Citation Nr: 20021228 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 14-15 274A DATE: March 25, 2020 ORDER Entitlement to a disability rating in excess of 10 percent for right knee strain with patellar spur and ligament instability (right knee strain) is denied. Entitlement to a separate 10 percent rating for painful right knee flexion is granted effective December 6, 2010. REMANDED Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include any nerve disorder, is remanded. Entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include any nerve disorder, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT For the entire period on appeal, the Veteran’s service-connected right knee strain has been manifested by pain and limitation of motion, with flexion greater than 30 degrees and extension limited to 10 degrees or less. The disability has not resulted in moderate recurrent subluxation or lateral instability, or ankylosis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 2. The criteria for a separate 10 percent disability rating effective December 6, 2010, for painful flexion of the right knee, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1968 to April 1971, and June 1971 to June 1988, to include service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). While the issues were certified to the Board from separate appeal streams, they have been merged to ensure the most expedient resolution to the Veteran’s claims. In July 2018, the Board denied the Veteran’s service connection claims for bilateral upper and lower extremity peripheral neuropathy. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). A June 2019 Joint Motion for Partial Remand (JMR), prepared by the parties and approved by the Court, vacated and remanded the Board’s denial of the Veteran’s service connection claims for bilateral upper and lower extremity peripheral neuropathy. These issues have been returned to the Board for further action consistent with the JMR. Additionally, in July 2018, the Board remanded the Veteran’s service connection claim for sleep apnea and his claim for a disability rating in excess of 10 percent for his right knee strain to the Agency of Original Jurisdiction (AOJ) for additional development. These issues have returned to the Board for adjudication. In February 2020, the Veteran filed a VA Form 20-8940 requesting a TDIU based on all of his service-connected disabilities. This issue is properly before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating for the Right Knee 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 (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to 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). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself 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.”). Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. As no meniscal conditions are shown or service-connected, those diagnostic codes are not for application. Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of either knee. As such, those diagnostic codes are not for application. This appeal stems from a claim dated in December 6, 2010. During the period on appeal, the knee is rated 10 percent disabling under Diagnostic Code 5257 for slight instability/subluxation. The Board concludes that a separate rating for painful flexion is warranted since the date of claim. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5260. Higher ratings are not warranted. During a VA examination in July 2011, right knee range of motion was normal and repetitive use did not result in additional limitation. At the examination, the Veteran reported flare-ups as often as 3 times per week that last for an hour. He rated severity of his flare-ups as 9 out of 10, and noted that the flare-ups are precipitated by physical activity occurring spontaneously. During the flare-ups, the Veteran reports experiencing functional impairment in pain, described as difficulty standing for an extended period or walking. The Veteran’s statements do not reflect the degree of specificity as would be required to estimate range of motion during a flare-up and do not suggest limitation of motion to 30 degrees flexion or 10 degrees of extension at any point. Simply put, the report does not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher or separate rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. During examination, there was slight subluxation and instability on the right. No meniscal conditions were identified on the right. During a VA examination in July 2019, right knee range of motion was performed after repetitive use over time and was normal. While the Veteran reported mild to moderate flare-ups of pain while doing certain activities, the examiner determined that pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups. The Veteran did have painful motion. Strength and instability testing was normal, with no instability or subluxation detected. There were no meniscal conditions related to the right knee. Treatment records do not show greater limitation of motion than the examination findings. Range of right knee motion has been normal during examination. While the Veteran reported flare-ups, an examiner determined there is no additional limitation of functional ability during the flare-ups. The Veteran has reported pain associated with the disability and the July 2019 VA examiner noted painful motion. As such, a separate 10 percent rating is warranted for painful right knee flexion since the date of claim – December 6, 2010. A higher rating for limitation of flexion and a separate rating for limitation of extension are not warranted as the evidence reflects greater than 30 degrees of flexion and extension not limited to 10 degrees or greater. Regarding Diagnostic Code 5257, slight subluxation and instability of the right knee was noted during the July 2011 VA examination and no instability or subluxation was shown or reported at the July 2019 examination. There has been no showing of moderate subluxation or lateral instability to warrant a higher rating. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by medical professionals after interview of the Veteran, and in this case testing in July 2011 and July 2019 revealed slight or no instability or laxity. Given the tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are afforded high probative value. If subluxation or lateral instability were present to a moderate degree, as required for a higher rating, the Board would expect that this would have been identified at least once during the multiple tests that were performed. Moreover, in describing the instability and subluxation in 2012, the examiner determined both were slight. See 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Code 5257. The Veteran’s statements are not in significant conflict with these findings. Hence, the most probative evidence is against a higher rating for the right knee under Diagnostic Code 5257. 38 C.F.R. § 4.71a. REASONS FOR REMAND While the Board regrets further delay, the Veteran’s remaining claims must be remanded for additional development and adjudication. Nerve Disorder of the Extremities The Veteran seeks service connection for bilateral upper and lower extremities peripheral neuropathy. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that, in determining the scope of a claim, the Board must consider the Veteran’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. The Veteran filed a claim for entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy. See December 2010 Statement in Support of Claim. The Board notes that the medical evidence indicate that the Veteran may have a nerve disorder affecting his bilateral upper and lower extremities other than peripheral neuropathy. As the Veterans’ claims on appeal encompasses symptoms of bilateral upper and lower extremities causing him pain and numbness, the Board has expanded the claim to include any nerve disorder of the Veteran’s bilateral upper and lower extremities, to be consistent with the Court’s decision in Clemons. The Veteran contends that he has a diagnosis of bilateral upper and lower extremity peripheral neuropathy due to symptoms of pain and numbness caused by exposure to herbicide agents in the Republic of Vietnam. See March 2018 Correspondence; see also October 2012 VA Examination Report. The Board notes that although the current evidence of record does not indicate that the Veteran has a diagnosis of bilateral upper and lower extremity peripheral neuropathy, an additional examination and medical opinion is warranted to address the nature and etiology of the Veteran’s claimed bilateral upper and lower extremity symptoms, to include if they are due to a nerve disorder other than peripheral neuropathy. Specifically, the October 2012 VA examination noted symptoms of bilateral upper and lower extremities consisting of pain and numbness that ranges in severity. Further, the Veteran raised an argument in November 2011 that his bilateral lower extremity peripheral neuropathy was secondary to his service-connected right knee strain. See November 2011 Statement in Support of Claim. A medical examination and opinion is necessary in this case. Sleep Apnea Concerning entitlement to service connection for sleep apnea, the Veteran contends that his sleep apnea is secondary to his service-connected PTSD and cites to a medical study to support the assertion. See February 2020 Substantive Brief. A medical opinion has not been obtained on this theory of entitlement and is necessary in this case. TDIU The Veteran recently applied for a TDIU and VA obtained Social Security Administration records in order to develop the claim. This claim must be remanded so that the AOJ can complete its development and adjudicate the matter in the first instance. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to the remaining claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination for his claimed bilateral upper and lower extremity nerve disorder. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. The examiner is then asked to address: (a) All appropriate diagnoses accounting for the Veteran’s complaints of upper and lower extremity pain and numbness. If no diagnosis is rendered, the examiner should discuss why no diagnosis is rendered in light of the claimed symptomatology. (b) Whether the claimed neurological symptoms result in any functional impairment. (c) Whether it is at least as likely as not (50 percent probability or greater) that any diagnosed upper or lower extremity nerve disorder or symptoms resulting in functional impairment is related to an in-service injury, event, or disease, to include exposure to herbicide agents. (d) Whether any diagnosed upper or lower extremity nerve disorder or symptoms resulting in functional impairment is at least as likely as not (i) caused by, or (ii) aggravated by (worsened beyond natural progression) service-connected right knee strain. 3. The claims file should be sent to an appropriate examiner to address whether sleep apnea is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) the Veteran’s service-connected PTSD. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. 4. Readjudicate the claims on appeal, to include the claim for a TDIU. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.