Citation Nr: 21004393 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 11-30 750 DATE: January 27, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for a left knee disability is denied. REMANDED Entitlement to an increased rating in excess of 20 percent for a left shoulder disability is remanded. Entitlement to a compensable rating in for scar of the scalp is remanded. FINDINGS OF FACT The Veteran’s left knee disability is productive of limitation of motion of, at worse, flexion of 80 degrees, with normal extension, no additional limitation due to flare-up, and no ankylosis. CONCLUSIONS OF LAW The criteria for an increased rating in excess of 10 percent for a left knee disability manifested by limitation of motion have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty from July 1990 to July 1994. Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient. A coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The rating of the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Different ratings may be assigned for separate periods of time if distinct periods are shown by the competent evidence of record during the pendency of the appeal that warrants different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another provided that VA offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429 (1995). 1. Entitlement to an increased rating in excess of 10 percent for a left knee disability The Veteran contends that his left knee disability warrants a higher rating than his current 10 percent. Specifically, the Veteran contends that he has constant pain and limited motion in his left knee, to include flare-ups. The Board notes that the competent medical evidence of record, to include VA treatment records and VA examinations, shows that the Veteran’s left knee disability is manifested by range of motion limited to, at worst, 80 degrees of flexion and normal extension. The Board finds that level of disability does not warrant a higher rating based on limitation of motion, or a separate rating under any other diagnostic codes for the knee. Therefore, the claim for an increased rating must be denied. The Veteran’s left knee disability is rated under Diagnostic Code 5260. 3 8 C.F.R. § 4.71a. 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, DC 5260. The standard ranges of motion of the knee are zero degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. 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). The Veteran was provided VA examinations to assess the nature and severity of his service-connected left knee disability in April 2010, April 2015, February 2018, and January 2020. A close review of the VA examination reports revealed no objective evidence of limitation of motion that even approaches the requisite 30 degrees on flexion (or to 10 degrees on extension) required for a higher rating. The Veteran’s initial VA examination, conducted in April 2010, noted subjective reports from the Veteran of pain, weakness, swelling, stiffness, instability, and fatigability. Upon testing, range of motion was limited to 90 degrees of flexion, with normal extension (zero), for the left knee, and no objective signs of pain at 90 degrees. Repeat examination revealed no additional limitation of motion. The examiner noted that the Veteran’s knees were “stable” on examination, despite subjective complaint of instability by the Veteran. The examiner ultimately diagnosed the Veteran with internal derangement of the left knee. At an April 2015 VA examination, the Veteran was again diagnosed with left knee internal derangement, with complaints of constant pain, and increased pain after prolonged use such as walking and standing; the Veteran, however, noted no flare-ups during the examination. Upon testing for range of motion, the Veteran’s left knee showed flexion was limited to 130 degrees and normal extension. The examiner noted pain, to include on weightbearing, with tenderness/pain on palpation; no additional objective loss of range of motion was noted upon repetitive testing. No instability was found upon stability testing, with muscle strength presenting normal, and no indications of ankylosis. The examiner noted functional loss due to pain, weakness, fatigability, or incoordination, but the examiner noted no additional objective loss of range of motion. Finally, diagnostic testing revealed no evidence of arthritis. When evaluating functional loss, the examiner noted that the Veteran’s pain prevented prolonged walking and standing. At his February 2018 VA examination, the Veteran’s left knee condition showed to be markedly unchanged. He was diagnosed with internal derangement of the left knee, with subjective complaints of increased pain, to especially include after prolonged walking and standing. To this end, the Veteran also complained about popping and snapping of his knees, with activity; again, no flare-ups were noted by the Veteran. Upon examination the Veteran’s left knee range of motion was reported as limited to 80 degrees of flexion, with extension limited to five degrees. Repeat testing of range of motion reveals no additional loss of range of motion. Further testing reveals no evidence of instability or ankylosis. No assistive devises were noted to be required for ambulation, and the examiner noted functional impact of the Veteran’s condition were limited to preventing prolonged use to include walking, standing, and climbing stairs. Finally, at the Veteran’s final and most recent VA examination to assess the nature and