Citation Nr: 21001616 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 10-12 696 DATE: January 11, 2021 ORDER Service connection for a blood disease affecting the right arm, to include as due to exposure to herbicide agents, is denied. An initial compensable rating prior to March 31, 2011 and a rating higher than 10 percent thereafter for right knee tendonitis is denied. A separate 10 percent rating for right knee instability is granted. A separate 20 percent rating for right knee meniscal tear effective July 9, 2010 is granted. REMANDED Service connection for a right hand disability, including Dupuytren's contracture of the right hand, to include as due to exposure to herbicide agents, is remanded. Special monthly compensation (SMC) for loss of use of the right hand is remanded. FINDINGS OF FACT 1. The Veteran does not have a right arm disability or a diagnosis of a blood disease that is etiologically related to service. 2. Prior to March 31, 2011, the Veteran’s right knee tendonitis was not manifested by painful motion; since March 31, 2011, his right knee tendonitis was manifested by painful motion not resulting in additional limitation of motion. 3. Resolving reasonable doubt in the Veteran’s favor, throughout the period on appeal, the Veteran’s right knee disability manifested by slight lateral instability. 4. Resolving reasonable doubt in the Veteran’s favor, since July 9, 2010, his right knee disability manifested by symptoms of “locking”, pain, and effusion due to dislocation of semilunar cartilage. CONCLUSIONS OF LAW 1. The criteria for service connection for a blood disease affecting the right arm, to include as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an initial compensable rating prior to March 31, 2011 and a rating higher than 10 percent thereafter for right knee tendonitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5024. 3. The criteria for a separate 10 percent rating for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.71a, DC 5257. 4. The criteria for a separate 20 percent rating for right knee meniscal tear are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1967 to August 1970 and from February 1972 to September 1980. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in October 2013. A copy of the hearing transcript is of record. This case was most recently before the Board in March 2019, at which time the issues on appeal were remanded for additional development. This case has now been returned to the Board for appellate consideration. Service Connection The Veteran contends that he has a disability that affected his right arm during service and ever since then he gets infections easily. See May 2008 Statement in Support of Claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e). It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. Blood Disease/Right Arm The Board concludes that there is no probative medical evidence indicating the Veteran has a current blood disease diagnosis or right arm disability that is etiologically related to service. Without a current disability, there can be no claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof of a present disability there can be no valid claim.”). The Veteran was afforded a VA examination in October 2019. The Veteran reported to the examiner that he does not have a problem with his right arm. Additionally, the examiner concluded that the Veteran does not have a blood disease diagnosis, or any disability affecting his right arm. The examiner noted that the Veteran had elevated iron in October 2013, however it was not a chronic disability and did not require ongoing treatment. The examiner also concluded that while the Veteran was treated in service for right upper extremity cellulitis, it was a temporary condition without any residuals. The Veteran also denied ongoing cellulitis or treatment of the right upper extremity. Range of motion testing was completed for the Veteran’s right arm, however he had full range of motion without any functional loss. The Board finds the October 2019 VA examination is adequate and highly probative as the examiner considered and addressed the Veteran’s contentions, conducted a thorough review of the record and medical examination of the Veteran, and provided clear conclusions with reasoned explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). While the Veteran contends that he gets infections easily, he testified at the October 2013 Board hearing he was not been specifically diagnosed with a blood disease. Although he has consistently asserted that he has a blood disease that affected his right arm that is related to service, he is not competent to provide a lay opinion as to the diagnosis of a blood disease or right arm disability or their etiology. The Veteran is competent to report observable medical symptoms, however the issue of diagnosing a blood disease is medically complex, as it requires knowledge of pathology. Therefore, he is not competent to self-diagnose a blood disease or attempt to present an opinion as to its etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the competent medical evidence from the VA examiner. Based on the foregoing, the Board concludes that there is no probative medical evidence indicating the Veteran has been diagnosed with a blood disease or right arm disability. Without a current disability, there can be no claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Further, the presumptive service connection provisions based on exposure herbicide agents are inapplicable because the Veteran does not have a diagnosis of any of the enumerated diseases in 38 U.S.C. §§ 3.307, 3.309. Accordingly, the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Rating The Veteran contends that a higher rating is warranted for his service-connected right knee disability. Disability evaluations 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. 