Citation Nr: 20004258 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 19-06 286 DATE: January 17, 2020 ORDER A disability rating in excess of 20 percent for left knee osteoarthritis is denied. A compensable rating for left knee scars is denied. A disability rating in excess of 20 percent for hypertension is denied. FINDINGS OF FACT 1. The Veteran’s left knee disability has not been productive of ankylosis, dislocation or removal of the semilunar cartilage, recurrent subluxation or lateral instability, flexion limited to 15 degrees or less, extension limited to 20 degrees or more, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. 2. The Veteran’s left knee scars are not unstable or painful and have not measured an area of 144 square inches (929 sq. cm.) or greater. 3. The Veteran’s hypertension has not been productive of diastolic blood pressure readings predominantly 120 or more. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for left knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5263. 2. The criteria for a compensable disability rating for left knee scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Codes 7800-7805. 3. The criteria for a disability rating in excess of 20 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1988 through September 1997. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Higher rating for left knee osteoarthritis The Veteran’s left knee osteoarthritis is currently assigned a 20 percent rating under Diagnostic Code 5261. The Veteran seeks a higher rating. In his Form 9, he reported that his meniscus caused flare ups with knee swelling, and that he could not walk when his knee swelled. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Under 38 C.F.R. § 4.71a, DC 5256, ankylosis at a favorable angle in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent rating; ankylosis with flexion between 10 degrees and 20 degrees warrants a 40 rating; ankylosis with flexion between 20 degrees and 45 degrees warrants a 50 rating; and extremely unfavorable ankylosis (flexion at an angle of 45 degrees or more) warrants a 60 percent rating. Under 38 C.F.R. § 4.71a, DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling. Moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling. And, severe recurrent subluxation or lateral instability warrants a 30 percent rating. The terms “mild,” “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. The use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of 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 (2014). Under 38 C.F.R. § 4.71a, DC 5258, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent rating. Under 38 C.F.R. § 4.71a, DC 5259, removal of the semilunar cartilage when symptomatic warrants a 10 percent rating. Under 38 C.F.R. § 4.71a, DC 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. Under 38 C.F.R. § 4.71a, DC 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order. If extension of the knee is limited to 15 degrees a 20 percent rating is in order. If extension of the knee is limited to 20 degrees a 30 percent rating is in order. If extension of the knee is limited to 30 degrees a 40 percent rating is in order. If extension of the knee is limited to 45 degrees a 50 percent rating is in order. Full range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), that Court held that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have “separate and distinct manifestations” from the same injury, permitting separate disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. In this regard, VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disorder includes both a compensable limitation of flexion under DC 5260, and a compensable limitation of extension under DC 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id. VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disorder includes both arthritis and instability, provided of course, that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97 (July 1, 1997). The Board notes, however, that the Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). In the present case, the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 20 percent for left knee osteoarthritis. The Veteran was afforded a VA examination in January 2018. The Veteran reported that he experienced left knee pain all the time and that cold weather, sitting, walking, squatting, standing, load-bearing, stairs, and stepping the wrong way resulted in left knee pain rated at 9 out of 10. He reported that his left knee flared every day. On examination, the examiner recorded left knee flexion to 120 degrees and extension to 15. The examiner noted there was no additional functional or range of motion loss after three repetitions. It was noted there was no ankylosis of the left side, and that there was no history of recurrent subluxation or lateral instability and no joint instability. The Veteran was afforded a VA examination in November 2018. The Veteran reported that he experienced flare-up symptoms such as sharp pain and swelling every two-to-three months. The flare-ups lasted for up to a few days and he could only tolerate weight-bearing pain for a few minutes during flare-ups. On examination, the examiner recorded left knee flexion to 120 degrees and extension to 0 degrees. The examiner noted there was no additional loss of function or range of motion after three repetitions and that pain, weakness, fatigability or incoordination would significantly limit functional ability with repeated use over a period of time. The examiner opined that during such an event the Veteran’s flexion would be 20 degrees