Citation Nr: 18152492 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 13-22 348 DATE: November 23, 2018 ORDER Entitlement to service connection for a gallbladder disorder is denied. Entitlement to an initial increase rating exceeding 10 percent for left knee degenerative patellofemoral changes (“left knee disability”), is denied. FINDINGS OF FACT 1. The evidence of record does not indicate that the Veteran has a current gallbladder disability for VA purposes. 2. The Veteran’s left knee disability does not manifest to flexion limited to 45 degrees, or limited to 30 degrees, or limited to 15 degrees or instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a gallbladder disorder have not been met. 38 U.S.C. §§ 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to an initial increase rating exceeding 10 percent for left knee degenerative patellofemoral changes have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.71a, Diagnostic Code (DC) 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to May 1980 and from November 1980 to November 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2017, the Board remanded these claims for additional development. The Board finds that there has been substantial compliance with its June 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a gallbladder disorder The Veteran contends that she has a current gallbladder disorder related to her military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). After a review of the record, the Boards find the Veteran does not have a current disability for VA purposes. Service treatment records (STRs) reveal no complaints, treatments, or diagnosis of the gallbladder until January 1984, when the Veteran was seen for an apparent passing of a gallstone. Subsequently, on the same day in January 1984, the Veteran received a gallbladder X-ray that revealed no evidence of gallstones, and a normal gallbladder exam. In February 1984, the Veteran was diagnosed with G.I. spasm rule out gallstones. In August 2017, the Veteran was afforded a Gallbladder C&P Examination. The examiner noted that the Veteran does not currently have nor has she ever been diagnosed with a gallbladder condition. Within that examination, the Veteran stated that she has similar problems to date after years from separation of the military. However, while the Board has considered the Veteran’s statement, a review of the entire record does not reflect the Veteran has been treated for any gallbladder disorders and/or issues since service. Additionally, even though her STRs reflect that she was treated once for a possible passing of a gallstone, this isolated incident was not confirmed to be a gallstone; and, to date, the record does not show any diagnosis of the claimed disability. Rather, the more recent evidence, which considers the entire record, reflects that she has never been diagnosed with a gallbladder disorder. In the absence of a confirmed diagnosis of a gallbladder disorder, either during or post service, service connection for that disability cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the Board finds that the preponderance of the competent evidence is against the claim, and service connection for a gallbladder disorder is denied. 2. Entitlement to an initial increased rating exceeding 10 percent for left knee degenerative patellofemoral changes Disability ratings are determined by applying the criteria set forth in the schedule of ratings. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran’s disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as “pyramiding” is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where the Veteran challenges the initial rating of a disability for which they have been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See generally Fenderson v. West, 12 Vet. App. 119 (1999). However, whether the issue is an initial increase or not, consideration of the appropriateness of a “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Accordingly, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Id. 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. When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by painful motion with joints. The joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell, 25 Vet. App. at 37-38; see 38 C.F.R. §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. §§ 4.40 and 4.45 includes less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. See generally Mitchell, 25 Vet. App. 32 Moreover, the Board must consider functional loss caused by pain or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range-of-motion testing. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, despite the relevance of the background factors delineated in § 4.40 or 4.45 when evaluating a disability, the rating to be assigned is based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); therefore, a separate or higher rating predicated solely on §§ 4.40 or 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or § 4.73] criteria.”). The Veteran is currently rated as 10 percent disabled under DC 5260, which governs limitation of leg flexion. Under DC 5260, a 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees, with the highest percent of 30 assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. STRs are silent for any treatment and/or symptoms regarding the left knee/leg. VA treatment records from May 2011 to September 2017 reveal the Veteran has complained of constant left knee pain, which by the Veteran’s account originated in 1977. In a May 2011 VA examination, the Veteran reported experiencing pain, stiffness, weakness, decreased speed of joint motion, and flare-ups; however, no arthritis or ankylosis. The Veteran’s range of motion for her left flexion was 0 to 110 degrees, with objective evidence of pain with active motion. In an August 2017 VA examination, the Veteran claimed to have increased pain in both knees. The Veteran reported flare-ups of the knee, as increased pain and stiffness; however, no functional loss and/or impairment. The left knee revealed abnormal range of motion, with a flexion of 0 to 125 degrees and extension of 0 to 130 degrees. There was pain noted on the exam, but it did not result in and/or cause functional loss. No evidence of pain with weight-bearing, no objective evidence of localized tenderness, no pain, weakness, fatigability or incoordination significantly limiting functional ability, and no ankylosis. The left knee reflected a slight reduction in muscle strength, with results showing a 4 out of 5 for flexion; however, the left knee showed no instability. There was no evidence of pain on passive range of motion, and no evidence of pain when the joint is used in nonweight-bearing. However, diagnostic testing did reveal degenerative arthritis in the left knee. After review of the record, and after considering the provisions of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, the Board finds that an initial rating exceeding 10 percent is not warranted for the Veteran’s left knee disability. VA treatment and examination records during the pendency of the appeal, show that the Veteran’s left knee disability consistently manifested painful flexion; however, it did not give rise to flexion limited to 30 degrees or 15 degrees, as warranted for an increased rating. Additionally, there is no conflicting, compelling medical evidence of record offered by the Veteran or her representative in support of a higher rating under DC 5260. Thus, a rating exceeding 10 percent is not warranted. The Board has considered whether separate or increased ratings may be assigned under other diagnostic codes for the appeal period; however, the record does not reflect ankylosis under DC 5256, leg extension limitation ranging from 15 degrees to 45 degrees under 5261, and the X-ray evidence regarding the Veteran’s arthritis does not involve 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations under DC 5003. Accordingly, the Board finds the preponderance of the evidence is against an assignment of an initial rating exceeding 10 percent for left knee disability, and the claim is denied. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. 5107 and 38 C.F.R. § 3.102, but does not find that the   evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991) M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Hodges, Associate Counsel