Citation Nr: 18144736 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-37 934 DATE: October 25, 2018 ORDER Entitlement to service connection for chronic fatigue syndrome (CFS), including as secondary to the service-connected degenerative joint disease (DJD) of bilateral knees and the service-connected mood disorder, is denied. Entitlement to an evaluation greater than 10 percent for the service-connected DJD left knee is denied. Entitlement to an evaluation greater than 10 percent for the service-connected DJD of the right knee is denied. Entitlement to an initial compensable evaluation for the service-connected limitation of extension prior to and beginning August 5, 2015 in the left knee is denied. Entitlement to an initial compensable evaluation for the service-connected limitation of extension prior to and beginning August 5, 2015 in the right knee is denied. REMANDED Entitlement to a total disability evaluation for individual unemployability (TDIU), including on an extraschedular basis is remanded. FINDINGS OF FACT 1. The medical evidence does not establish that the Veteran is diagnosed with CFS. 2. The medical evidence shows that the service-connected DJD of the left knee is manifested by flexion motion limited to 80 at its most restricted, without evidence of recurrent subluxation or lateral instability, dislocated or symptomatic cartilage, impairment of the tibia or fibula, or genu recurvatum. 3. Both prior to and since August 5, 2015, the medical evidence shows that the service-connected limitation of extension motion in the left knee is manifested by extension limited to five degrees at its most restricted. 4. The medical evidence shows that the service-connected DJD of the right knee is manifested by flexion motion limited to 80 at its most restricted, without evidence of recurrent subluxation or lateral instability, dislocated or symptomatic cartilage, impairment of the tibia or fibula, or genu recurvatum. 5. Both prior to and since August 5, 2015, the medical evidence shows that the service-connected limitation of extension motion in the right knee is manifested by extension limited to five degrees at its most restricted. CONCLUSIONS OF LAW 1. The criteria for service connection for CFS, including as secondary to the service-connected DJD of bilateral knees and/or the service-connected mood disorder, have not been satisfied. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for an evaluation greater than 10 percent for the service-connected DJD of the left knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.59, 4.71a, Diagnostic Codes (DCs) 5010-5260 (2017). 3. Both prior to and beginning August 5, 2015, the criteria for an initial compensable evaluation for limited extension motion is the left knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.59, 4.71a, DC 5261 (2017). 4. The criteria for an evaluation greater than 10 percent for the service-connected DJD of the right knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.59, 4.71a, DCs 5010-5260 (2017). 5. Both prior to and beginning August 5, 2015, the criteria for an initial compensable evaluation for limited extension motion is the right knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.59, 4.71a, DC 5261 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service in the U.S. Army from June 1986 to August 1990. In his 2016 substantive appeal, the Veteran asked to testify before a Veterans Law Judge appearing at his local office. He withdrew this request in writing in 2017. In April 2018, the Veteran attempted to opt-in to the Rapid Appeals Modernization Program (RAMP). In June 2018, the agency of original jurisdiction (AOJ) notified him that his appeals were not eligible for RAMP processing as they were already activated by the Board. The Board will continue under current appeals procedures. During this appeal, the AOJ granted a noncompensable evaluation, each, for limitation of left and right knee extension measured to 5 degrees under DC 5261. As this is not the maximum evaluation afforded by the DC, and the assignment was not made effective to the date of claim for increase in 2014, the assignment of an initial compensable evaluation under DC 5261 for limitation of extension motion in both the left and right knees remain part of the appeal now before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition, the record shows that the Veteran has been found unable to work, due in part to his service-connected knee disabilities. In an August 2015 rating decision, nonservice-connected pension was granted on this basis. Since then, he has been service-connected for mood disorder. Given the Veteran’s claim for increased evaluations for his knee disabilities, and the circumstances in this case, the issue of TDIU is before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues are thus recharacterized as shown on the front page of this decision. