Citation Nr: 21003365 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 19-28 260 DATE: January 21, 2021 ORDER A compensable rating for limitation of extension of the right knee is denied. Service connection for a neck disorder is denied. FINDINGS OF FACT 1. The Veteran had active service from September 1992 to December 1995. 2. Limitation of extension of the right knee has been manifested by subjective complaints of pain and difficulty walking; objective findings include extension to no more than 5 degrees without competent evidence of ankylosis or frequent episodes of locking or effusion. 3. A current neck disorder, diagnosed as degenerative disc disease (DDD) and degenerative joint disease (DJD), was not shown in service and is not causally or etiologically related to service; degenerative arthritis was not shown to a compensable degree within one year of service and symptoms were not continuous since service. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for limitation of extension of the right knee have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5256, 5258, 5259, 5261 (2020). 2. A neck disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come before the Board of Veterans’ Appeals (Board) on appeal of a November 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In pertinent part, the November 2018 rating decision denied service connection for a neck disorder and granted service connection for right knee patellofemoral syndrome with an initial 10 percent rating. The Veteran filed a notice of disagreement with the neck disorder denial in December 2018 and with the right knee rating in March 2019. In July 2019, the RO issued a rating decision granting two additional, separate ratings for the right knee: 0 percent for limitation of extension and 10 percent for instability. All three ratings for the right knee were then addressed in a July 2019 statement of the case (SOC). However, in the September 2019 VA Form 9 perfecting his right knee appeal, the Veteran limited his appeal to the rating for limitation of extension of the right knee only, as reflected on the title page. He perfected his appeal of the neck disorder claim in October 2019 in response to an August 2019 SOC. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran is currently assigned a noncompensable (0 percent) rating under DC 5261 for limitation of extension of the right leg. A noncompensable rating contemplates extension limited to up to 5 degrees. He contends that he is entitled to a higher rating due to pain, difficulty walking, and popping in the knee. The Veteran limited his appeal to limitation of extension; nevertheless, as separate ratings may be assigned to different manifestations of knee disabilities, the Board will consider all remaining relevant diagnostic codes. The aspects not on appeal are rated as follows: right knee patellofemoral syndrome under DC 5260 (for limitation of flexion) and right knee instability under DC 5257 (for recurrent subluxation or lateral instability). Thus, to warrant a higher rating, the evidence must show: • ankylosis of the knee in a favorable angle in full extension or on slight flexion between 0 degrees and 10 degrees (30% under DC 5256); • ankylosis of the knee in flexion between 10 degrees and 20 degrees (40% under DC 5256); • symptomatic removal of the semilunar cartilage (10% under DC 5259) • extension limited to 10 degrees (10% under DC 5261); • dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint (20% under DC 5258). Turning to the medical evidence, in a November 2018 VA examination, the Veteran described his right knee as painful when squatting and giving way when walking. When asked about flare-ups, the Veteran reported flare-ups of the right knee as causing “giving way” when going down stairs. He also indicated that he has pain when going up stairs with repeated use. The examiner measured right knee range of motion from 120 degrees flexion to 0 degrees extension. There were no clinical findings of ankylosis, or frequent episodes of locking or effusion noted. In a July 2019 VA examination, the Veteran reported daily cracking and popping of the right knee with increased pain over time. He described sharp pain that had turned dull over the past four or five days. He continued to describe giving way of the knee on stairs and further indicated that he could not squat, kneel, or navigate hills, but he denied flare-ups. Range of motion testing revealed flexion to 135 degrees and extension to 5 degrees. The examiner found no additional loss of function with repetition at the examination. Additional loss of range of a motion to 125 degrees flexion was documented with repeated use over time due to pain and weakness, but the examiner indicated no additional loss of extension. The examiner noted no ankylosis, frequent episodes of locking, or recurrent joint effusion. An X-ray revealed a “small joint effusion.” Next, in a December 2019 VA examination, the Veteran described pain going up and down stairs and being unable to crawl. He denied flare-ups. Range of motion testing revealed right knee flexion to 110 degrees and extension to 5 degrees. There was no additional loss of motion with repetition. The examiner found no ankylosis and documented no episodes of locking or effusion in the right knee. A review of clinical records reflects ongoing treatment for right knee pain but does not reveal clinical findings more severe than those found at VA examinations. As such, the medical evidence does not support a compensable rating for limitation of extension of the right knee. Specifically, an increased rating for extension requires range of motion to 10 degrees extension or more, which was not found at any time during the appeal period. Further, the right knee did not exhibit ankylosis, and frequent episodes of locking and/or effusion were not documented. Finally, the Veteran has not had surgery on the right knee to suggest a rating for symptomatic removal of semilunar cartilage was warranted. Accordingly, the Board finds that the right knee range of motion does not more closely approximate the criteria for a rating in excess of 10 percent for limitation of extension or for an additional separate rating for ankylosis, locking, or effusion. The Veteran challenged the findings of the November 2018 and July 2019 VA examiners based on the adequacy of the range of motion testing. In his September 2019 VA Form 9, he argued that a goniometer was not used to measure range of motion in the previous knee examinations. However, the Board has reviewed the examinations and find that they are adequate for rating purposes. Specifically, both the November 2018 and July 2019 VA examiners reported use of a goniometer, and other than the Veteran’s assertion, the evidence does not contradict the examination reports. For this reason, the Board finds that the examination was adequate, despite assertions to the contrary. The Board has also considered the Veteran’s lay statements that his disability is worse. He has specifically argued that a rating of 10 percent is warranted because of locking of the knee. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s right knee disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as discussed above, he did not report locking at his VA examinations or in treatment notes, and locking was not documented clinically. The incidences of “giving way” are contemplated by the rating for instability, which is not on appeal. Further, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. Service Connection Claim Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Turning to the medical evidence, an August 2019 VA examiner noted a diagnosis of cervical DDD and DJD. As such, a current neck disorder has been shown and the first element of service connection is met. As to in-service incurrence, the Veteran contends that he had a neck injury in 1995 during service when he was drug by a parachute and that he was treated for his neck at the same time as his service-connected back injury. However, service treatment records (STRs) are absent any complaints of, or treatment for, a neck injury. Further, the October 1995 separation examination did not indicate that a neck injury was incurred during service. Had the Veteran experienced a neck injury and symptoms in service, the Board would expect he would have reported such injury and symptoms as he did his back and knee problems, for example. As such, the service records do not support the in-service incurrence of a neck injury, and the second element of service connection is not met. Accordingly, while the Veteran has a current diagnosis, as the element of in-service incurrence is not met, service connection may not be granted. Thus, service connection for a neck disorder on a direct basis is denied. Next, as degenerative arthritis of the cervical spine is considered a chronic disease under 38 C.F.R. § 3.309(a), presumptive service connection will be considered. Nevertheless, while the Veteran’s active service ended in 1995, the record does not show any evidence of degenerative changes to the cervical spine until 2019. As such, degenerative arthritis did not manifest to a compensable degree in service or within the one-year presumptive period. Additionally, continuity of symptomatology has not been established. Although the Veteran contends that he has experienced neck pain since 1995, the medical evidence shows that he did not begin receiving treatment until 2016. Further, radiology reports did not reveal evidence of degenerative arthritis until 2019, nearly 25 years after separation from service. Therefore, the medical evidence does not support continuity of symptomatology. Accordingly, service connection on a presumptive basis is also not warranted. The Board has considered the Veteran’s lay statements that his disorder was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). K. M. SCHAEFER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kokolas, 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.