Citation Nr: 18155747 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 17-01 753 DATE: December 6, 2018 ORDER Service connection for right knee arthritis is granted. Service connection for right shoulder arthritis is granted. Service connection for left wrist arthritis is granted. An increased rating greater than 10 percent for left knee flexion is denied. A separate disability rating of 10 percent, but no higher, for left knee extension is granted. A separate disability rating of 20 percent, but no higher, for left knee instability is granted. REMANDED Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s right knee arthritis is proximately due to his service-connected left knee arthritis. 2. The Veteran’s right shoulder arthritis is etiologically related to his time on active service. 3. The Veteran’s left wrist arthritis is etiologically related to his time on active service. 4. The Veteran’s left knee flexion was manifested by actually painful motion. It was not manifested by limitation of flexion to 30 degrees or less. 5. The Veteran’s left knee extension was manifested by actually painful motion. It was not manifested by limitation of extension to 15 degrees or more. 6. The Veteran’s left knee was manifested by moderate instability. It was not manifested by severe instability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for right knee arthritis have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 2. The criteria to establish service connection for right shoulder arthritis have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. The criteria to establish service connection for left wrist arthritis have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 4. The criteria for an increased rating greater than 10 for left knee flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2017). 5. The criteria for a separate rating of 10 percent, but no higher, for left knee extension have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2017). 6. The criteria for a separate rating of 20 percent, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1979 to February 1983. The Veteran appeals a January 2014 rating decision by the Agency of Original Jurisdiction (AOJ) denying service connection for right knee, right shoulder, and right wrist arthritis. The rating decision also continued the Veteran’s 10 percent disability rating for left knee arthritis. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Right Knee The first and second Wallin elements are met and not in dispute. The evidentiary record contains a diagnosis of right knee arthritis. See September 2013 VA examination report. Further, the Veteran is service-connected for left knee arthritis. As such, the crux of this case centers on whether there is an etiological relationship between the Veteran’s right knee arthritis and his service-connected left knee arthritis. In a December 2015 opinion, Dr. O.E. opined that the Veteran’s right knee arthritis is at least as likely as not caused and permanently aggravated by his left knee arthritis. See December 2015 Dr. O.E. medical opinion. According to Dr. O.E., the Veteran’s heavy favoring of his service-connected left knee caused a “wearing and arthritic condition” to the right knee. Id. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds there is expert evidence of record establishing a link between the Veteran’s right knee arthritis and his service-connected left knee arthritis. Accordingly, the Board grants service connection for right knee arthritis. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Right Shoulder The first and second Shedden elements are met and not in dispute. The evidentiary record contains a diagnosis of right shoulder arthritis. See September 2013 VA examination report. In service, the Veteran fell out of a car, and VA determined the Veteran’s right shoulder injury was found to be in the line of duty for VA purposes. See September 2016 administrative decision. Further, as part of his military duties, the Veteran spent many hours on his hands and knees operating heavy pneumatic equipment used for removing paint and rust from steel. See December 2015 Dr. O.E. medical opinion. As such, the crux of this case centers on whether there is an etiological relationship between the Veteran’s right shoulder arthritis and his experiences in service. After reviewing pertinent records, Dr. O.E. opined that the Veteran’s military duties most likely caused the arthritis in his right shoulder. See December 2015 Dr. O.E. medical opinion. Similarly, a VA clinician opined that “repetitive and highly strenuous activities can trigger cause accelerated wear and tear leading to early arthritis and or more painful cases of osteoarthritis in the [right shoulder].” See August 2016 VA medical opinion. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds there is expert evidence of record establishing a link between the Veteran’s right shoulder arthritis and his experiences in service. Accordingly, the Board grants service connection for right shoulder arthritis. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Left Wrist The first and second Shedden elements are met and not in dispute. The evidentiary record contains a diagnosis of left wrist arthritis. See September 2013 VA examination report. As part of his military duties, the Veteran spent many hours on his hands and knees operating heavy pneumatic equipment used for moving paint and rust from steel. See December 2015 Dr. O.E. medical opinion. As such, the crux of this case centers on whether there is an etiological relationship between the Veteran’s left wrist arthritis and his experiences in service. After reviewing pertinent records, Dr. O.E. opined that the Veteran’s military duties most likely caused the arthritis in his left wrist. See December 2015 Dr. O.E. medical opinion. Similarly, a VA clinician opined that “repetitive and highly strenuous activities can trigger cause accelerated wear and tear leading to early arthritis and or more painful cases of osteoarthritis in the [left wrist].” See August 2016 VA medical opinion. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds there is expert evidence of record establishing a link between the Veteran’s left wrist arthritis and his experiences in service. Accordingly, the Board grants service connection for left wrist arthritis. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45 (2017). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran contends that his left knee disability is more severe than his current disability rating would indicate. He filed his claim in September 2012. Knee disabilities are rated under Diagnostic Codes 5256 through 5263 of 38 C.F.R. § 4.71a. Diagnostic Code 5256 addresses ankylosis of the knee. Diagnostic Code 5257 addresses recurrent subluxation or lateral instability. Diagnostic Code 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 addresses symptomatic residuals related to removal of semilunar cartilage. Diagnostic Code 5260 addresses limitation of motion on flexion while Diagnostic Code 5261 addresses limitation of motion on extension. Diagnostic Code 5262 addresses impairment of the tibia and fibula from malunion or nonunion. Diagnostic Code 5263 addresses genu recurvatum. 38 C.F.R. § 4.71a. A. Limitation of Motion Limitation of motion for the knee is rated under 38 C.F.R. § 4.71a under Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides ratings for limitation of flexion with the following ratings assigned: 0 percent for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and 30 percent for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Similarly, Diagnostic Code 5261 provides ratings for limitation of extension with the following ratings assigned: 10 percent for limitation of extension to 10 degrees, 20 percent for limitation of extension to 15 degrees, 30 percent for limitation of extension to 20 degrees, 40 percent for limitation of extension to 30 degrees, and 50 percent for limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal knee flexion is to 140 degrees, and normal knee extension is to 0 degrees. See 38 C.F.R. § 4.71, Plate II. When assigning a disability rating, some of the regulations preceding the rating schedule add flexibility to the listed Diagnostic Codes. 38 C.F.R. § 4.59 is one such regulation. In Petitti v. McDonald, 27 Vet. App. 415, 424 (2015), the Court of Appeals for Veterans Claims (Court) noted that § 4.59 “explain[s] how to arrive at proper evaluations under the DCs appearing in the disability rating schedule.” The provisions of § 4.59 acknowledge that a claimant’s disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Diagnostic Code. Accordingly, when there is evidence of painful motion, § 4.59 operates to provide at least the minimum compensable rating available under the Diagnostic Code for the joint. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). While § 4.59 adds flexibility to the rating schedule, it is also limited by the terms of the appropriate Diagnostic Code for the joint. Thus, if the appropriate Diagnostic Code for the joint does not provide a compensable rating, a claimant is not entitled to a minimum rating. Id. at 481 (“Section 4.59 may intend to compensate painful motion, but it does not guarantee a compensable rating”). Sowers highlights the importance of the Diagnostic Code under which the Veteran is rated because § 4.59 operates within the parameters of the Diagnostic Code. Where the record contains evidence of an actually painful, unstable, or malaligned joint or periarticular region, § 4.59 is potentially applicable. See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Here, the Veteran has exhibited painful motion of the left knee during both flexion and extension. See, e.g., May 2016 VA examination report. Therefore, he is at least entitled to a minimum disability rating under both 5260 and 5261, or 10 percent, respectively. Nevertheless, throughout the appeal period, the Veteran is not entitled to an initial disability rating greater than 10 percent under Diagnostic Code 5260 or 5261. Upon VA examination in October 2011, the Veteran’s left knee extension was normal and flexion was to 130 degrees even after repetitive use. See October 2011 VA examination report. Two years later, the Veteran’s left knee extension was also normal and flexion was to 130 degrees even after repetitive use. See September 2013 VA examination report. Recently, the Veteran’s extension was normal and flexion was to 70 degrees after repetitive use. See May 2016 VA examination report. The Board has also considered whether higher ratings are warranted based on functional