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). Entitlement to service connection for CFS, including as secondary to the service-connected DJD of bilateral knees and the service-connected mood disorder The Veteran argues that he has incurred CFS as a condition secondary to his service-connected DJD of bilateral knees and/or his service-connected mood disorder. In a January 2017 statement, he described being unable to sleep due to pain, and being unable to follow conversations due to confusion from being tired. See Statement accompanying January 2017 Notice of Disagreement. However, the medical evidence does not show that the Veteran is diagnosed with CFS. Thus, the Veteran has failed to meet the criteria for the first element under Shedden, that of medical evidence of a diagnosis of the claimed disability. In addition, the Veteran has submitted no medical evidence to establish he is currently diagnosed with CFS. Being chronically fatigued (tired) is not the same as the disease of CFS. Without medical evidence establishing that the Veteran is diagnosed with CFS, service connection for CFS cannot be warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Increased Ratings Disability ratings are assigned in accordance with the VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a), 4.1. Separate DCs identify the various disabilities. See 38 U.S.C. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The evaluation of the same disability under several DCs, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under DC 5260 and a compensable limitation of extension under DC 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59,990 (2004). The basis for the opinion is that the knee has separate planes of movement, each of which is potentially compensable. Id. Arthritis manifested by limitation of motion and instability of the knee are two separate disabilities, and a Veteran may be rated separately for these symptoms. See VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Degenerative arthritis established by x-ray findings will be rated based on limitation of motion under the appropriate DC for the specific joint involved. Arthritis due to trauma substantiated by x ray findings will be rated as degenerative arthritis. See 38 C.F.R. § 4.71a, DCs 5003, 5010. Where there is painful motion of a joint that is otherwise noncompensable under the appropriate DC for the specific joint involved, a rating of 10 percent will be assigned for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 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, DCs 5003, 5010. DCs 5260 and 5261 provide the criteria for rating limitation of motion of the knee. The standard ranges of motion of the knee are zero degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion of the knee warrants a 10 percent rating if flexion is limited to 45 degrees; a 20 percent rating if flexion is limited to 30 degrees; and a 30 percent rating if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension of the knee warrants a 10 percent rating if extension is limited to 10 degrees; a 20 percent rating if flexion is limited to 15 degrees; a 30 percent rating if flexion is limited to 30 degrees; 40 percent rating if extension is limited to 30 degrees; and a 50 percent rating if flexion is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. In the present case, service connection for DJD of the left and right knees was granted by a July 2013 rating decision, and a 10 percent evaluation was assigned under DC 5010-5260 for limitation of flexion motion, otherwise noncompensable, each, respectively, effective in August 2012. In February 2014, the Veteran claimed an increase in these disability evaluations. In a July 2014 rating decision, the AOJ denied evaluations greater than 10 percent, each knee. The Veteran disagreed with this decision. In an August 2016 rating decision, separate, noncompensable evaluations were assigned under DC 5261 for limitation of extension motion to five degrees, each, respectively, effective in August 2015. The AOJ has confirmed and continued the 10 percent and noncompensable evaluations assigned under 5010-5260 and 5261, respectively, to the present. The Veteran has continued to disagree with the disability evaluations assigned. Entitlement to evaluations greater than 10 percent for DJD of the left and right knees; and to initial compensable evaluations prior to and beginning August 5, 2015 for limitation of extension motion in the left and right knees. The Veteran argues that his left and right knee disabilities are worse than evaluated. He argues that his pain has increased such that he experiences near constant pain, even without movement, and that prescribed cortisone shots in both knees, Tramadol, diclofenac, and a topical cream for pain have not alleviated his pain in the long term. In addition, he attests to limited mobility, stiffness, and that he had to leave his job in law enforcement because he could no longer meet the physical demands. He has submitted the statement of his spouse, who attested to his pain and decreased mobility. She shared her observations that he can no longer play with their child the way he used to be able to do, enjoy family gatherings and entertainment that require prolonged standing or sitting, or do yardwork because of his knee problems. She reported that even a casual touch to his knees cause pain. See July 2014 Statement of Veteran and July 2014 Lay Statement of T.C. (accompanying July 2014 Notice of Disagreement); August 2015 Statement of Veteran and August 2015 Lay Statement of J.C.; and August 2016 