and his extension would be 0 degrees. The examiner opined that during a flare up the Veteran’s flexion would be 120 degrees and his extension would be 0 degrees. No ankylosis was noted, and there was no joint instability. It was noted the Veteran did not have a meniscus condition. The examiner noted that there was not objective evidence of pain on non-weight bearing. The Veteran was afforded a VA examination in March 2019. On examination, the examiner recorded left knee flexion to 120 degrees and extension to 0 degrees. No loss of function or range of motion after three repetitions was noted. The examiner opined that pain, weakness, fatigability or incoordination would not significantly limit functional ability with repeated use over a period of time. It was further opined that pain, weakness, fatigability or incoordination would not significantly limit functional ability with flare-ups. No ankylosis was noted. It was noted there was no history of recurrent subluxation, or lateral instability and no instability was noted on testing. It was noted the Veteran did not have a meniscus condition. There was no objective evidence of pain on non-weight bearing or passive range of motion testing. As to a higher a rating under DC 5256 for ankylosis, while the range of motion of the left knee was restricted at the VA examinations, the record on appeal never shows it being ankylosed. In fact, multiple examiners specifically stated there was no ankylosis. The examiners statements that there was no ankylosis is not contradicted by any other medical opinion of record. In the absence of ankylosis, the Board may not rate his service-connected knee disability as ankylosis. See Johnston v. Brown, 10 Vet. App. 80 (1997). Consequently, a higher rating is not warranted for the Veteran’s left knee disorder under DC 5256. See 38 C.F.R. § 4.71a; Hart, supra; Fenderson, supra. The Board has considered whether a rating is warranted based upon recurrent subluxation or lateral instability under DC 5257. However, multiple examiners noted there was no subluxation or lateral instability of the left knee. There is no evidence in the record to contradict these statements. Evidence of recurrent subluxation or lateral instability is not present in the record; therefore, a separate rating under DC 5257 is not warranted. As to a rating under DC 5260, the Board finds that even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as DeLuca, Mitchell, Burton, Correia, and Sharp, the Veteran’s functional losses do not equate to the criteria required for a separate compensable rating. A rating of 10 percent would require flexion limited to 45 degrees. In January 2018, the Veteran’s left knee flexion was to 120 degrees. See also November 2018 and March 2019 VA examination reports. There is no evidence in the record to suggest that left knee flexion was more limited than during the VA examinations. Further, the examiners did not indicate an additional loss of range of motion would result due to a flare up. Because flexion of the knees is not limited to at least 45 degrees and the ranges of motion on examination that did not meet that criteria are not contradicted by any other medical evidence of record, a higher, or separate, compensable rating, is not warranted under DC 5260. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; VAOPGCPREC 9-2004; Hart, supra; Fenderson, supra. As to a higher, under DC 5261, the Board finds that even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as DeLuca, Mitchell, Burton, Correia, and Sharp, the Veteran’s functional losses do not equate to the criteria required for a rating in excess of 20 percent, because extension of the knees is not limited to at more than 15 degrees. The November 2018 and March 2019 examination revealed extension of 0 degrees. The January 2018 showed extension to 15 degrees. None of these examinations demonstrate extension at, near, or worse, than 20 degrees. The evidence does not otherwise show that that the Veteran’s left knee extension was worse than 15 degrees at any point during the appeal period. The examiners did not indicate that an additional loss of range of motion would be expected during a flare up. Because the record does not demonstrate extension limited to 20 degrees, or more severe, a rating in excess of 20 percent for limitation of left knee extension under DC 5261 is not warranted. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; VAOPGCPREC 9-2004; Hart, supra; Fenderson, supra. As to a higher rating under DC 5258 for dislocated semilunar cartilage, the Board notes that the record on appeal is negative for this adverse symptomatology. None of the VA examination indicated the presence of this symptomology and the record does not suggest the presence of such. In the absence of this adverse symptomatology, the Board will not rate his service-connected left knee disorder under DC Code 5258 or DC 5262. See Butts, supra. Lastly, as to a higher rating under DC 5259 for removal of the semilunar cartilage when symptomatic and/or under DC 5263 for Genu recurvatum, the Board notes that the disability rating already assigned the Veteran’s service-connected left knee disorder exceeds the maximum rating possible under these code sections at all times during the pendency of the appeal. See 38 C.F.R. § 4.71a. Therefore, an increased rating, or a separate rating, must be denied. See 38 C.F.R. § 4.71a; Hart, supra; Fenderson, supra. The Veteran is competent to report the symptoms that he is experiencing, including pain and flare-ups of his left knee disability. With respect to the Veteran’s assertions regarding his