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. The degree of disabilities specified are generally considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § 4.1. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). Right Knee Tendonitis The Veteran is assigned a noncompensable rating prior to March 31, 2011 and a 10 percent rating thereafter for his service-connected right knee tendonitis under DC 5024, which pertains to tenosynovitis. Diseases under this DC are to be rated on the limitation of motion of the affected parts. Limitation of flexion and extension of the knee are rated under DCs 5260 and 5261 respectively. Under these DCs, a compensable rating requires flexion limited to 45 degrees or extension limited to 10 degrees. Where an otherwise noncompensable joint disability manifests in painful motion, the Veteran is entitled to the minimum compensable rating for that joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5-6 (2011). For disabilities of the knee, a compensable rating may also be granted for ankylosis, recurrent subluxation or lateral instability, removal of symptomatic semilunar cartilage (meniscus), semilunar cartilage with frequent episodes of locking, pain, and effusion into the joints, impairment of the tibia and fibula, or genu recurvatum. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss but is just one fact to be considered when evaluating functional impairment). The Veteran was afforded VA examinations in January 2009, July 2010, March 2011, December 2016, and October 2019 for his right knee disability. Although the Veteran testified at the October 2013 Board hearing that he had painful motion prior to March 2011, the January 2009 and July 2010 VA examinations found that active and passive range of motion was 0 to 140 degrees with no objective evidence of pain on motion. Additionally, the examiners found that the Veteran did not have incapacitating flareups of right knee pain and the Veteran did not report painful motion. In March 2011, the Veteran’s flexion was limited to 135 degrees and extension was limited to 0 degrees and painful motion was noted on examination. In December 2016 and October 2019, flexion was limited to 130 degrees and extension was limited to 0 degrees. Pain was not noted on either examination, however the Veteran reported pain during flareups. The Board finds that a compensable rating prior to March 31, 2011, and a rating higher than 10 percent thereafter is not warranted based on limitation of motion under DC 5260 or DC 5261. The January 2009 and July 2010 VA examinations showed his right knee had normal range of motion, even in consideration of his objective and subjective symptomology. Though the Veteran reported pain and flareups, there is no indication that his range of motion was impacted to a compensable degree commiserate with limitation of either flexion or extension. Furthermore, there was no finding of additional functional loss due to pain, weakness, weakened movement, premature or excess fatigability or incoordination such to warrant a compensable rating pursuant to §§ 4.40 or 4.59. As such, the Veteran’s right knee disability does not warrant a compensable rating prior to March 31, 2011, or higher than 10 percent thereafter. See 38 C.F.R. § 4.71a, DCs 5260, 5261. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Right Knee Instability As part of its analysis, the Board has considered whether a separate rating under DC 5257 for recurrent subluxation or lateral instability is appropriate. A 10 percent rating is assigned when slight impairment is shown, a 20 percent rating is warranted for moderate disability, and a maximum 30 percent evaluation is warranted for severe disability. 38 C.F.R. § § 4.71a. See also Johnson v. Brown, 9 Vet. App. 7, 11 (1996) (holding that DC 5257 is not predicated on loss of range of motion). Descriptive terms such as “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The Board notes that the October 2019 VA examination noted that the Veteran does not have a history of recurrent subluxation or lateral instability. However, resolving reasonable doubt in the Veteran’s favor, the Board concludes that the evidence of record shows that the Veteran has had slight lateral instability throughout the period on appeal. The Veteran has submitted several lay statements from his friends and coworkers stating that his knee has given out on him. See e.g. December 2008 Buddy Statement. Additionally, at the January 2009 VA examination, the Veteran complained of lateral posterior knee pain, occasional popping, and episodes of his knee giving away. He also reported that he sometimes wears a knee sleeve. He did not report that he has swelling of the knee or locking. In July 2010, a VA examiner noted that the Veteran has had chronic pain in his right knee. Additionally, the Veteran reported that he normally wears a knee brace, has chronic locking of the knee, and has frequent episodes of giving way. In March 2011, the Veteran reported to a VA examiner that he experiences pain, instability, giving way, swelling, and locking. Finally, at the October 2019 VA examination, the Veteran reported that his knee will sometimes give way. Based on the foregoing, the Board finds that a separate 10 percent rating is warranted for slight lateral instability of the right knee. However, at no time during the appeal period has any of the Veteran’s physicians or VA examiners noted the Veteran to have moderate recurrent subluxation or lateral instability. Further, the Board does not find the record to contain any evidence, to include the Veteran’s lay statements, which may suggest the disability picture more nearly approximates moderate instability. As such, a rating higher than 10 percent is not warranted. Right Knee Meniscal Tear The Board has also considered whether a separate rating under DC 5258 is warranted for dislocated semilunar cartilage. DC 5258 provides that a 20 percent rating is warranted for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. The July 2010 VA examination shows that the Veteran has right knee medial and lateral meniscus tears. Additionally, the Veteran has complained of frequent pain and episodes of locking. See July 2010 VA Examination. Since the July 2010 VA examination, the Veteran has complained of swelling and his VA treatment records document small joint effusion in his right knee. See VA Treatment Records Received June 2020. Based on the foregoing, after resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has had frequent episodes of “locking,” pain, and effusion since the July 2010 VA examination. Therefore, a separate 20 percent rating is warranted pursuant to DC 5258 effective July 9, 2010. The Board has considered other potentially applicable DCs for rating the Veteran’s service-connected knee disability. However, as the record does not reflect any ankylosis (DC 5256), tibia and fibula impairment (DC 5262), or genu recurvatum (DC 5263), those DCs are not for application. In sum, a compensable rating prior to March 31, 2011, and a rating higher than 10 percent thereafter for the Veteran’s right knee disability pursuant to DC 5024 is not warranted; however, resolving reasonable doubt in the Veteran’s favor, a separate rating of 10 percent for the Veteran’s right knee instability pursuant to DC 5257, and a separate 20 percent rating for the Veteran’s right knee meniscal tear pursuant to DC 5258, are warranted. REASONS FOR REMAND Service Connection for a Right Hand Disability Although further delay is regrettable, the Board finds that remand is warranted to obtain an addendum medical opinion regarding the nature and etiology of the Veteran’s claimed right hand disability. The Veteran contends that his current right hand disability, including Dupuytren’s contracture, may have been caused by heavy lifting during service. See October 2013 Hearing Testimony. This contention has not been addressed by a VA examiner. SMC Because a decision on the remanded issue of service connection for a right hand disability could significantly impact a decision on the issue of entitlement to SMC, the issues are inextricably intertwined. A remand of the claim for SMC is required.   The matters are REMANDED for the following action: Obtain an addendum medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s right hand disability, including Dupuytren’s contracture. The claims file, including a copy of this remand, must be made available to the examiner for review. If an examination is deemed necessary by the examiner, one should be scheduled and all necessary tests and studies should be performed, and all findings reported in detail. After review of the claims file, the examiner should identify all diagnoses related to the Veteran’s claimed right hand disability. For each diagnosis, the examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right hand disability had its onset in service. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right hand disability is related to his presumed in-service herbicide agent exposure. In this regard, the examiner should note that the mere fact that a VA presumption has not been established for a particular disorder is not dispositive of the issue of nexus. (c.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right hand disability is related to his in-service treatment for cellulitis. (d.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right hand disability is otherwise related to an in-service event, disease, or injury, to include heavy lifting of ammo boxes. The examiner should consider the Veteran’s lay statements of record. A complete rationale must be provided for all opinions offered. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, 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.