Citation Nr: 20054841 Decision Date: 08/19/20 Archive Date: 08/19/20 DOCKET NO. 15-17 635 DATE: August 19, 2020 ORDER Entitlement to service connection for bilateral carpal tunnel syndrome is granted. Entitlement to an evaluation in excess of 10 percent for residuals of left knee arthroscopy is denied. Entitlement to an evaluation of 10 percent, but not more, for left knee instability. FINDINGS OF FACT 1. The Veteran’s bilateral carpal tunnel syndrome began during active service. 2. The Veteran’s left knee disability manifests as pain on motion and non-compensable loss in her range of motion on flexion of the left knee for the entire period on appeal. 3. The Veteran’s left knee disability manifested as slight instability. CONCLUSIONS OF LAW 1. The criteria for service connection for carpal tunnel syndrome are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 3. The criteria for a 10 percent rating, but not more, have been met for slight instability in the left knee. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 2005 to August 2006. The Veteran testified before the undersigned Veterans Law Judge in a May 2018 videoconference hearing. A transcript of that hearing is of record. In October 2018, the Board of Veterans’ Appeals (the Board) remanded the Veteran’s appeal to the Agency of Original Jurisdiction (AOJ) to afford her a VA examination regarding the nature and etiology of carpal tunnel syndrome and the current severity of her service-connected left knee disability. The Veteran received those examinations in August 2019. She does not contend that either is inadequate to adjudicate her claims, and her appeal is once again before the Board. 1. Entitlement to Service Connection for Bilateral Carpal Tunnel Syndrome The Veteran contends that she is entitled to service connection for bilateral carpal tunnel syndrome. She testified in May 2018 that her duties during active service involved quite a bit of typing, and her wrists were weak during active service. The Board concludes that the Veteran has a current diagnosis of bilateral carpal tunnel syndrome, and the probative evidence of record shows that carpal tunnel syndrome onset during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(d). A January 2018 electromyography (EMG) study confirmed a diagnosis of bilateral carpal tunnel syndrome. In a July 2019 VA examination, an examiner concluded that the Veteran’s carpal tunnel syndrome onset during active service. He reasoned that the Veteran did not have a history of carpal tunnel syndrome prior to active service, and he read the January 2003 service treatment records describing numbness in the Veteran’s hands as documenting the onset of carpal tunnel syndrome during active service. The examiner also reasoned that the Veteran’s complaints regarding her bilateral wrists were consistent with complications associated with the involvement of her cervical intervertebral disk syndrome, or IVDS, and degenerative joint disease. Thus, the elements of service connection are met, and the Veteran’s claim for service connection for carpal tunnel syndrome is granted. 2. Entitlement to an Evaluation in Excess of 10 Percent for Residuals of Left Knee Arthroscopy The Veteran contends that she is entitled to a higher rating because of increased pain and a feeling of instability in the left knee. The Veteran’s service-connected left knee is evaluated under 38 C.F.R. §§ 4.59 and 4.71a, Diagnostic Code 5003-5160 for non-compensable limitation of flexion with pain on motion. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. 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; 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the service-connected left knee disability. The Veteran has received two VA examinations during the period on appeal, and neither shows limited range of motion on flexion of sufficient severity to warrant an evaluation in excess of 10 percent. An October 2015 VA examination showed flexion from 0 degrees to 130 degrees. Objective evidence of pain was present with weightbearing, and the Veteran’s left knee was tender to palpation. The Veteran was examined after repetitive use, and there was no evidence of additional loss in her range of motion due to that repetitive use. The Veteran did not report flare-ups. The Veteran had normal strength on flexion and extension, and no atrophy was present on examination. The Veteran’s left knee was not ankylosed. A July 2019 VA examination showed full range of motion on flexion from 0 degrees to 140 degrees. No pain was noted on examination. The Veteran was able to perform repetitive use testing without any additional loss in her range of motion. Moreover, pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time, and the Veteran did not report flare-ups. Other medical evidence of record does not support a rating in excess of 10 percent under Diagnostic Code 5260. The Veterans post-service treatment records do not demonstrate that her range of motion on flexion is limited to 30 degrees or less. February 2018 VA treatment records document reports of worsening left knee pain; however, it does not note any reduction in the Veteran’s range of motion on flexion. Thus, the evidence of record does not support a rating in excess of 10 percent for painful motion on flexion with non-compensable loss in her range of motion. In light of the foregoing, the preponderance of the evidence weighs against the Veterans’ claim for a rating in excess of 10 percent pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260. The evidence shows range of motion flexion, at its worst, from 0 to 130 degrees, that is accompanied by objective evidence of pain on motion. This accords with her current 10 percent rating. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5260. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). In considering other diagnostic codes, the Board acknowledges the Veteran’s reports of instability in her left knee. Under Diagnostic Code 5257 a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Severe” means very painful or harmful or of a great degree. In her May 2018 hearing testimony, the Veteran reported that her left knee “gave out” on her “once or twice.” The Veteran is a nurse, which adds probative weight to her reports of instability. VA treatment records accord with her hearing testimony. February 23, 2018 VA treatment records document worsening knee pain and her interest in receiving gel injections in her left knee. She received those gel injections on April 30, 2018. She testified in May 2018 that the injections resolved the instability. Thus, even though the VA examinations noted normal stability testing on examination, the Board will resolve reasonable doubt in the Veteran’s favor and assign a 10 percent evaluation for slight instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257; English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). A rating in excess of 10 percent under Diagnostic Code 5257 is not warranted, however. In February 2018, the Veteran denied any clicking, locking, or buckling in her left knee. Moreover, her hearing testimony described one or two events where her left knee gave out. Given the infrequency of the instability, the resolution of the instability with the gel injections in April 2018, and the normal stability examinations in May 2015 and August 2019, the Board concludes that her symptoms most closely approximate a 10 percent rating for slight instability rather than a 20 percent rating for moderate instability. See 38 C.F.R. §§ 4.6, 4.7, 4.71a, Diagnostic Code 5257. Turning to the remaining diagnostic codes related to the knee, the Board concludes that ratings thereunder are not warranted here. A rating under Diagnostic Code 5261 for limited motion on extension is not warranted. The May 2015 and August 2019 VA examinations show full range of motion on extension, no reports of flare-ups, and no additional functional loss with repetitive use over time. To the extent the Veteran has painful motion on flexion, of her left knee, it is embraced by her current 10 percent evaluation for painful motion under 38 C.F.R. §§ 4.59 and 4.71a, Diagnostic Code 5260. Applicable laws and regulations prohibit a second rating for painful motion. See 38 C.F.R. § 4.14. Evaluations under Diagnostic Codes 5256, 5258, 5262, and 5263 are not warranted. Her left knee is not ankylosed per the May 2015 and August 2019 VA examinations. The Veteran underwent removal of semilunar cartilage from her left knee during active service, and the residuals of that in-service procedure are evaluated under Diagnostic Code 5260. Thus, applicable laws and regulations foreclosing evaluations for duplicative symptomatology foreclose evaluations under Diagnostic Codes 5258 and 5259. Moreover, February 2018 VA treatment records document her denials of clicking or locking in her left knee due to meniscal injuries. Finally, the record does not show impairment of the tibia and fibula or genu recurvatum, foreclosing evaluations under diagnostic codes 5262 and 5263 respectively. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, 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.