knee disability, the Board finds the evidence of record and VA examinations do not demonstrate evidence to warrant a higher, or separate rating, as discussed above. Nor does the evidence suggest 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). In January 2018, the Veteran reported daily flare ups, and in November 2018, he reported flare ups every 2-3 months. The November 2018 and March 2019 examiners specifically addressed functional ability during flare-ups, as well as pain on weight bearing and fatigability. The associated opinions do not suggest a loss of function during such events to warrant a separate, or higher rating. The Veteran reported that his meniscus is depleted; however, the examiners indicated that no meniscus condition was present. Therefore, a higher rating, or a separate rating, based on the Veteran’s statements is not warranted as the competent evidence of record is against the Veteran’s claim. 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 for the left knee disability, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The claim must, therefore, be denied. 2. Higher rating for left knee scars The Veteran’s left knee scars are currently rated at zero percent. He seeks a higher rating. The Veteran is currently assigned a noncompensable rating for his residual surgical scars of the left knee pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805. Under Code 7805, scars are rated based on any disabling effects not considered under Diagnostic Codes 7800-7804. Diagnostic Code 7800 pertains to scars of the head, face, or neck. As the Veteran’s scar is located on his left lower extremity, Diagnostic Code 7800 is not applicable. Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear and cover an area or areas of at least 6 square (sq.) inches (39 sq. centimeters (cm.), but less than 12 sq. inches (77 sq. cm.); with higher ratings assigned for scars covering larger areas. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear, affecting an area, or areas, of 144 sq. inches (929 sq. cm.) or greater. Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful, and a maximum 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. There are three general notes associated with 38 C.F.R. § 4.118, Diagnostic Code 7804. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) states that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) indicates that scars evaluated under diagnostic codes 7800, 7801, 7802, and 7805 may also receive an evaluation under this diagnostic code, when applicable. In this case, the Veteran was afforded a knee VA examination in January 2018. The examiner noted there was no objective evidence that any of the Veteran’s scars are painful, unstable, have a total area equal to or greater than 39 square cm; or are located on the head, face or neck. It was noted the Veteran had scars on his left knee measuring 23 x 1 cm and 9 x 1 cm. The Veteran was afforded a scars/disfigurement examination in October 2018. It was noted that none of the scars of the trunk or extremities were painful. The left knee scars were measured at 26.5 x 2 cm, and 8 x 1 cm. The examiner noted the Veteran’s scars of the left lower extremity without underlying tissue damage resulted in an approximate committed total area of 61 cm2. The Veteran was afforded a scars/disfigurement examination in November 2018. It was noted none of the scars of the trunk or extremities were painful. The left knee scars were measured at 10.5 x 1.2 cm, and 23 x 1.2 cm. The examiner noted the Veteran’s left lower extremity scars, without underlying tissue damage, resulted in an approximate total area of 39.6 cm2. The Veteran was afforded a muscle injuries examination in March 2019. The examiner noted there was no objective evidence that any of the Veteran’s scars are painful, unstable, have a total area equal to or greater than 39 square cms; or are located on the head, face or neck. It was noted the Veteran had scars on his left knee measuring 27.5 x 2.5 cm and 8 x 1.9 cm. The Veteran was afforded a scars/disfigurement examination in March 2019. It was noted that none of the scars of the trunk or extremities were painful. The left knee scars were measured at 27.5 x 2.5 cm, and 8 x 1.9 cm. The examiner noted that the Veteran’s left lower extremity scars, without underlying tissue damage, resulted in an approximate total area of 83.95 cm2. The Veteran was afforded a muscle injuries examination in October 2019. The examiner noted there was no objective evidence that any of the Veteran’s scars are painful, unstable, have a total area equal to or greater than 39 square cms; or are located on the head, face or neck. It was noted the Veteran had scars on his left knee measuring 23 x 1.5 cm and 8 x 1 cm. Based on the foregoing, the Board finds that a compensable evaluation is not warranted for the Veteran’s scars of the left lower extremity. In this regard, the evidence indicates that the Veteran has two scars located on his left lower extremity. No disabling effects have been identified or attributed to scars, and the Veteran has not contended otherwise. As such, the Board cannot find that a compensable rating is warranted for the Veteran’s scar under Diagnostic Code 7805. The Board has also considered the applicability of other diagnostic codes for rating this disability, but finds that no other diagnostic code provides a basis for a compensable rating. Diagnostic Code 7800 is inapplicable as that code pertains to scars of the head, face, or neck. Diagnostic Code 7801 is inapplicable as that code pertains to scars that are associated with underlying soft tissue damage and multiple examinations did not show the presence of underlying soft tissue damage. Therefore, a compensable rating is not warranted under Diagnostic Codes 7800-7801. Under Diagnostic Code 7802, an area, or areas, of 144 square inches (929 sq. cm.) or greater is required. Although the measurements have varied at times, none of the multiple measurements have approached 929 sq. cm. Therefore, a compensable rating is not warranted under Diagnostic Codes 7802. Finally, Diagnostic Code 7804 does not apply as the scars have not been shown to be painful or unstable. See 38 C.F.R. § 4.118. For these reasons, the Board finds that the preponderance of the evidence is against a finding that an initial compensable evaluation is warranted for the Veteran’s scar of the left lower extremity. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 3. Higher rating for hypertension The Veteran is currently assigned a disability rating of 20 percent under Diagnostic Code 7101 for his hypertension. 38 C.F.R. § 4.104. He seeks a higher rating. Under that diagnostic code, a 40 percent rating is warranted for diastolic pressure predominantly 120 or more. Diastolic pressure predominantly 130 or more is rated 60 percent disabling. Id. Turning to the evidence of record, the preponderance of evidence is against the Veteran’s claim for a disability rating in excess of 20 percent for hypertension. The record contains numerous blood pressure readings. There are multiple diastolic readings above 120. For example, April 2018 VA treatment records show 7 home blood pressure readings above 120 for diastolic pressure out of 11 readings taken. Home readings in September 2018 show one diastolic reading above 120 out of the 10 readings taken. A September 2018 VA treatment record shows a diastolic reading of 123. November 2018 readings show a diastolic pressure of 125. August 2019 readings show that the Veteran was admitted for syncopal episodes and that he had two diastolic readings above 120 out of ten readings taken over the two-day admission period. It was also noted at that time that the Veteran has a history of being admitted for resistant hypertension with uncontrolled hypertension. November 2019 VA treatment records show a diastolic reading of 139. Although the record shows multiple blood pressure readings above 120, and even some 130, a higher rating is not warranted because the rating criteria for a higher rating requires the diastolic pressure to predominantly be at 120 or more. The evidence weighs against such manifestations. Although there are readings above 120, they are not predominantly above 120. For example, in April 2018, some of the Veteran’s home blood pressure readings were above 120. In particular, on April 12, 2018, his home diastolic pressure reading was measured 133. VA treatment records on the same day show that his diastolic pressure was 92. On April 23, 2018, his home reading for diastolic pressure was 125. VA treatment records a week later showed that his diastolic pressure was 83. VA treatment records shortly thereafter, in June 2018, indicate that it was suspected that the home blood pressure cuff may be too small, which may have resulted in falsely-elevated home readings. Although April 2019 home diastolic readings were higher than 120, the clinical readings were much lower, and a clinician specifically questioned the reliability of the home readings. Therefore, a higher rating solely based on home blood pressure data, and for that period, is not warranted. For the rest of the period on appeal, there are times the Veteran’s blood pressure was above 120, but not predominantly so. For example, VA treatment records in September 2018 show that the Veteran was sent to urgent care due to blood pressure of 204/134. Several days later, it was noted that his blood pressure cuff at home was too small, and that his blood pressure was still elevated at 149/101 and the Veteran reported his blood pressure had been in the 180s/102 range. This shows that a pressure above 120 was not the predominant feature of the period. Also, in September 2018, the Veteran’s home blood pressure log showed only one diastolic above 120, out of the 10 recording readings. In late August 2018, VA treatment records show that the Veteran’s diastolic pressure was 86. In November 2018, the Veteran presented to the emergency room for knee pain and had several diastolic readings with the maximum being 141. However, after medication, it dropped to 116. In January 2019, his diastolic pressure was 87. Several days later, it was recorded at 83, and several days after that, it was 84. In early March 2019, diastolic pressure was 83. In late March 2019, it was noted that the Veteran’s blood pressure was much better controlled at home than in the past and in the clinic his diastolic pressure was 102. In April 2019, it was 89, and in May 2019, it was 86. In early August 2019, it was 93. In late August 2019, the Veteran was admitted for syncopal episodes and over a two-day period, he had two diastolic blood pressure readings above 120, out of 12 readings recorded. In early September 2019, his diastolic pressure was 67. Thus, there is evidence of diastolic pressure above 120. However, the diastolic pressure is not predominantly at 120 or above. Further some of the readings above 120 are not reliable as the record suggests the Veteran’s blood pressure cuff may have been too small. For these reasons, the Board finds that the preponderance of the evidence is against a finding for disability rating greater than 20 percent for hypertension. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.