Substantive Appeal. There is no dispute that the Veteran has been observed to exhibit pain at rest as well as pain on motion in both knees. There is also no dispute that the Veteran’s knee pain has been relieved only partially by prescribed physical therapy, injections and other treatment, and by medications prescribed to relieve it. See, generally, CAPRI Treatment Records. However, the medical evidence does not show that the manifestations required to assigned higher evaluations for the service-connected bilateral knee disabilities are present. Entitlement to evaluations greater than 10 percent for DJD left and right knees. VA examinations and VA treatment records do not establish that the Veteran’s service-connected left and right knee disabilities are manifested by or approximate limitation of flexion at 60 degrees or less, or that his left or right knees are ankylosed. See, generally, CAPRI Treatment Records; and August 2017, August 2015, June 2014, and July 2013 VA Examinations for Knee and Lower Leg. Higher or separate evaluations could also be available under other schedular provisions, such DC 5257, which contemplates recurrent subluxation or lateral instability; DC 5258, which contemplates dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; DC 5259, which contemplates symptomatic removal of semilunar cartilage; DC 5262, which contemplates nonunion and malunion of the tibia and fibula; or DC 5263, which contemplates traumatic genu recurvatum. However, the medical evidence does not show that the required manifestations are present. VA treatment records and VA examinations do not document more than infrequent instances of effusion and swelling. Moreover, although the Veteran has been shown to evidence weakness in both knees and to require the use of assistive devices including a walker and the constant use of a cane and braces, the medical evidence does not show manifestations of dislocated asymptomatic removed cartilage, impairment of the tibia or fibula, or genu recurvatum. Moreover, VA examinations have consistently documented no findings of instability, recurrent subluxation, or of locking in either the left or right knee joint. See, generally, CAPRI Treatment Records; and August 2017, August 2015, June 2014, and July 2013 VA Examinations for Knee and Lower Leg. Thus, the preponderance of the evidence is against a finding that either the left or the right knee joint is manifested by limitation of flexion motion at or approximating 60 degrees or less, evidence of instability or recurrent subluxation, dislocated or symptomatic cartilage, impairment of the tibia or fibula, or genu recurvatum. Accordingly, evaluations greater than 10 percent and/or compensable evaluations under other applicable DCs for DJD of the left and right knee are not warranted. Entitlement to initial compensable evaluations prior to and beginning August 5, 2015, for limitation of extension motion in the left and right knees. VA examinations and VA treatment records do not establish that the Veteran’s service-connected left or right knee disability is manifested by or approximate limitation of extension at greater than 5 degrees. See, generally, CAPRI Treatment Records; and August 2017, August 2015, June 2014, and July 2013 VA Examinations for Knee and Lower Leg. Thus, the preponderance of the evidence is against a finding that either the left or the right knee joint is manifested by limitation of extension at or approximating 5 degrees or more at any time during the pendency of this appeal. Accordingly, initial compensable evaluations prior to and beginning August 5, 2015 for limitation of extension motion of the left and right knee are not warranted. The Board has considered 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995), along with the Veteran’s subjective complaints of pain, immobility, and limitation due to pain. The Board has further considered the functional effect of the Veteran’s left and right knee problems on his usual occupation and daily activities. Neither the lay nor the medical evidence shows additional disability beyond that contemplated by the currently assigned disability evaluations. The Board notes that pain alone does not constitute functional loss under VA regulations. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). REASONS FOR REMAND 1. Entitlement to TDIU, including on an extraschedular basis. The Veteran has asserted that his bilateral knee disability renders him unable to remain gainfully employed. In an August 2015 rating decision, the AOJ granted entitlement to nonservice-connected pension based, in part, on the Veteran’s bilateral knee disorders. However, since then, he has been service-connected for a mood disorder. Consideration ought therefore to be given to a claim for TDIU, including on an extraschedular basis. See Rice, supra. Initial RO consideration of this issue is required. The matters are REMANDED for the following action: 1. Take all required actions to obtain additional relevant VA treatment records, and to obtain identified private treatment records. 2. After taking all other appropriate action, adjudicate the Veteran’s claim for TDIU, including on an extraschedular basis. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L.J. Bakke, Counsel