severity of his left knee disability in January 2020, the Veteran’s condition was evaluated to be in line with his pervious examinations. The Veteran’s subjective complaints of increased pain upon prolonged use of his left knee were noted, along with complaints of popping and snapping. Upon testing, the Veteran’s left knee flexion was limited to only 130 degrees, with no evidence of pain on motion. Localized tenderness/pain was noted on palpation, however, no pain on weight bearing. Repetitive testing reveals no additional loss of range of motion, nor were there any additional range of motion loss due to flare-ups. Joint instability and ankylosis were noted to be negative, and no degenerative changes were noted on diagnostic review. With regards to functional impact, the examiner noted that the Veteran has increased pain after prolonged use to include walking and standing. The Board finds that a close review of the VA examinations reveals a markedly similar disability picture throughout the claims period. Here, upon testing, the Veteran’s left knee range of motion was noted to be, at worse, limited to 80 degrees of flexion and five degrees extension. These examinations additionally reveal no finding of instability, ankylosis, or arthritis; and no objective evidence of any additional loss of range of motion due to functional loss or flare-ups. In addition to these VA examinations, the Board notes that no additional VA or private treatment records reveals any other objective measure of the Veteran’s knee disability, or note any additional diagnoses or symptoms related to such disability, to include arthritis, instability, or ankylosis. Therefore, the Board finds that the VA examinations to be the most probative and comprehensive evaluations of the Veteran’s left knee disability picture during the claims period. However, even considering the February 2018 VA examination results, which hallmarks the Veteran’s left knee disability at its worse, with flexion noted to be limited to 80 degrees and five degrees of extension, the Board notes that these findings do not more nearly reflect the criteria for a higher rating based on limitation of motion under Diagnostic Code 5260. While there is functional loss due to pain, especially after prolonged use, it is not productive of the functional equivalent of flexion limited to 30 degrees or worse for the left knee, which is required under Diagnostic Code 5260 for the next higher 20 percent rating. The examinations of record shows that the Veteran, while reporting pain, performed repetitive testing without further decreases in range of motion. Even a review of the VA treatment records during the claims period reveal no additional evidence showing a disability of the left knee that approaches the 30 degrees limitation of flexion required for a 20 percent rating under the appropriate diagnostic code. The Board finds that the Veteran’s left knee disability is manifested by no more than pain and range of motion limited to, at worst, 80 degrees flexion and five degrees of extension, even considering additional functional loss after repetition. Therefore, as there is no evidence of limitation of motion limited to 30 degrees of flexion or below, at any point during the claims period, the Board must find that the Veteran’s claim for a rating in excess of 10 percent is not warranted under the Diagnostic Code for limitation of flexion. Likewise, a separate, or higher, rating is not warranted for limitation of extension, under Diagnostic Code 5261 (which provides a 10 percent rating for knee extension limited to 10 degrees), or instability, under Diagnostic Code 5257 (which provides a 10 percent rating for slight knee instability). Here, again, the Board notes that the objective medical evidence of record ostensibly has noted that the Veteran’s extension to be normal (zero degrees), throughout the claims period, with a single (February 2018) examination noting a five degree of limitation, and that extensive stability testing has revealed no instability or subluxation in either knee. As such, a separate, or higher rating, under either Diagnostic Code would not be warranted under the current facts of the claim. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Here, however, a higher or separate rating are not warranted under any other potentially applicable Diagnostic Codes. There is no lay or objective evidence of ankylosis (Diagnostic Code 5256); or frequent episodes of “locking,” pain and joint effusion (Diagnostic Code 5258); or impairment of tibia and fibula (Diagnostic Code 5262); or genu recurvatum (Diagnostic Code 5263). As such, considering under these Diagnostic Codes would be inappropriate, and not warranted. The Board has considered the Veteran’s lay statements and complaints. With regard to the lay statements, the Board notes that while the Veteran is competent to speak to lay observable symptoms such as pain, he is not competent to speak to the specific objective criteria of exact measurements for range of motion as it pertains to the applicable diagnostic code. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Evaluations of the Veteran’s left knee disability have been provided by medical professionals of record and their results were considered in this decision. The Board assigns more probative weight to those examination results because of the experience and training of the examiners. Accordingly, the Board finds that the preponderance of evidence is against the claim for a higher rating for a left knee disability, or any separate rating based on limitation of motion or instability, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 20 percent for a left shoulder disability The Board finds that the most recent VA examination afforded to the Veteran in January 2020, to be inadequate, and remand is required. Here, the Board finds that the January 2020 VA examination to be internally inconsistent with regards to evaluating the nature and severity of the Veteran’s service-connect left shoulder disability. Specifically, the examiner noted a finding of favorable ankylosis, with abduction up to 60 degrees, and can reach mouth and head, however, earlier in the VA examination, physical testing of the Veteran’s left shoulder showed 90 degrees of abduction on the left side, with no signs of pain; additionally, the examiner noted that the Veteran had explicitly noted that he could still lift his arms overhead, albeit with increased pain. The Board finds that such findings of movement beyond 60 degree and overhead are inconsistent with a finding of ankylosis, and as such the Board must find that the examination to be inadequate. The Board notes that the VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.15 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Therefore, the Board finds that, as the January 2020 VA examination is found to be inadequate, remand is necessary for the VA to fulfil its duty to the Veteran. 2. Entitlement to a compensable rating in for scar of the scalp The Board additionally find that the VA examinations afforded to the Veteran with regards to his claimed scalp scar disability is also inadequate. Specifically, the Board notes that the Veteran was afforded VA examinations in April 2010, February 2018, and January 2020. To this end, however, a close review of these VA examinations show that measurements of the Veteran’s scalp scar has varied wildly, without any explanation from examiner or evidence of marked improvements in the Veteran’s condition. To this end, the Board notes that in April 2010, the Veteran’s scar was noted to measure 2 cm x 2 cm, whereas during the February 2018 examination it measured 5 cm x .1 cm, and finally during the January 2020 examination the Veteran’s scar measured 2 cm x .25 cm. The Board notes that since one of the “characteristic disfigurements” under the relevant criteria under 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805, is based on the width of the scar being over .6 cm (or one-quarter inch), the Board must find that the variance from 2 cm to .1 cm, and then .25 cm, between examinations to be suspicious and renders the examinations inadequate for appellate review. Additionally, as there is no evidence of an improving condition related to the scar, or any explanation from the VA examiners regarding the wild variance in the measurement of the scar, the Board must find such examinations to be inadequate, and as such, remand is required for the Board to fulfill its duty to the Veteran. The matter is REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. Schedule the Veteran for an examination to assess the nature and severity of his left shoulder disability. The examiner must review the claims file and should note that review in the report. The examiner should provide ranges of shoulder motion for active and passive motion for both shoulders. The examiner should state whether there is any additional loss of function due to weakened motion, painful motion, excess motion, fatigability, incoordination, or on flare up. The AOJ must ensure that the associated examination report includes all information necessary for rating purposes. 3. Following completion of the above, afford the Veteran an appropriate VA examination to evaluate the current severity of his scar of scalp. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. All indicated studies and tests should be conducted, and the examiner should review the results of any testing prior to completing the report. The examiner should indicate the location and size of any and all scars on the Veteran’s scalp. The examiner should note whether such scars are associated with underlying soft tissue damage, whether there is frequent loss of covering of the skin over the scar (i.e., unstable) or whether the scars are painful on examination. With regard to the head, face and neck; the examiner should note whether there is visible or palpable tissue loss, gross deformity or distortion of any features or paired features, or any of the 8 characteristics of disfigurement (found in Note 1, 38 C.F.R. § 4.118, DC 7800). Any scars that are deep or cause limitation of motion should be measured and reported. The examiner should also indicate whether there is limitation of function of the Veteran’s head or scalp, as a result of any scar and, if so, describe such limitation in detail. The examiner should also indicate whether there are any other disabling effects, per Diagnostic Code 7805. The examiner is advised that the Veteran is competent to report injuries as well as symptoms, and that his reports must be considered in formulating the requested opinion. The examiner is also asked to explicitly and retroactively address the variations regarding the size (length and width) of the Veteran’s scar throughout the claims period. The examiner must reconcile and resolve which evaluation of the scar is more accurate, and why his/her current measurement (if it varies from previous examinations) is accurate. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.