Citation Nr: 18152012 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 11-22 894 DATE: November 21, 2018 ORDER Entitlement to an evaluation in excess of 10 percent for posterior instability due to right tibia tendonitis with patellar tendonitis, previously rated as bilateral shin splints, is denied. Entitlement to an evaluation in excess of 10 percent for limitation of flexion due to right tibia tendonitis with patellar tendonitis, previously rated as bilateral shin splint, is denied. Entitlement to an evaluation in excess of 10 percent for left tibia tendonitis with patellar tendonitis, previously rated as bilateral shin splints, is denied. FINDING OF FACT The Veteran’s posterior instability due to right tibia tendonitis with patellar tendonitis, right tibia tendonitis with patellar tendonitis, and left tibia tendonitis with patellar tendonitis, which were previously rated as bilateral shin splints, are collectively best characterized, at worst, by degenerative or traumatic arthritis of both knees established by X-ray findings, painful motion of both knees, and posterior instability of the right knee. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 10 percent for posterior instability due to right tibia tendonitis with patellar tendonitis, previously rated as bilateral shin splints, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.59, 4.71a, Diagnostic Codes (Codes) 5003, 5010, 5256-5263. 2. The criteria for entitlement to an evaluation in excess of 10 percent for limitation of flexion due to right tibia tendonitis with patellar tendonitis, previously rated as bilateral shin splints, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.59, 4.71a, Diagnostic Codes (Codes) 5003, 5010, 5256-5263. 3. The criteria for entitlement to an evaluation in excess of 10 percent for left tibia tendonitis with patellar tendonitis, previously rated as bilateral shin splints, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.59, 4.71a, Diagnostic Codes (Codes) 5003, 5010, 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to December 1994. Increased Rating The Veteran claims entitlement to increased ratings for his service-connected posterior instability due to right tibia tendonitis with patellar tendonitis, right tibia tendonitis with patellar tendonitis, and left tibia tendonitis with patellar tendonitis. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. Separate diagnostic codes (Codes) identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Court has also held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, when evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011). Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows that the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. Id. at 37. In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss. Id. at 36. In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (i.e., noncompensable) under the applicable diagnostic code (Code). The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with Code 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable diagnostic code pertaining to range of motion simply because pain is present throughout the range of motion. Moreover, where the Code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996); Johnston, 10 Vet. App. at 84-85. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The assignment of a particular Code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532 (1993). One Code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Furthermore, the selection of Codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation payments. See 38 C.F.R. §§ 3.951, 3.957; Butts, 5 Vet. App. 532. Finally, the rating of the same manifestation under different diagnoses, a practice known as “pyramiding,” is to be avoided. 38 C.F.R. § 4.14. In this case, the Veteran’s posterior instability due to right tibia tendonitis with patellar tendonitis is currently rated as 10 percent disabling under Code 5003-5257; his limitation of flexion due to right tibia tendonitis with patellar tendonitis is currently rated as 10 percent disabling under Code 5003-5260; and his left tibia tendonitis with patellar tendonitis is currently rated as 10 percent disabling under Code 5003-5260. However, lower leg, shin, or knee-related disabilities may be evaluated under several different Codes. A 10 percent rating is available for degenerative arthritis established by X-ray findings under 38 C.F.R. § 4.71a, Code 5003 based on limitation of motion under the appropriate 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 diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by the limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations shall be rated as 20 percent disabling, and involvement of two or more major joints or two or more minor joint groups without occasional incapacitating exacerbations shall be rated as 10 percent disabling. The 20 percent and 10 percent ratings based on X-ray findings without limitation of motion will not be combined with ratings based on limitation of motion. The knee is considered a major joint. 38 C.F.R. § 4.45(f). Normal range of motion of the knee is to 140 degrees flexion and to 0 degrees extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is evaluated under Codes 5260 and 5261. Pursuant to 38 C.F.R. § 4.71a, Code 5260, a 10 percent evaluation is warranted when flexion is limited to 45 degrees. A 20 percent evaluation is warranted when flexion is limited to 30 degrees. The highest 30 percent evaluation is warranted when flexion is limited to 15 degrees. Pursuant to 38 C.F.R. § 4.71a, Code 5261, a 10 percent evaluation is warranted when extension is limited to 10 degrees. Even higher ratings are warranted for greater degrees of limitation of extension. Under Code 5257, a 10 percent rating is assigned when lateral instability or recurrent subluxation is slight, while a 20 percent rating is assigned it is moderate and a 30 percent rating is assigned if it is severe. 38 C.F.R. § 4.71a, Code 5257. The Veteran, his spouse, supervisor and two coworkers have collectively stated, orally and in writing, that the Veteran experiences a great amount of pain and some tenderness in his shins which prevents him from standing, walking or running for extended periods of time, including at work, at home, and elsewhere. See, e.g., lay statements received in December 2009; Transcript of Hearing Before Board of Veterans’ Appeals (Board) dated in August 2012. However, the Board notes that the Veteran, his spouse, supervisor and coworkers are not competent to opine on whether the severity of the Veteran’s service-connected bilateral shin splints and/or right and left tibia tendonitis with patellar tendonitis (shin conditions) is such that he is entitled to an increased evaluation. In other words, they are not competent to opine on whether the Veteran’s shin conditions are characterized by or cause the conditions or symptomatology mentioned in the relevant diagnostic codes. See 38 C.F.R. § 4.71a, Codes 5256-5263, 5310-5312. None of those individuals have indicated that they possess the education, training, experience or other such credentials necessary to competently opine on matters of such a medically complex nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran’s VA and private medical treatment records reflect that he has complained of a significant level of constant shin pain. However, those records do not contain enough details to give an indication of whether the Veteran is entitled to an increased evaluation for his shin conditions. Considering the above, the Board finds that the most pertinent pieces of evidence relating to this appeal are the relevant VA examination reports and opinions, from December 2009, October 2014, April 2017 and October 2017. The October 2014 opinion indicates that, at that time, the Veteran had posterior instability of his right knee, manifested by a 1+ result of posterior drawer testing, along with radiographic evidence of degenerative or traumatic arthritis in both knees. No instability was shown on the left. According to the October 2017 opinion, the knee conditions/symptoms are related to the Veteran’s service-connected shin conditions. Those opinions, together with the other aforementioned evidence, reflect that the Veteran’s service-connected shin conditions cause him to experience painful motion of his knee which affects his coordination and endurance. Based upon those findings, the Veteran is entitled to a 10 percent evaluation for each knee, given his documented arthritis and painful motion of his knees, along with a 10 percent evaluation for his slight posterior instability of his right knee. See, e.g., 38 C.F.R. § 4.71a, Codes 5003, 5010, 5257. However, the examination findings also indicate that there is no objective evidence of ankylosis or recurrent subluxation of either knee, dislocation or removal of the semilunar cartilage of either knee, lateral instability or recurrent subluxation of the right knee that is more than slight in degree, lateral instability or recurrent subluxation of the left knee, limitation of flexion of either knee to 30 degrees or less, limitation of extension of either knee to 10 degrees or more, impairment of the tibia and fibula, or genu recurvatum. Indeed, the limitation of motion of both knees has consistently been so minimally limited as to not support a compensable evaluation under Codes 5260 and 5261, viewed alone. Therefore, the Veteran is not entitled to any additional ratings or increased evaluations under Codes 5256-5263. The Board has also considered whether the Veteran is entitled to an increased evaluation under 38 C.F.R. § 4.73, Codes 5310-5312, concerning muscle injuries; however, the claims file does not contain any evidence that the Veteran suffers from any of the conditions or symptoms that are noted therein, at all, much less to a moderate-or-worse degree of severity. Because there is an absence of any evidence of any such conditions at a compensable degree of severity, the Board finds that the Veteran is not entitled to an increased evaluation under those Codes. The Board notes that it reaches the above determinations despite the fact that the Veteran, his spouse, his supervisor and coworkers have credibly contended that he suffers from a great deal of pain in his lower legs and knees, and despite the fact that the VA examiners have noted additional symptomatology such as crepitus and popping in the right knee and that the Veteran uses assistive devices at least occasionally. See, e.g., Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) dated in October 2014. To be clear, that evidence does not change the Board’s determinations because such symptomatology does not give rise to an increased evaluation under the relevant and aforementioned Codes. In short, the claims must be denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notably, the evidence and contentions of record do not suggest that the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has been raised in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Banks, Associate Counsel