Citation Nr: 18147648 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-35 094 DATE: November 5, 2018 ORDER An initial rating in excess of 10 percent for a right knee disability is denied. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a back disorder is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for a uterine disability, characterized as menorrhagia with fibroids, is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a bilateral foot disorder, to include hallux valgus and plantar fasciitis, is remanded. Entitlement to service connection for an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI) pursuant to 38 U.S.C. § 1117, to include insomnia, joint pain, and headaches, is remanded. FINDINGS OF FACT 1. The Veteran’s right knee disability was characterized by pain and degenerative changes; limitation of flexion to 30 degrees, limitation of extension to 15 degrees, a combination of limitation of flexion and limitation of extension, favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees, and instability that is “mild” in nature has not been shown. 2. In a December 2012 rating decision, the claim of entitlement to service connection for a back disorder was denied because new and material had not been received since the last prior final denial. 3. The evidence added to the record since the December 2012 rating decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for a back disorder. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5260. 2. The December 2012 rating decision that denied the Veteran’s claim for entitlement to service connection for a back disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. As the evidence received subsequent to the December 2012 rating decision is new and material, the requirements to reopen the claim for a back disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1997 to September 1997, from January 2003 to April 2004, and from October 2011 to November 2012. The Board notes that while the Regional Office (RO) issued a statement of the case for entitlement to an increased rating for allergic rhinitis/sinusitis, the Veteran did not perfect her appeal with respect to this issue. As such, this issue is no longer on appeal. The Board observes that the RO received new medical treatment records that were not previously considered in its last statement of the case. However, a review of these records reveals that the vast majority of them are irrelevant, and that to the extent there are relevant records, these records were previously on file and/or are redundant and cumulative of the records already on file. As a result, there is no prejudice to the Veteran for the Board to consider these records in the first instance and a remand for the RO’s initial consideration of this evidence is not required. 38 C.F.R. § 20.1304(c). Increased Ratings The Veteran is seeking increased ratings for her service-connected right knee disability. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on 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 enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by 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. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran’s knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). Moreover, a separate rating could also be warranted under 38 C.F.R. § 4.59, based on X-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. In cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial rating in excess of 10 percent for a right knee disability In this case, the Veteran’s right knee disability has been assigned an initial rating of 10 percent for limitation of motion under 38 C.F.R. § 4.71a, DC 5260. In order to warrant a rating in excess of 10 percent based solely on limitation of motion or arthritis, the evidence must show: • Limitation of flexion to 30 degrees (20 percent under DC 5260); • Limitation of extension to 15 degrees (20 percent under DC 5261); • Limitation of flexion to 45 degrees and limitation of extension to 10 degrees (two separate 10 percent ratings under DCs 5260 and 5261, respectively); • Favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees (30 percent under DC 5256); or, • X-ray evidence of arthritis with the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations (20 percent under DC 5003). See 38 C.F.R. § 4.71a. In this case, a rating in excess of 10 percent is not warranted for the entire period on appeal. Specifically, in a May 2015 VA examination, the Veteran reported knee pain that worsened with prolonged standing while working. Her right knee range of motion was flexion to 85 degrees with painful motion starting at 10 degrees. However, while the Veteran had pain in flexion at 10 degrees, the examiner specifically determined that her pain did not cause additional functional impairment. The Veteran’s extension was to 0 degrees with no evidence of functional loss due to pain, weightbearing, or repetitive testing. There was no ankylosis or incapacitating episodes of arthritis. Further, the Board observes that while the Veteran reported worsening pain and flare-ups that “usually occur after walking and running for prolonged periods of time” at her December 2015 VA examination, the examiner was unable to test her range of motion due to pain. In the Veteran’s most recent May 2016 VA examination, her right knee symptoms and range of motion findings are most consistent with the criteria for a 10 percent rating. Of note, while the Veteran complained of increasing pain, swelling, and flare-ups that limits her activities of daily living such as climbing stairs and standing, she nevertheless exhibited flexion to 80 degrees, that was limited to 70 degrees by pain, and further limited to 60 degrees during flare-ups. She also had 0 degrees of extension with no additional functional limitations due to pain, weight-bearing, repetitive use, or flare-ups. Additionally, there was no evidence of ankylosis or incapacitating episodes of arthritis The Veteran’s VA treatment records, including from May 2014 and May 2015, do not report any additional limitation of motion or incapacitating episodes of arthritis that would warrant a higher rating. Therefore, based on the evidence of record, the Board determines that a rating in excess of 10 percent based upon limitation of motion is not warranted. The Board also considered whether a higher disability evaluation is warranted on the basis of functional loss due to fatigability, incoordination, pain on movement, pain on weight-bearing, flare-ups, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Sharp v. Shinseki, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 206-07 (1995). In this case, the Veteran has complained that she is limited in performing activities of daily living due to pain, weakness, and flare-ups. However, while the Veteran experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and her complaints are adequately contemplated in the ratings she currently receives. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Of note, the May 2015, December 2015, and May 2016 VA examiners did not find any evidence of additional loss of motion or functioning after repetitive testing, flare-ups, and/or weight bearing that would warrant a higher rating. Next, the Board considers whether a separate compensable rating is warranted for the Veteran’s right knee disability based on instability or cartilage symptoms. In order to warrant a compensable rating based on knee instability or cartilage symptoms, the evidence must show: • Dislocation of the semilunar cartilage with frequent episodes of “locking,” pain and effusion in the joint (20 percent under DC 5258); • Recurrent subluxation or lateral instability (under DC 5257; 10 percent for “slight” symptoms); • Symptomatic symptoms due to the removal of the semilunar cartilage (10 percent under 5258); or, • Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight bearing objectively demonstrated) (10 percent under 5263). See 38 C.F.R. § 4.71a Based on the evidence, the Board determines that a separate compensable rating is not warranted based on instability or cartilage symptoms in her right knee. Specifically, during a VA examination in May 2014, while the Veteran reported right knee pain, swelling, and weakness, the examiner determined there were no signs of instability, subluxation, dislocation, malalignment, and locking in the right knee. Further, while the Veteran had a previous diagnosis of “probable degeneration signal of the posterior horn medial meniscus,” the examiner indicated that the Veteran’s right knee ligaments and meniscuses were all within normal limits. In a December 2015 VA examination, the Veteran did not exhibit instability or cartilage symptoms to a compensable degree. In arriving at this conclusion, the Board acknowledges that that while the VA examiner noted that Veteran had “severe instability” in her right knee, he specifically stated that he was unable to perform joint testing. Therefore, considering that the overwhelming contemporaneous objective medical evidence does not reflect instability to a compensable degree, the Board finds that this finding is not supported by the medical evidence, and instead appears to be based primarily on the Veteran’s assertions – which are of limited probative value. Further, the Board also notes that while the Veteran had evidence of a current or prior meniscal injury, there was no evidence of its removal. Additionally, while the Veteran reported frequent episodes of joint pain, there was no evidence of dislocation or subluxation. As such, the examination findings on balance are not sufficient to warrant a compensable rating. Moreover, the Veteran’s May 2016 VA examination does not reflect right knee symptoms or findings for which a compensable rating is warranted based upon instability or cartilage symptoms. In this case, while the Veteran was not able to complete the joint stability testing due severe pain with movement, there was otherwise not sufficient evidence of instability and/or injury to the cartilage in the right knee that would warrant a compensable rating. Moreover, the Veteran’s history of shin splints, as well as her subjective reports of swelling, pain, and weakness are not, without any supporting medical evidence, sufficient to demonstrate instability to a compensable degree. Therefore, a separate rating in excess of 10 percent for right knee dislocation, instability, or cartilage injury is not warranted. Additionally, the Board notes that there is no evidence that the Veteran’s right knee disorder causes impairment to the tibia and fibula that would warrant a separate compensable rating. In considering the appropriate disability rating, the Board has also considered the statements from the Veteran that her right knee and hearing loss disabilities are worse than the ratings she currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms, such as pain, limitation of motion, and instability, because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability of her service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s service-connected disorders have been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of her relevant symptoms related to the issues on appeal, including limitations with activities of daily living, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Court of Appeals for Veterans Claims has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155 (a) (2001) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the Veteran is entitled to TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the Veteran is gainfully employed and thus, TDIU is not raised by the record. New and Material Evidence 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a back disorder In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as evidence not previously submitted to agency decision-makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). In this case the Veteran is claiming entitlement to service connection for a back disorder. The Veteran’s claim was previously denied by the RO in December 2012 on the basis that that new and material evidence was not added to the record since the last prior final denial. She did not appeal this decision, nor did she submit any new and material evidence within a year of receiving the decision. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of the claim. After a review of the evidence submitted since December 2012 rating decision became final, the Board determines that the claim should be reopened. The evidence now includes new medical evidence, including new medical treatment records, which raises the possibility that her back disorder is related to her active duty service. Not only is this evidence “new” in that it was not of record prior to the last final denial of the claims, it is also “material,” as it relates to an unestablished fact necessary to support the claim. Namely, it shows that there may be a nexus between this disorder and the Veteran’s active duty service. Therefore, the claim should be reopened on this basis. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for a uterine disability, characterized as menorrhagia with fibroids, is remanded. The Veteran was afforded a VA examination in November 2017 to assess the nature and etiology of her sexual arousal disorder. However, the examiner also specifically addressed and discussed symptoms related to the current severity of her uterine disorder. Moreover, the RO received numerous relevant VA treatment records since June 2016. Nevertheless, this evidence was not considered by the RO in its most recent statement of the case. Therefore, a remand is required in order for the RO to consider the evidence and for the issuance of an appropriate supplemental statement of the case (SSOC). See 38 C.F.R. § 20.1304(c). 2. Entitlement to service connection for a back disorder is remanded. The Veteran has submitted new and material evidence, including new medical records, which indicates she has a diagnosis of back disorder that may be related to active service. However, since this claim was not considered on its merits, it must be remanded for that purpose. See Hickson v. Shinseki, 23 Vet. App. 394 (2010) (“When the Board reopens a claim after the AOJ has denied reopening that same claim, the matter generally must be returned to the AOJ for consideration of the merits.”). Therefore, a remand is required in order for the RO to consider the evidence and for the issuance of an appropriate supplemental statement of the case (SSOC). See 38 C.F.R. § 20.1304(c). 3. Entitlement to service connection for a bilateral foot disorder, to include hallux valgus and plantar fasciitis, is remanded. The Board notes that the Veteran’s service treatment records, including from August 2012 and September 2012, reflect that she had symptoms of a foot disorder during service. Further, while the June 2014 VA examiner was not requested to provide an etiological opinion regarding her bilateral foot disorder, the examination report nevertheless reflects that her symptoms may have started in service. Therefore, as the post-service evidence indicates that her current bilateral foot disorder may be etiologically related to service, a VA examination to determine the nature, severity, and etiology of this disorder is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection for an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI) pursuant to 38 U.S.C. § 1117, to include insomnia, joint pain, and headaches, is remanded. The Board notes that the Veteran was afforded VA examinations in June 2014 (with a corresponding September 2015 addendum) and May 2017 to determine if the Veteran had any symptoms of an undiagnosed illness or MUCMI. However, while the examiners opined that the Veteran did not have an undiagnosed illness or MUCMI, the examiners failed to address of discuss the etiology of the Veteran’s symptoms of joint pain, muscle pain, insomnia, and headaches. Instead, the examiners only determined that the Veteran did not have fibromyalgia or chronic fatigue syndrome, and did not discuss if these were symptoms of a disorder contemplated by 38 U.S.C. § 1117. Therefore, the examinations are inadequate to adjudicate this issue, and a new examination is warranted. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: 1. Obtain all treatment records that are available from the VA Medical Center in Jackson, Mississippi, as well as from any VA facility from which the Veteran has received treatment since June 2017. If the Veteran has received additional private treatment, she should be afforded an appropriate opportunity to submit the medical records of such treatment 2. Schedule the Veteran for a VA examination to determine the nature, extent, onset and etiology of her bilateral foot disorder. Additionally, schedule the Veteran for a VA examination to determine the nature and etiology of her insomnia, muscle pain, joint pain, and headaches. The examiner should acknowledge review of the claims file, including this remand, to become familiar with the relevant medical history of the preceding aliments. The examiner should conduct all tests and studies deemed appropriate. The examiner is asked to review the pertinent evidence, including the Veteran’s lay assertions regarding the history of her symptomatology, and undertake any indicated studies. Then, the examiner is asked to provide an expert medical opinion on each of the following questions: (a) Please state whether the Veteran’s symptoms are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such conditions, when did that condition resolve? (b) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of her service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? (c) If any of the above symptoms are not attributable to a known clinical diagnosis, then is the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. In rendering an opinion, the examiner must discuss the Veteran's reports of headaches, muscle pain, joint pain, and sleep disturbances since service. Specifically, the examiner must discuss the Veteran’s assertion that these symptoms are indicative of an undiagnosed illness.   3. The AOJ should undertake any additional action it deems necessary in order to properly adjudicate the claims on appeal. If the claims are not fully granted, a SSOC should be issued, and the claims file should be returned to the Board for further appellate consideration. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel