Citation Nr: 18150458 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 08-31 174 DATE: November 15, 2018 ORDER Entitlement to a disability rating of 20 percent, but not higher, prior to May 4, 2009 and from July 1, 2009 to February 11, 2014, for left knee retropatellar pain syndrome is granted. Entitlement to a disability rating in excess of 10 percent prior to October 2, 2008, from December 1, 2008 to June 6, 2011, and from August 1, 2011 to February 11, 2014, for right knee sprain, patellofemoral pain syndrome is denied. Entitlement to separate disability ratings for bilateral instability of the knees from February 11, 2014 is denied. Entitlement to a 60 percent disability rating for gout of both knees is granted from February 11, 2014. Entitlement to a rating higher than 60 percent for gout of both knees is denied. Entitlement to a disability rating in excess of 10 percent for rhinosinusitis prior to August 18, 2017 is denied. FINDINGS OF FACT 1. For the period prior to May 4, 2009 and from July 1, 2009 to February 11, 2014, the Veteran’s left knee has not manifested severe instability or subluxation. 2. For the period prior to October 2, 2008, from December 1, 2008 to June 6, 2011, and from August 1, 2011 to February 11, 2014, the Veteran’s right knee has not manifested moderate instability or subluxation. 3. From February 11, 2014, the objective medical evidence shows gout in the Veteran’s knees, and that his service-connected bilateral knee symptoms more closely approximate to a disability rating for gout. 4. The Veteran’s gout has been manifested by less symptomatology than the criteria for a 100 percent rating but with or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods. 5. The preponderance of the evidence shows that for the period prior to August 18, 2017, the Veteran’s rhinosinusitis was not manifest with three or more incapacitating episodes per year requiring prolonged antibiotic treatment, or more than six non-incapacitating episodes per year characterized as headaches, pain, and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 20 percent, but not higher, for left knee instability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2018). 2. The criteria for entitlement to a disability rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2018). 3. The criteria for a rating of 60 percent, but not higher, for gout of the bilateral knees have been met from February 11, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5002, 5017 (2018). 4. The criteria for a rating in excess of 10 percent for rhinosinusitis, prior to August 18, 2017, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code 6513 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1986 to September 1995. In April 2013, the Veteran presented sworn testimony during a hearing at the RO, chaired by the undersigned. A transcript of the proceeding is of record. This case comes to the Board following three separate remands from the Court of Appeals for Veterans Claims (Court or CAVC). In the September 2014 Remand, the Court vacated and remanded a September 2013 Board decision that denied consideration of a separate rating for migraine headaches under 38 C.F.R. § 4.124(a) Diagnostic Code (DC) 8100. In the September 2016 Remand, the Court directed the Board to address the Veteran’s entitlement to higher and separate ratings for his knees under 38 C.F.R. § 4.71(a) DC 5257, and to specifically consider the Veteran’s use of assistive devices. The February 2017 Court Remand was the grant of a Joint Motion for Remand in which the parties agreed that the Board’s March 2016 decision did not adequately explain its reasons or bases for relying on an October 2015 VA examination report in its denial of the Veteran’s claim for increased rating for rhinosinusitis, and additionally, its denial of consideration of the Veteran’s headaches as a symptoms of rhinosinusitis. In order to comply with the collective CAVC Remands, the Board issued a Remand in June 2017, to obtain an adequate examination and medical opinions concerning the Veteran’s knees, rhinosinusitis, and associated headaches. The Board incorporates by reference the procedural history, decisions, and remands as described above. The requested development has been completed. No further action to ensure compliance with the Remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate Diagnostic Codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Although a disability must be considered in the context of the whole recorded history, including service treatment records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If a disability has undergone varying and distinct levels of severity throughout the claims period, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. A critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is permissible to switch diagnostic codes to reflect more accurately a claimant’s current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011). 1. Entitlement to a disability rating in excess of 10 percent for instability of the left knee 2. Entitlement to a disability rating in excess of 10 percent for instability of the right knee The June 2017 Board Remand directed the examiner to review the claims file and medical evidence to specifically address and reconcile inconsistencies between the Veteran’s assertions that he has had bilateral knee instability throughout the appeal period and the medical evidence, which did not record any objective evidence of instability or subluxation. The Board’s Remand also directed that all range of motion and other testing comply with current guidelines under Correia v. McDonald, 28 Vet. App. 158 (2016). In evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca, 8 Vet. App. 202 at 206. However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). There is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain, without objective functional loss, does not require that a higher rating be assigned. The assignment of highest rating for pain without other objective findings would lead to potentially 'absurd results'. Id. at 43. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 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, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Code, 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 Code 5003. 38 C.F.R. § 4.71a, DC 5003, 5010. Diagnostic Code 5257 addresses other impairment of the knee. Under that code, a 10 percent rating requires slight recurrent subluxation or lateral instability. A 20 percent rating requires moderate recurrent subluxation or lateral instability. A 30 percent rating requires severe recurrent subluxation or lateral instability. Words such as “slight,” “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. 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. Use of terminology such as “severe” by VA examiners and others, although 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. Diagnostic Code 5002 further provides that for chronic residuals such as limitation of motion, the disability is to be rated under the appropriate diagnostic codes for the specific joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion and the ratings for active process will not be combined with the residual ratings for limitation of motion or ankylosis; rather, the higher rating should be assigned. Under DC 5017, gout is rated under the criteria for rheumatoid arthritis at DC 5002. Pursuant to the provisions of DC 5002, a 100 percent rating is warranted when there is evidence of an active process with constitutional manifestations associated with active joint involvement that is totally incapacitating. A 60 percent rating is warranted when there is less symptomatology than the criteria for a 100 percent rating but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods. A 40 percent rating is warranted when there are symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. A 20 percent rating is warranted for one or two exacerbations a year in a well-established diagnosis. 38 C.F.R. § 4.71a, DC 5017, 5002. During the appeal period, the Veteran has been rated at 10 percent in each knee under DC 5257-5014, which is associated with “slight” lateral instability or subluxation of the knee. The Veteran also had periods of where a total rating was assigned, specifically, from May 4, 2009 to June 30, 2009 for the left knee, and from October 2, 2008 to November 30, 2008 and June 7, 2011 to July 31, 2011 for the right knee. For obvious reasons, the Board will address the periods where the Veteran was rated at 10 percent, as characterized in the above Order. In May 2015, the Veteran filed a claim for service connection for gout. Following a July 2015 VA examination confirming gout in his knees, the RO recharacterized the Veteran’s service connected knee conditions as gout of the bilateral knees as of May 8, 2015, which afforded the Veteran a more favorable rating, under DC 5017. The Court Remand found that the Board’s April 2015 decision did not adequately explain its conclusion that the Veteran was not entitled to a higher rating under DC 5257. The Veteran’s current rating of 10 percent under DC 5257-5014 correlates with “slight” subluxation or lateral instability. Under DC 5257, a higher rating requires “moderate” or “severe” recurrent subluxation or lateral instability of the knee. On VA examination in August 2017, the examiner reviewed and summarized the relevant medical evidence, including the Veteran’s consistent and credible reports of instability in his knees. The Veteran reported that he had also experienced dislocation of his knees, but had been able to manually push his patella back into place. He reported that this had occurred 5 to 6 times in his left knee and once in his right knee. The examiner noted that because the Veteran was able to self-correct his dislocations, they would most likely not be considered full dislocation. Further, the Veteran remarked that each dislocation was quite painful, and the examiner determined that this was the equivalent of a gout flare for a few weeks, without the warmth or sharp pains typical of a gout flare. It was noted that that Veteran was issued knee braces in 2009 for his instability, and he experienced a fall in 2010 for which he was seen in the Emergency Room, but no objective observation or imaging of subluxation or instability had been recorded. In reconciling the Veteran’s lay assertions of experiencing instability and subluxation with the medical reports that did not find subluxation or instability, the August 2017 examiner interpreted his “dislocations” as moderate instability or subluxation in the left knee and slight in the right knee, due to the number of dislocations and the Veteran’s ability to reduce them without medical attention. The Board accepts the Veteran’s reports of chronic pain and difficulty using stairs due to increased pain and fear of subluxation/dislocation. No objective medical evidence of instability and subluxation has been shown. The August 2017 examiner’s interpretation of the Veteran’s assertions persuasive, and finds that throughout the appeal period prior to February 11, 2014, the Veteran’s left knee subluxation was moderate, and did not rise to the level of being severe, because on the occasions that his knee “dislocated,” he was able to self-correct, and did not require medical attention. Emphasis is placed on the fact that such was determined by a medical expert utilizing a Disability Benefits Questionnaire, which was created by VA to provide accurate, competent, and probative medical findings. There are no competent medical findings that contradict that determination. It would also be improper of the Board to attempt to draw its own medical conclusions in light of the clear medical finding. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the Board finds that throughout the appeal period prior to February 11, 2014, the Veteran’s right knee subluxation was slight, and did not rise to the level of moderate because his knee only “dislocated” once, and he was able to correct this on his own without seeking medical attention. The August 2017 examiner found that the first indication that the Veteran exhibited gout in his knees was a February 2014 MRI report. Considering all evidence of record, the Board finds that because the Veteran’s knees exhibited gout in February 2014, and the above examiner found that the Veteran’s symptoms of subluxation were parallel to a gout flare-up, the date of the recharacterization of the Veteran’s knee claims should be February 11, 2014, when the Veteran was found to first exhibit gout in the knees, in order to obtain the most favorable outcome for the Veteran. Additional separate ratings for knee subluxation under DC 5257 are not appropriate where the symptoms of gout that are rated under DC 5017 are the same symptoms that were previously rated under DC 5257. See 38 C.F.R. § 4.14. Further, by recharacterizing the Veteran’s symptoms under the rating for gout, the Veteran’s symptoms correlate to a higher rating. In a September 2018 brief, the Veteran argued for a rating in excess of 60 percent for gout. The August 2017 examination discussed the Veteran’s functional loss, limitation of motion, and use of knee braces and a cane. It is worthy of note that at the time of the August 2017 examination, the Veteran felt that he was at the beginning stages of a flare-up in his knees. The Veteran uses knee braces almost continuously, however, during the peak of a flare-up he cannot wear the braces and uses a cane to ambulate. The Veteran has functional loss due to his gout symptoms, such as, walking up to 200 yards, climbing two flights of stairs, standing for more than one hour, and lifting no more than 50 pounds. During a flare-up, the Veteran reported that he can walk no more than about 15 feet, must crawl on stairs, and cannot lift more than about 5 to 10 pounds. The examiner stated that he is essentially housebound during a flare-up. The Board finds that the Veteran’s gout symptoms most closely relate to a 60 percent disability rating under DC 5017 because of his severely incapacitating exacerbations, occurring over prolonged periods. A higher rating of 100 percent is not appropriate unless there are constitutional manifestations associated with active joint involvement, totally incapacitating. While the Veteran requires assistive devices, and is incapacitated at the peak of a flare-up, his gout is not totally incapacitating in that he is normally able to walk 200 yards, climb stairs, and lift heavy objects, therefore, a higher rating is not warranted. The Board has additionally considered whether the Veteran could receive a higher rating under alternative Diagnostic Codes. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). For the entire appeal period, the Veteran did not have any diagnosis of ankylosis of the knees, and so DC 5256 is not applicable. DC 5263 is also not for application because the evidence does not indicate that the Veteran has genu recurvatum. Further, throughout the appeal period, the Veteran’s limitation of range of motion of either knee (extension and flexion) (DC 5260 and DC 5261) did not manifested to a degree that would warrant a compensable rating. Finally, the Board requested for the examiner to provide a retrospective opinion on the Veteran’s range of motion. The examiner explained that such an opinion is not entirely possible and would be based on pure speculation, as the August 2017 examiner did not observe the previous examinations. The examiner stated the measurements in previous examinations seem reasonable but as he was not there to observe, and did not have enough information otherwise to comment further. Entitlement to a disability rating in excess of 10 percent for rhinosinusitis In the JMR, the Secretary and the Veteran requested remand in order for the Board to provide explanation of the Veteran’s headaches being attributed to his rhinosinusitis and later considered a non-service related separate condition, and to provide adequate bases for the Board’s determination that the October 2015 examination of the Veteran’s rhinosinusitis was adequate, where there appear to be inaccurate findings concerning the Veteran’s complaints of headaches, and it is unclear whether the examiner considered all relevant evidence of headaches in the record prior to making the opinion. The Board’s June 2017 Remand sought a follow-up examination for the Veteran’s rhinosinusitis, in order to obtain a medical opinion concerning the current severity of his rhinosinusitis, as well as his characteristic headaches. The Board notes, that during the pendency of this appeal, in a June 2018 rating decision, the RO granted service-connected for tension headaches associated with chronic folliculitis with parietal scalp excision with a 30 percent rating from June 27, 2013. As the Veteran’s headaches have now been attributed to a separate condition, have been service-connected, and afforded a separate compensable rating, headaches will not be considered in connection to the Veteran’s rhinosinusitis. The assignment of a higher rating under sinusitis due to headaches would amount to pyramiding. Thus, to the extent that the September 2016 JMR directed the Board to address evidence concerning the Veteran’s headaches in connection with his sinus condition, the issue is now moot. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel