations due to undiagnosed illness). REPRESENTATION Veteran represented by: Sean Kendall, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Brown, Associate Counsel INTRODUCTION The Veteran had active duty in the Army from December 1981 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2013, January 2014, and February 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In June 2017, the Veteran presented testimony in a videoconference hearing before the undersigned. A copy of the transcript has been associated with the claims folder. This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Prior to February 11, 2013, the Veteran's retropatellar pain syndrome, left knee, was manifested by painful motion. 2. In a June 2017 Board hearing, prior to the promulgation of an appellate decision, the Veteran's attorney stated that he wished to withdraw from appeal the Veteran's claim for an increased evaluation for his retropatellar pain syndrome, left knee, beginning February 11, 2013. 3. In a June 2017 Board hearing, prior to the promulgation of an appellate decision, the Veteran's attorney stated that he wished to withdraw from appeal the Veteran's claim for an increased evaluation for PTSD. 4. In a June 2017 Board hearing, prior to the promulgation of an appellate decision, the Veteran's attorney stated that he wished to withdraw from appeal the Veteran's claim for service connection for GERD with gastritis. CONCLUSIONS OF LAW 1. Prior to February 11, 2013, the criteria for a 10 percent rating, but not higher, for retropatellar pain syndrome, left knee, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5260 (2017). 2. The criteria for withdrawal of the appeal as to the claim for an increased evaluation for his retropatellar pain syndrome, left knee, beginning February 11, 2013, are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the appeal as to the claim for an increased evaluation for PTSD are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of the appeal as to the claim for service connection for GERD with gastritis are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Retropatellar Pain Syndrome, Left knee (Prior to February 11, 2013) - Duties to Notify and Assist Neither the Veteran nor his 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 Evaluations Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2017). Although 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). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2017). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14 (2017). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2017). For the purpose of rating disability from arthritis, the spine, shoulder, elbow, wrist, hip, knee, and ankle are considered major joints. 38 C.F.R. § 4.45 (2017). Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2017). Traumatic arthritis is rated using Diagnostic Code 5010, which directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis 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. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2017). When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1 (2017). The Veteran essentially contends that his left knee disability is more disabling than contemplated by the 0 percent evaluation prior to February 11, 2013. Prior to February 11, 2013, the Veteran's left knee disability was evaluated under Diagnostic Codes 5299-5260. See 38 C.F.R. § 4.71a (2017). Under 38 C.F.R. § 4.27, unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99." Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. As such, the Veteran's left knee disability has been rated under DC 5260 based on limitation of flexion of the leg. Under Diagnostic Code 5260, for limitation of flexion of the knee, zero, 10, 20, and maximum 30 percent evaluations are assigned for flexion limited to 60, 45, 30, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). Under Diagnostic Code 5261, for limitation of knee extension, zero, 10, 20, 30, 40, and maximum 50 percent evaluations are assigned for extension limited to 5, 10, 15, 20, 30, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II (2017). Separate ratings under Diagnostic Code 5260 and 5261 may be assigned for disability of the same joint. See VAOPGCPREC 9-2004. Diagnostic Code 5258 provides that a 20 percent evaluation is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2017). During his June 2017 Board hearing, the Veteran testified regarding his joint pain, which involved his knees. He stated that he took over-the-counter medications for the pain. In a January 2007 VA examination, the Veteran complained of pain in his knees, stating that the pain had been present since around 1992 to 1993. The examiner noted that from a functional standpoint, the Veteran could not do any prolonged walking, standing, or sitting. With repetitive use of his joints, the Veteran had an increase in pain, but no change in range of motion. An examination of the Veteran's knees did not reveal any tenderness in either knee. There was no joint effusion or instability of either knee. The Veteran did have moderate crepitus bilaterally. His range of motion was found to be normal. The Veteran had extension in both knees to 0 degrees and flexion to 140 degrees. With repetition, there was no additional loss in range of motion due to pain, fatigue, weakness, or incoordination. The Veteran was diagnosed with pain in the bilateral knees with normal range of motion and normal x-rays. A July 2012 VA examination indicated that the Veteran had symmetrical pain exacerbated by activity for many of his joints, including his left knee. The Veteran was not noted to have any limitation of joint movement attributable to his condition. However, the Veteran did have frequent non-incapacitating exacerbations, which were associated with pain with use, or overuse. The examiner noted that the functional impact of the Veteran's disability resulted in him not working for the past 18 months. Upon further inquiry, the examiner provided the range of motion for the left knee, stating that extension was 0 degrees on 3 repetitions, and flexion was 140 degrees on 3 repetitions. There was no laxity and no objective evidence of painful motion. The Board has also considered the effect of pain and weakness in evaluating the Veteran's left knee disability. 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, 8 Vet. App. 202 (1995). In his June 2017 Board hearing, the Veteran stated that he had experienced joint pain in his knees, and took over-the-counter medication to alleviate his symptoms. In his January 2007 VA examination, the Veteran complained of pain in his knees, stating that the pain had been present since around 1992 to 1993. The examiner noted that from a functional standpoint, the Veteran could not do any prolonged walking, standing, or sitting. With repetitive use of his joints, the Veteran had an increase in pain. However, with repetition, there was no additional loss in range of motion due to pain, fatigue, weakness, or incoordination. A July 2012 VA examination indicated that the Veteran had symmetrical pain exacerbated by activity for many of his joints, including his left knee. The Veteran was not noted to have any limitation of joint movement attributable to his condition. The Veteran did have frequent non-incapacitating exacerbations, which were associated with pain with use, or overuse. The examiner noted that the functional impact of the Veteran's disability resulted in him not working for the past 18 months. There was no objective evidence of painful motion. Based on the evidence, the Board finds that the current noncompensable evaluation prior to February 11, 2013, does not adequately portray any functional impairment, pain, and limitation of motion that the Veteran experiences as a consequence of use of his left knee. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca, 8 Vet. App. 202; Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011) (noting that compensation for pain on motion constituting functional loss is limited to a 10 percent evaluation per joint where there is no actual limitation of motion). An evaluation of 10 percent, but no more, under Diagnostic Code 5260 prior to February 11, 2013, is warranted. While the Veteran demonstrated a normal range of motion from 0 degrees to 140 degrees over the entire period, he has experienced painful motion as well which appears to be exacerbated by activity. The Board has evaluated the Veteran's knee disability under alternative diagnostic codes to determine if there is any basis to increase the assigned rating or assign separate evaluations. The Board notes that separate ratings may be assigned for knee disabilities under Diagnostic Codes 5257 and 5003 where there is recurrent subluxation or lateral instability in addition to X-ray evidence of arthritis. See generally VAOPGCPREC 23-97 and VAOPGCREC 9- 98. In this case, there is no indication of recurrent subluxation or lateral instability, and X-rays show no arthritis. Thus, a separate evaluation is not warranted. Additionally, the evidence does not support an award for an increased rating under Diagnostic Code 5256 for ankylosis of the knee; Diagnostic Code 5259 for symptomatic removal of semilunar cartilage; Diagnostic Code 5262 for impairment of tibia and fibula; or Diagnostic Code 5263 for genu recurvatum as none of these disabilities have been demonstrated. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5259, 5262, 5263 (2017). In sum, prior to February 11, 2013, an evaluation of 10 percent is warranted. - Other Considerations The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Retropatellar Pain Syndrome, Left knee (Beginning February 11, 2013); PTSD; and GERD with Gastritis Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2017). An appeal withdrawn on record during a hearing is an exception to the requirement for a written withdrawal. See 38 C.F.R. § 20.204(b). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2017). In the present case, during the June 2017 Board hearing, the Veteran's attorney withdrew from appeal the following claims: an increased evaluation for retropatellar pain syndrome, left knee, beginning February 11, 2013; an increased evaluation for PTSD; and service connection for GERD with gastritis. Hence, with respect to these claims, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to these matters, and they must be dismissed. ORDER Prior to February 11, 2013, entitlement to a 10 percent evaluation, but not higher, for retropatellar pain syndrome, left knee, is allowed, subject to the regulations governing the award of monetary benefits. Entitlement to an increased evaluation for his retropatellar pain syndrome, left knee, beginning February 11, 2013, is dismissed. Entitlement to an increased evaluation for PTSD is dismissed. Entitlement to service connection for GERD with gastritis is dismissed. ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs