Citation Nr: 21004018 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 14-24 809A DATE: January 25, 2021 ORDER Entitlement to service connection for a skin condition, other than right leg folliculitis, is denied. Entitlement to an initial increased rating of 10 percent, but no higher, for left knee patellofemoral syndrome is granted. Entitlement to an initial compensable rating for left knee limitation of extension prior to October 16, 2018 is denied. Entitlement to an increased rating greater than 10 percent for left knee limitation of extension from October 16, 2018 is denied. Entitlement to a separate initial rating of 20 percent, but no higher, for left knee instability is granted. The 20 percent rating for left knee patellofemoral syndrome under Diagnostic Code 5258-5257 from October 16, 2018 is discontinued. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence weighs against a finding that a current skin condition, other than right leg folliculitis, is attributable to service. 2. The Veteran’s left knee exhibited painful, decreased range of motion but was not manifested by limitation of flexion to 45 degrees or less. 3. Prior to October 16, 2018, the Veteran’s left knee was not manifested by limitation of extension to 10 degrees or more. 4. From October 16, 2018, the Veteran’s left knee was manifested by limitation of extension to 10 degrees or more; it was not manifested by limitation of extension to 15 degrees or more. 5. Throughout the appeal period, the Veteran’s left knee was manifested by moderate instability. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for an initial disability rating of 10 percent, but no higher, for left knee patellofemoral syndrome have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.655, 4.1, 4.3, 4.7, 4.71a, 20.608, 20.704, Diagnostic Code 5260 (2020). 3. The criteria for a compensable disability rating for left knee limitation of extension prior to October 16, 2018 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2020). 4. The criteria for a disability rating greater than 10 percent for left knee limitation of extension from October 16, 2018 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2020). 5. The criteria for a separate initial disability rating of 20 percent, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020). 6. The criteria to discontinue the 20 percent disability rating for left knee patellofemoral syndrome from October 16, 2018 under Diagnostic Code 5258-5257 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258-5257, 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to March 2011. He appeals an April 2012 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for a skin condition, other than right leg folliculitis, and a compensable initial rating for left knee patellofemoral syndrome. In May 2018, the Board of Veterans’ Appeals (Board) remanded the claims for additional development; however, the Veteran did not attend his scheduled VA examinations. In May 2019, the Board found the Veteran provided good cause for missing his examinations and remanded once more to provide examinations. During the appeal, the AOJ increased the Veteran’s disability rating for left knee patellofemoral syndrome to 10 percent and awarded a separate rating for dislocated semilunar cartilage ratable at 20 percent, both effective October 16, 2018. See March 2019 rating decision. The claims are now back before the Board. Service Connection A Veteran is entitled to VA disability compensation if there is a current disability resulting from personal injury or disease incurred in, or aggravated by, active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called “nexus” requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran is already service connected for right leg folliculitis. See March 2019 rating decision codesheet. In December 2010, a VA examiner noted no evidence of current dermatophytosis tinea corporis, or tinea pedis despite the Veteran’s statements and service treatment records (STRs) reflecting a history of these conditions. See December 2010 VA examination report. In September 2016, a VA examiner also noted no current rash or skin condition upon examination other than his already service-connected folliculitis. See September 2016 VA examination report. However, the Veteran contends he had a reoccurring growth removed from the bottom of his right foot in June 2014, and a June 2014 VA treatment records notes a diagnosis of left foot porokeratosis. See July 2014 VA Form 9. Additionally, although numerous VA treatment records note no evidence of a skin condition, the Veteran claimed he had a rash in June 2012 and May 2018 VA treatment records reflect the Veteran has chronic “dermatitis/eczema.” See June 2012 Veteran correspondence; see also October 2014 VA treatment records (“no eczema”); March 2015 VA treatment records. Thus, the first element of service connection is met. The Veteran contends his first rash began during a tour in Iraq in August 2009. See June 2012 Veteran statement. He states the rash persisted into 2010, when he was informed that he had “contracted a fungi which became bacteria and now had eczema.” Id. The Veteran is competent to report the history of his symptoms along with information conveyed to him by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). STRs corroborate the Veteran’s statement that he was treated for a “rash on [his] arms and legs” in service on numerous occasions. See January 2010 STRs; February 2010 STRs (“rash on arms and legs…seen twice before for same rash….since August since returning from Iraq”). In January 2010, the Veteran was diagnosed with dermatophytosis tinea corporis. See January 2010 STRs. Later, in February 2010, the Veteran was re-diagnosed with dermatitis and provided medication to treat his skin condition. Id. February 2010 STRs also note a diagnosis of dermatophytosis tinea corporis. In May 2010, the Veteran sought private treatment and was diagnosed with atopic dermatitis with results “negative for fungi.” See May 2010 Dr. D.B. treatment records. This evidence reflects the second element of service connection is also met. Thus, the crux of this issue centers on whether the Veteran’s current skin condition is related to his in-service skin condition. As the December 2010 and September 2016 VA examiners found no current pathology of a skin condition, other than folliculitis, neither provided an opinion regarding the etiology of any skin condition. In May 2019, the Board remanded this claim for the AOJ to schedule a VA examination and obtain a medical opinion. A VA examination was scheduled for December 2019, but the Veteran cancelled and requested the examination be rescheduled. In January 2020, VA attempted to contact the Veteran twice to reschedule. See January 2020 VA Forms 21-0820. Regulations provide that in the case of original claims, if a Veteran fails to report for a necessary medical examination, the claims are decided on the evidence of record, absent a showing of good cause for the failure to report. 38 C.F.R. § 3.655. To date, the Veteran has not provided good cause for missing the scheduled VA examination. Unfortunately, the record does not contain a medical opinion regarding the etiology of the Veteran’s current skin conditions and the Board cannot make independent medical determinations. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Thus, while the Board finds the Veteran’s statements credible, a medical opinion is needed; all the evidence of record does not establish the Veteran’s current skin conditions are the same as his in-service dermatitis. See 38 C.F.R. § 3.303(d). While sympathetic to the Veteran, the Board finds the preponderance of the evidence is against a finding that the Veteran’s skin condition, other than folliculitis, is related to service and the Board must deny the claim. Increased Rating Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Veteran contends his left knee condition is more severe than his current rating indicates. He is currently service connected for left knee patellofemoral syndrome rated noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5260. See March 2019 rating decision codesheet. From October 16, 2018, the Veteran’s left knee limitation of extension was separately rated at 10 percent disabling under Diagnostic Code 5261 in conjunction with entitlement to a separate 20 percent rating under Diagnostic Codes 5258-5257 for “semilunar cartilage.” Id. Knee disabilities are rated under Diagnostic Codes 5256 through 5263 of 38 C.F.R. § 4.71a. Diagnostic Code 5256 addresses ankylosis of the knee. Diagnostic Code 5257 addresses recurrent subluxation or lateral instability. Diagnostic Code 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 addresses symptomatic residuals related to removal of semilunar cartilage. Diagnostic Code 5260 addresses limitation of motion on flexion while Diagnostic Code 5261 addresses limitation of motion on extension. Diagnostic Code 5262 addresses impairment of the tibia and fibula from malunion or nonunion. Diagnostic Code 5263 addresses genu recurvatum. The Board must consider the Veteran’s service-connected left knee condition under each Diagnostic Code. Limitation of Motion Under Diagnostic Code 5260, a 10 percent disability rating is assigned where flexion of the leg is limited to 45 degrees. See 38 C.F.R. § 4.71a. A 20 percent disability rating is in order where leg flexion is limited to 30 degrees. Id. A maximum schedular 30 percent disability rating is assigned where leg flexion is limited to 15 degrees. Id. Similarly, Diagnostic Code 5261 provides ratings for limitation of extension with the following ratings assigned: 10 percent for limitation of extension to 10 degrees, 20 percent for limitation of extension to 15 degrees, 30 percent for limitation of extension to 20 degrees, 40 percent for limitation of extension to 30 degrees, and 50 percent for limitation of extension to 45 degrees. Id. For reference, normal range of motion for the knee is defined under the regulations as consisting of extension to zero degrees and flexion to 140 degrees. See 38 C.F.R. § 4.71, Plate II. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, or flare-ups is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors such as decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement. Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Additionally, when there is evidence of painful motion, 38 C.F.R. § 4.59 operates to provide at least the minimum compensable rating available under the Diagnostic Code for the joint. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). At December 2010 and September 2016 VA examinations, the Veteran had full range of motion in his left knee. In an October 2018 private examination report, the Veteran’s flexion was limited to 120 degrees with extension limited to 5 degrees. As such, the Veteran’s left knee condition would not be compensable for VA benefits under Diagnostic Code 5260 and 5261 as a compensable rating requires either flexion limited to 45 degrees or less, or, extension limited to 10 degrees or more. However, when there is evidence of painful motion, 38 C.F.R. § 4.59 operates to provide at least the minimum compensable rating available under the Diagnostic Code for the painful joint. See Sowers, 27 Vet. App. at 478. The Veteran reported constant left knee pain during the appeal period that worsened with movement; thus, he is entitled to a minimum compensable rating for limitation of motion. See September 2016 VA examination report; October 2018 private examination report. Thus, the Board finds the Veteran entitled to the minimum compensable rating, 10 percent, under Diagnostic Code 5260 during the entire appeal for pain with movement. See Sowers, at 478. However, the Board must also consider whether a higher rating is warranted based on any functional loss due to pain, weakness, fatigability, incoordination, or flare-ups. See DeLuca, 8 Vet. App. at 204-07; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Any evidence of functional loss during flare-ups or due to pain, weakness, fatigability, or incoordination that results in an equivalent limitation of motion of flexion limited to 30 degrees or less, or extension limited to 10 degrees or more would warrant an increased disability rating. In December 2010, the VA examiner found the Veteran had no additional functional loss after repetitive use. In September 2016, the VA examiner stated the Veteran was being examined immediately after repetitive use over time and noted no additional functional loss due to pain, weakness, fatigability or incoordination. Neither the December 2010 nor September 2016 VA examiner estimated whether the Veteran’s left knee suffered any additional functional loss during the Veteran’s claimed flare-ups. As such, the Board finds these examinations inadequate for VA ratings purposes in this regard. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). The Veteran reported pain on movement with flare-ups precipitated by physical activity and noted difficulty standing and walking for extended periods of time. See December 2010 VA examination report; October 2018 private examination report. He reported flare-ups “as often as three times a day, lasting for two hours” where the Veteran “cannot squat and has limitation of motion.” See December 2010 VA examination report. The Veteran further noted pain, weakness, and tightness in his left knee that prevents him from driving and even lowering himself into a chair. See July 2014 VA Form 9; September 2016 VA examination report; October 2018 private examination report. In October 2018, a private examiner noted the Veteran exhibited additional functional loss due to pain during flare-ups and with repeated use over time. See October 2018 private examination report. The examiner estimated his range of motion decreased to 100 degrees flexion with extension limited to 10 degrees during flare-ups and with repeated use over time. Id. As such, the Veteran is not entitled to a rating greater than 10 percent under Diagnostic Code 5260 as his flexion is not limited to 30 degrees or less during the entire appeal period. For extension, the Veteran is not entitled to a rating greater than 10 percent from October 16, 2018 as his extension is not limited to 15 degrees or more, the criteria for the next highest rating. Additionally, the Veteran is not entitled to a compensable rating prior to October 16, 2018 as the medical and lay evidence reflects the Veteran had full extension, even with repeated use over time, prior to the October 2018 private examination. Further, any second, separate rating under Diagnostic Code 5261 for painful motion is impermissible as his left knee symptoms of painful motion are now fully addressed under Diagnostic Code 5260 and assigning an additional rating would violate the rules prohibiting pyramiding as it would compensate the Veteran twice for the same symptomatology of pain. 38 C.F.R. § 4.14; Sowers, 27 Vet. App. at 478. In summation, the Veteran is entitled to an initial 10 percent rating for painful motion under Diagnostic Code 5260. He is not, however, entitled to a compensable rating for limitation of extension under Diagnostic Code 5261 prior to October 16, 2018, or a rating greater than 10 percent thereafter. Instability Diagnostic Code 5257 provides ratings for demonstrated knee joint instability with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe, recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. “Nothing in DC 5257 provides that objective medical evidence is required or is to be favored over lay evidence.” See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Although December 2010 and September 2016 VA examiners found no left knee instability, the Veteran continuously reported symptoms of left knee instability. For example, the Veteran noted he was “unable to put pressure” on his knee and it “gives out” when he runs. See December 2010 VA examination report; see also June 2012 Veteran statement. He noted he “can no longer sit down or get up without flopping up or down in a chair unless [he uses] a wall to lower [himself] in the seated position” because his “knee gives out if [he] squats lower than four inches.” See July 2014 VA Form 9. At the September 2016 VA examination, the Veteran noted he occasionally used a brace for left knee support. Finally, the October 2018 private examiner noted the Veteran had moderate lateral instability and the Veteran reported to regularly use a brace for left knee support. Thus, the Board finds the Veteran’s symptoms of instability approximate moderate instability, the rating criteria for a 20 percent initial rating. The record does not reflect, however, that the Veteran’s symptoms reflect severe instability as the October 2018 private examiner found the Veteran’s instability moderate, not severe. Further, the Veteran did not constantly use a brace or other assistive device, the record does not contain any instances of the Veteran falling due to his left knee instability, and the medical evidence does not reflect subluxation or lateral instability until the October 2018 private examination. As such, the Board grants an initial rating of 20 percent, but no higher, for left knee instability. Other Diagnostic Codes The AOJ awarded the Veteran a 20 percent disability rating under Diagnostic Code 5258-5257 for left knee patellofemoral syndrome with semilunar cartilage from October 16, 2018. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5258 provides a flat 20 percent rating for limitation of motion reflected by the symptoms or findings of pain, locking, and effusion into the joint. See 38 C.F.R. § 4.71a. Diagnostic Code 5257 reflects separate ratings for instability, as discussed above. After review of the record, the Board finds the Veteran’s symptom picture warrants the aforementioned initial disability rating of 10 percent under Diagnostic Code 5260 in addition to a separate initial rating of 20 percent for instability under Diagnostic Code 5257, rather than any rating under Diagnostic Code 5258-5257. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history and demonstrated symptomatology. Read v. Shinseki, 651 F.3d 1296, 1302 (2011). Furthermore, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation payments. See 38 C.F.R. §§ 3.951, 3.957; Butts, 5 Vet. App. 532. The Board notes that the Veteran’s 20 percent rating under Diagnostic Code 5258-5257 has been in effect since October 2018; hence, the rating is not a protected disability rating. See Murray v. Shinseki, 24 Vet. App. 420, 428 (2011) (a rating is protected if it has been in effect for twenty years). Moreover, this shift in assigned diagnostic codes does not amount to a reduction, as the overall rating of the Veteran’s left knee disability increases, pursuant to the Order above. Under Diagnostic Code 5258, limitation of motion is reflected by the symptoms or findings of pain, locking, and effusion into the joint. See 38 C.F.R. § 4.71a. Under Diagnostic Codes 5260 and 5261, such limitation of motion is encompassed by the limitation of flexion and extension, including limitation of motion due to pain. Id. Both diagnostic codes overlap in “locking” as a form of limitation of motion that is usually accompanied by pain; therefore, the diagnostic codes both rate on knee pain and limitation of motion due to pain. Id. The predicate element in assigning several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Were the Board to grant separate ratings under Diagnostic Codes 5258 and 5260, the Veteran would receive compensation under two different codes for the same manifestations of pain and limitation of motion, which would constitute impermissible pyramiding per 38 C.F.R. § 4.14. Further, aside from the October 2018 private examination, the record does not reflect the Veteran has a dislocated semilunar cartilage during the appeal period. See September 2010 STRs (MRI report). Accordingly, the Board finds the 20 percent rating under Diagnostic Code 5258-5257 is discontinued. Additionally, the Veteran has not exhibited ankylosis; therefore, a separate rating under Diagnostic Code 5256 is not warranted. Also, as noted above, the record does not reflect the Veteran has dislocated or removal of his semilunar cartilage; hence, separate disability ratings under Diagnostic Codes 5258 or 5259 are not applicable. Further, the evidentiary record does not suggest current impairment of the tibia and fibula or genu recurvatum. As such, separate disability ratings under Diagnostic Codes 5262 and 5263 are not warranted. All potentially applicable Diagnostic Codes have now been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In summation, the Board finds the evidence of record more closely approximates the criteria for an initial disability rating of 10 percent, but no higher, for left knee patellofemoral syndrome under Diagnostic Code 5260 for painful motion, and a separate initial disability rating of 20 percent, but no higher, for left knee instability under Diagnostic Code 5257. Additionally, the Veteran is not entitled to a compensable rating for left knee limitation of extension prior to October 16, 2018, or a rating greater than 10 percent thereafter under Diagnostic Code 5261. Finally, the rating under Diagnostic Code 5258-5257 is discontinued. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.