Citation Nr: 21001232 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-27 455 DATE: January 7, 2021 ORDER Service connection for residuals of left wrist ganglion cyst is denied. A rating in excess of 10 percent for a left knee strain is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has current residuals of a left wrist ganglion cyst that began during service or is otherwise related to service. 2. The Veteran’s service connected left knee disability is manifested by chronic pain, limitation of flexion to 80 degrees at worst, with pain at 65 degrees, and limits on standing, walking, and using stairs; however, limitation of extension, ankylosis, or objective evidence of subluxation or instability has not been shown. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of removal of a left wrist ganglion cyst have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating in excess of 10 percent for left knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1969 to June 1973. In August 2019, he testified at a Travel Board hearing at the Regional Office, before the undersigned Veterans Law Judge. In August 2019, the Board remanded this matter for further evidentiary development. 1. Entitlement to service connection for left wrist ganglion cyst The Veteran contends he had a left wrist cyst that started in service, was noted in 1980 at Portsmouth Naval Hospital, and because it continued to increase in size and became more painful, it was later removed by an orthopedic surgeon, Dr. S.L., after his separation from service. He also contends that he has current residuals resulting from removal of the cyst. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records (STRs) show that in November 1969, the Veteran was treated for a recurrent dorsal ganglion cyst of the left wrist. At the August 2019 Board hearing, the Veteran testified he had no cyst prior to service, that the cyst had an onset during service in the mid-1970s, and that it kept growing and became more painful. He testified the cyst was removed after service, which alleviated the pain, and that it healed, but that he could still feel the hole where it was. He also reported decreased range of motion in the left wrist, and problems with his grip, grasp, and manipulation. VA treatment records show that the Veteran is noted to have a past surgical history of left ganglion cyst removal. However, they are silent for any complaints or treatment related to residuals stemming from the ganglion cyst or its removal. In support of his claim, the Veteran submitted an excerpt from the Mayo Clinic regarding ganglion cysts, and noted that the excerpt states it is not clear what causes a ganglion cyst to develop. After review of the record, the Board concludes the Veteran does not have a current residual disability related to the left wrist ganglion cyst noted in service, and has not had any such disability during the pendency of the claim or recent to the filing of the claim. While he has, through his pursuit of a service connection claim, reported having multiple symptoms related to the post-service removal of the cyst, there has not been competent evidence showing that any of his symptoms which he relates to the left wrist ganglion cyst have caused functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Lacking a current disability, the cornerstone element of service connection has not been met, and service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges that a VA examination was not conducted with regard to this claim. In August 2019, the Board remanded the claim for the Veteran to be scheduled for a VA examination. The record shows that the Veteran failed to RVSP for the VA examination, so it was cancelled. He also did not respond to phone calls in December 2019 made in attempt to contact him regarding why he failed to report and to reschedule him for an examination. In a September 2020 post-remand brief, the Veteran’s representative argued that VA had failed in its duty to assist by cancelling the examination request without any further documentation or explanation and not making any attempts to reschedule the examination. However, as noted above, the examination request was cancelled when the Veteran failed to RVSP for the scheduling of the examination and attempts were made to contact the Veteran by telephone to reschedule him. Therefore, the Board finds no duty to assist error in this matter. Significantly, while VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence - the duty to assist is not a one way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Because neither the representative (in the September 2020 post-remand brief) nor the Veteran have provided any specific or pertinent reasons as to why he failed to respond or RSVP for the VA examination, and because there has been no showing of good cause, another VA examination need not be scheduled and no additional assistance is required at this point to fulfill VA's duty to assist. 38 C.F.R. § 3.655. The Board also finds that its prior remand directives of 2019 have been substantially complied with, to the extent possible. 2. Entitlement to a rating in excess of 10 percent for left knee strain The Veteran contends he should be entitled to a higher rating for his service-connected left knee disability. After reviewing the record, the Board concludes that the preponderance of the evidence does not support the grant of a rating in excess of 10 percent. Disability ratings are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's service-connected right knee disability has been rated under DC 5260, which provides for a 10 percent rating when flexion of the leg is limited to 45 degrees. A 20 percent rating is for when flexion of the leg is limited to 30 degrees. A maximum 30 percent rating is for when flexion of the leg is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Further, DC 5261 provides a 10 percent rating when extension of the leg is limited to 10 degrees, a 20 percent rating when extension is limited to 15 degrees, a 30 percent rating when extension is limited to 20 degrees, and a 40 percent rating when extension is limited to 30 degrees. 38 C.F.R. § 4.71a, DC 5261. Review of the record shows that on a VA examination in October 2014, the Veteran reported chronic left knee pain, and flare-ups with prolonged walking or standing. Range of motion testing revealed left knee flexion to 90 degrees with pain at 65 degrees, extension to 0 degrees with no objective evidence of painful motion. He was able to perform repetitive-use testing with no additional loss of motion. Contributing factors of disability included less movement than normal, excess fatigability, pain on movement, and disturbance of locomotion. No tenderness was noted, muscle strength was assessed as normal. There was no joint instability shown on testing, and no evidence or history of recurrent patellar subluxation or dislocation. He regularly used a cane for his foot and knee. The examiner opined that the Veteran’s left knee disability impacted his ability to work, noting that he is unable to perform duties requiring kneeling, squatting, or crawling, that his standing and walking is limited to 50 percent during the workday, that he is unable to run, and unable to perform repetitive movements of the left lower extremity to operate controls, but was otherwise capable of active and sedentary employment. On a VA examination in September 2019, the Veteran denied flare-ups, but reported that prolonged walking caused left knee pain. Range of motion testing revealed normal left knee extension, but flexion was limited to 80 degrees, with pain, due to degenerative joint disease, age, and pain. His left knee reduced range of motion also caused difficulty negotiating stairs. He was able to perform repetitive-use testing with no additional loss of motion. The examiner noted that pain, weakness, fatigability, and lack of endurance significantly limited his functional ability with repeated use of the left knee over a period of time. Interference with standing was noted to be a contributing factor of disability. Muscle strength was limited to 3/5 on flexion and extension. There was no left knee joint instability shown on testing, and no history of recurrent subluxation, lateral instability, or effusion. He regularly used a cane for weakness in the left knee. The examiner opined that the Veteran’s left knee disability impacted his ability to perform any type of occupational task, noting he was unable to do prolonged walking and had difficulty with stairs. There was pain on passive range of left knee motion, but no pain when the knee joint was non-weight bearing. While the record shows that the Veteran has reported chronic left knee pain and flare-ups, and limitations on walking, standing, and using stairs was noted, and a VA examiner opined that pain, weakness, fatigability, and lack of endurance significantly limited the Veteran’s functional ability with repeated use of the left knee, the Board also notes that the limitation of motion findings recorded do not meet the requirements for the next higher rating under DC 5260 or DC 5261, as extension was primarily assessed as normal and flexion, while decreased, was assessed as no worse than limited to 80 degrees, with pain at 65 degrees. Moreover, it is clear that the Veteran's left knee pain and additional functional limitations were considered in the assignment of the current 10 percent rating, in the absence of compensable limitation of motion. See 38 C.F.R. § 4.59. As such, the objective evidence does not support a finding that the Veteran's left knee pain and limitation of motion with pain was associated with such additional functional limitation as to warrant increased compensation pursuant to provisions of 38 C.F.R. §§ 4.40, 4.45, or the provisions of DeLuca v. Brown, 8 Vet. App. 202, 206. The Board concludes that a higher rating is not warranted for instability or subluxation under DC 5257, because objective examinations showed no instability of the left knee joint. Further, separate ratings are not warranted under DC 5258 (dislocation of semilunar cartilage), DC 5259 (removal of semilunar cartilage), DC 5262 (impairment of the tibia and fibula) and DC 5263 (genu recurvatum) because the record does not show he has any of those conditions. Additionally, neither limitation of flexion or extension is shown to be of such a degree that a separate compensable rating is warranted under DCs 5260 or 5261. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula 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.