Citation Nr: 18160789 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 17-08 778 DATE: December 27, 2018 ORDER The application to reopen the claim for entitlement to service connection for a left knee disability is denied. Entitlement to an evaluation in excess of 10 percent for right knee limitation of flexion is denied. FINDINGS OF FACT 1. In a January 2003 final decision, the Regional Office (RO) denied service connection for a left knee disability based on a lack of evidence of a current disability or a nexus to his service-connected right knee disability. 2. Since the January 2003 decision, the Veteran has submitted cumulative and redundant statements asserting a relationship between his left knee and his right knee; he has not submitted medical evidence of nexus or evidence of a current left knee disability. 3. The Veteran manifested no less than 75 degrees of flexion of the right knee on objective testing, and painful motion on examination. CONCLUSIONS OF LAW 1. The January 2003 decision denying service connection for left knee disability is final; evidence received since this decision is cumulative and redundant and the claim is not reopened. 38 U.S.C. §§ 5108, 7103, 7104, 7105(c) (2002); 38 C.F.R. §§ 3.156; 20.1100, 20.1103 (2018). 2. The criteria for an evaluation in excess of 10 percent for right knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.159, 3.321, 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1998 to January 2002. 1. The application to reopen the claim for entitlement to service connection for a left knee disability is denied. The Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010); see also Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of reopening a claim, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). In January 2003 decision, the RO denied service connection for a left knee disability and this decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156; 20.1103 (2018). In the January 2003 decision, the RO found the Veteran did not manifest a left knee disability based on findings from a December 2002 VA examination. The Veteran filed an application to reopen the claim in July 2015. Evidence submitted since the January 2003 decision includes a VA examination, VA treatment records, and the Veteran’s lay statements. The new evidence received in support of the claim to reopen does not show that the Veteran has a diagnosed left knee disability. The medical records do not reflect any treatment or a diagnosis concerning left knee disability. The Veteran underwent a VA examination in July 2017. The examiner found the Veteran did not manifest pain on passive or non-weight bearing testing of the left knee. He had the full range of motion with no functional loss after three repetitions. See July 2017 VA Examination. There was no objective evidence of pain with weight bearing and the examiner did not make a diagnosis of a left knee disability. The Board finds that the evidence received since the January 2003 decision does not raise a reasonable possibility of substantiating the claim. To the extent that the Veteran contends he has a left knee disability that is related to service-connected disability, the Board observes that these contentions were previously before VA at the time of the prior final decision. The reiteration of these contentions has not added any details that raise the totality of the evidence to the point where it indicates that service connection may be warranted. See Shade v. Shinseki, 24 Vet. App. 110, 123-24 (2010) (Lance, J., concurring) (“[R]eopening the claim only to deny it without providing assistance would be a hollow, technical decision. There is no reason to expend agency resources on a semantic determination that is not tied to a meaningful procedural duty.”). Accordingly, this cumulative contention is not new and material. In sum, the Board finds that new and material evidence has not been received to reopen the Veteran’s previously denied claim for service connection for a left knee disability and the application to reopen this claim must be denied. See 38 C.F.R. § 3.156(a). 2. Entitlement to an evaluation in excess of 10 percent for right knee limitation of flexion is denied. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If two ratings are potentially applicable, the higher rating is assigned if the disability more nearly approximates the criteria required for it. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2018). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2018). A musculoskeletal disability involves the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2018). Functional loss in the form of limitation of motion may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion, or weakness. 38 C.F.R. §§ 4.40, 4.59 (2018). It also may be due to excess fatigability or incoordination. 38 C.F.R. § 4.45 (2018). An increased rating for functional loss, to include during flare ups, due to those factors accordingly may be assigned under Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran’s right knee disability is currently evaluated under DC 5010-5260. The hyphenated diagnostic code in this case indicates that the knee disability is service-connected under DC 5010 for arthritis due to trauma and under DC 5260 for limitation of flexion. Under Diagnostic Code 5260, a noncompensable rating is assigned for flexion of the leg limited to 60 degrees. A 10 percent rating is assigned for flexion of the leg limited to 45 degrees. A 20 percent rating is assigned for flexion of the leg limited to 30 degrees. A 30 percent rating is assigned for flexion of the leg limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2018). Normal range of motion for the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2018). With regard to the right knee, disability at no time during the period on appeal has the Veteran demonstrated such symptomatology that a rating higher than 10 percent for loss of flexion under DC 5260 is warranted. The Board notes that the 10 percent rating assigned under 5260 was awarded based upon evidence of painful motion of the left knee. The Board has considered whether a rating higher than 10 percent is warranted based upon limitation of motion under DC 5260; however, the preponderance of the evidence demonstrates that the Veteran’s range of motion on flexion is limited to no less than 120 degrees. At the worst, the Veteran had flexion to 130 degrees with functional loss due to pain on repetitive testing at 120 degrees, as shown at the July 2017 VA Examination. See July 2017 VA Examination. Such range of motion is not supportive of a disability rating in excess of 10 percent. The Board finds that the Veteran is competent and credible as to report to the symptoms that he is experiencing. In the Veteran’s most recent VA examinations a goniometer was used in the measurement of limitation of motion, as is standard practice in VA examinations measuring limitation of motion. 38 C.F.R. § 4.46 (2018). As such, the Board will assign more weight to the examiners’ findings. In regard to the Veteran’s assertions regarding his knee disability, the Board finds the evidence of record and VA examinations do not show instability of his knee or recurrent subluxation or recurrent dislocation, limitation of motion approximating 30 degrees of flexion, limitation of extension supportive of a higher rating, or a combination of flare-ups, pain on weight-bearing, fatigability, or loss of range of motion on repetitive testing that approximates the next higher evaluation. See DeLuca, 8 Vet. App. at 207; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, a rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5261. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against a higher rating, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018); Gilbert, 1 Vet. App. at 56. (Continued on the next page)   The Board is grateful for the Veteran’s honorable service, and this decision in no way detracts from the Veteran’s service. Unfortunately, however, for the reasons and bases discussed above, the competent and probative evidence of record preponderates against the claims and they cannot be granted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Trickey