loss due to pain, weakness, fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). Although the evidence does show that the Veteran may experience painful motion, it does not result in a higher rating unless it results in additional functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Here, a VA clinician determined that the Veteran’s left knee is not additionally limited by pain, weakness, lack of endurance, or incoordination after repetitive use. See October 2011 VA examination report. Thus, even considering additional functional loss, the Veteran’s left knee limitation of motion does not approximate limitation of flexion to 30 degrees or extension to 15 degrees. B. Instability Diagnostic Code 5257 provides ratings for other knee impairments with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Veteran uses a cane for ambulation, and reports using carts when in public. See November 2015 Dr. O.E. examination report. Further, the Veteran’s knee gives out, and he is unable to “perform activities of daily living such as walking, standing for more than a few minutes.” See June 2014 Dr. O.E. examination report. However, upon VA testing in October 2011, September 2013, and May 2016, VA clinicians performed joint stability testing and found no anterior, posterior, medial, or lateral instability. Nevertheless, the Court in English v. Wilkie suggested that “nothing in DC 5257 provides that objective medical evidence is required or is to be favored over lay evidence.” No. 17-2083 2018 U.S. App. Vet. Claims LEXIS 1464, at *10-11 (Nov. 1, 2018). However, as stated above, the Veteran can still stand and walk; as a result, the Board finds the Veteran has moderate instability. C. Semilunar Cartilage Diagnostic Code 5258 provides a 20 percent disability rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Similarly, Diagnostic Code 5259 provides a 10 percent disability rating for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The Veteran tore his left knee meniscus in service. See May 2016 VA examination report. However, the evidence does not show that his meniscus is currently dislocated or removed. See, e.g., May 2016 VA examination report. While Dr. O.E. stated the Veteran reported episodes of “locking” and saw effusion, he did not characterize them as frequent. See November 2015 and June 2014 Dr. O.E. examination report. Rather, the only frequent symptom attributed to the meniscus tear was joint pain. See May 2016 VA examination report. As the record does not reflect that the Veteran has dislocated semilunar cartilage with frequent episodes of joint “locking” or effusion during the appellate period, a separate rating under Diagnostic Code 5258 is not warranted. As to Diagnostic Code 5259, the record reflects that the Veteran tore his left knee meniscus over 30 years ago and symptoms include pain, limited motion, and instability. However, pursuant to the Order above, the Veteran is compensated at 10 percent each for limitation of flexion and extension, which contemplate the effect of functional loss due to pain, weakness, fatigability, or incoordination, and 20 percent for knee instability. The predicate element in assigning 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, 261-62 (1994). Assigning a separate rating under Diagnostic Code 5259 would violate the rules prohibiting pyramiding as it would compensate the Veteran twice for the same symptomatology. 38 C.F.R. § 4.14. Therefore, the Board finds that separate ratings under diagnostic codes 5258 and 5259 are not warranted. D. Other Diagnostic Codes The evidentiary record does not suggest impairment of the tibia and fibula or genu recurvatum. As such, separate disability ratings under Diagnostic Codes 5262 and 5263 are not warranted. While Dr. O.E. stated the Veteran has left knee ankylosis in June 2014 and November 2015, this is inconsistent with other evidence of record, to include VA examinations conducted on October 2011, September 2013, and May 2016. In February 2013, an MRI did not show ankylosis. See February 2013 VA treatment record. Hence, a separate rating under Diagnostic Code 5256 is not warranted. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds the evidence of record more closely approximates the criteria for a 10 percent rating under left knee limitation of flexion and extension, and a 20 percent rating, but no higher, under left knee instability. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND The Veteran has contended that he is unable to obtain or retain substantially gainful employment because of his arthritis, to include right knee arthritis. See June 2014 VA Form 21-8940. As the TDIU claim is premised at least in part on the AOJ’s assignment of a disability rating for right knee, right shoulder, and left wrist arthritis in the first instance, the issue of TDIU is inextricably intertwined with those issues. Accordingly, the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). (CONTINUED ON THE NEXT PAGE) The matter is REMANDED for the following action: After the Veteran is rated for his now service-connected right knee, right shoulder, and left wrist arthritis, readjudicate the inextricably intertwined issue of entitlement to TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative (if applicable) a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel