Citation Nr: 21064149 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 15-31 790 DATE: October 19, 2021 ORDER Entitlement to service connection for type II diabetes mellitus is denied. Entitlement to an initial rating in excess of 20 percent for right knee patellar tendonitis is denied. Resolving all reasonable doubt in the Veteran's favor, a separate 10 percent rating for slight right knee instability is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's type II diabetes mellitus began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran's right knee patellar tendonitis is manifested by slight knee instability, painful motion, and limited motion. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for type II diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to an initial rating in excess of 20 percent for right knee patellar tendonitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5261. 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for a separate 10 percent rating for slight right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1989 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2018, the Board remanded these issues for further development. There has been substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for diabetes mellitus is denied. The Veteran contends that his type II diabetes mellitus is related to military service and that it was diagnosed in 1993. 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. The Board concludes that, while the Veteran has a current diagnosis of type II diabetes mellitus, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of type II diabetes mellitus began during service or is otherwise related to an in-service injury, event, or disease. Turning to the evidence of record, the Veteran's service treatment records (STRs) are silent for symptoms/complaints of or treatment for diabetes. His August 1992 separation examination does not report diabetes. Private treatment records show the Veteran was not diagnosed with type II diabetes until 2006, 14 years after his separation from service. Specifically, a January 2007 infectious disease consultation includes as "pertinent history" that the Veteran presented with coronary artery disease and was found to have diabetes in the fall of 2006. VA treatment records continue to show the Veteran's diagnosis of diabetes. In September 2018, the Board remanded the issue to offer the Veteran a VA examination and obtain a medical opinion regarding the etiology of his type II diabetes. Pursuant to the remand, the Veteran was afforded a VA examination in December 2019. The examination report indicates that a diagnosis of type II diabetes mellitus was made between 2005 and 2006. The Veteran's diabetes was treated by managing a restricted diet and a prescription oral hypoglycemic agent. Regarding frequency of diabetic care, the examiner noted that the Veteran visited his diabetic care provider less than two times per month for episodes of ketoacidosis and hypoglycemia. The examiner also noted that the Veteran's diabetes had no functional impact on his ability to work. Although an examination was performed, the examiner did not provide a medical opinion as requested. Thus, in an April 2021 addendum, the same VA examiner opined that the Veteran's type II diabetes was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In providing the rationale, the examiner noted the Veteran's service dates and specifically, the separation exam which did not show a diagnosis of diabetes. The examiner referenced a September 1992 urinalysis with negative results for albumin; sugar; and blood glucose (89). The examiner also referenced other post-service treatment records, including an October 2006 private treatment note reporting a recent onset of diabetes mellitus and an August 2009 private note reporting a history of "borderline diabetes." Lastly, the examiner considered a June 1999 private treatment note, which had lab results of lucosae as within normal limits and no diagnosis of type II diabetes. With these records and her medical knowledge, the examiner competently determined that it was less likely than not that the Veteran's type II diabetes, which was diagnosed 13 years after his discharge from active duty, onset in service, or within a year of his discharge from service, or was otherwise etiologically related to his military service. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Indeed, the Veteran believes his diabetes is related to an in-service injury, event, or disease and the Board recognizes that he has experience working as a certified nursing assistant. Thus, the Veteran has had medical training and experience. However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In this regard, the Board does not find the Veteran's lay report of onset credible as it is inconsistent with the contemporaneous treatment records. Notably, in his May 2013 notice of disagreement, the Veteran asserts that he was first diagnosed with diabetes in 1993, "shortly after my discharge." However, upon review of various treatment records, particularly private treatment records, there is no report for an onset of diabetes in the 1990s. A February 2001 private treatment note, which reports his family history of diabetes, does not indicate that the Veteran had diabetes. Moreover, an October 2006 treatment note plainly states that the diagnosis of diabetes was made in the fall of 2006. Thus, despite the Veteran's competency due to his medical training, his report of onset is not credible because of these inconsistencies. Therefore, the VA examiner's opinion is more probative. The Board notes that while diabetes mellitus is an enumerated condition under 38 C.F.R. § 3.309(a), service connection is still not warranted because diabetes was not shown as chronic in service or within a presumptive period. Further, there is no evidence demonstrating that it manifested to a compensable degree within a year from discharge from active service. To the extent the Veteran asserts otherwise, the Board notes the inconsistencies addressed earlier regarding his private treatment records versus his lay report. In view of the foregoing, the preponderance of the evidence is against the claim for entitlement to service connection for type II diabetes. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim of service connection for type II diabetes mellitus must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). HIGHER RATINGS Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155. Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of the two disability evaluations is applied, the higher evaluation 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. After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When rating the Veteran's service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board must also fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). 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). 1. Entitlement to an initial rating in excess of 20 percent for right knee patellar tendonitis is denied. Service connection for right knee patellar tendonitis was granted in a November 2012 rating decision. A 10 percent rating was assigned under 38 C.F.R. § 4.71a, DC 5260. The effective date of the grant of service connection is March 5, 2010. During the pendency of the appeal the RO found a clear and unmistakable error in the evaluation of the Veteran's right knee patellar tendonitis and in an August 2015 rating decision, awarded him a higher initial rating of 20 percent for his right knee disability effective March 5, 2010. As this rating does not reflect the full grant of the benefit sought on appeal, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran contends in a July 2021 correspondence that he is entitled to a higher rating because he has knee pain, and this condition has interfered with his ability to work. The Veteran's xanthoma of the right patellar tendon (right knee disability) is rated under 38 C.F.R. § 4.71a, diagnostic code 5261, for limitation of extension of the leg. Under DC 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. The Board notes that effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg; however, DC 5261 was unchanged. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's right knee disability. The Board acknowledges the Veteran's lay reports of symptoms and that there is functional loss due to knee swelling and pain which make him unable to kneel or squat. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he has sharp pain that comes and goes a few times per month, with pain between a 5 or 6 out of 10, lasting up to a full day, would not result in limitation of motion more nearly approximating extension limited to 20 degrees. At his October 2010 VA examination, the Veteran reported symptoms of stiffness, popping and clicking in his right knee, with no locking. The pain was described as an ache, occasionally sharp with certain types of twisting motions, non-radiating. He endorsed flare-ups if he walked for long distances, greater than one mile. The examiner found anterior swelling in the area of the patellar tendon, which was nontender. There was tenderness over the medial joint line of the right knee, but no motion in the medial and lateral collateral ligaments in the neutral and 30 degrees of flexion positions. Flexion was limited to 80 degrees and reduced to 70 degrees after three repetitions of motion with pain on all repetitions of motion. Extension was minus 10 degrees and reduced to minus 15 degrees with three repetitions of motion due to pain. Anterior and posterior drawer tests were negative as was McMurrary's tests. The examiner noted that a September 2010 x-ray revealed marked superficial anterior soft tissue swelling distal to the patella and no evidence of joint effusion. The articular and bony structures appeared intact. A diagnosis of right knee patellar tendonitis was reported. During the course of the appeal, the Veteran was afforded a new VA examination to determine the nature and severity of his right knee disability in November 2014. There, the Veteran continued to report similar symptoms of popping, cracking, with some sensation of swelling. He also reported pain and discomfort. The examiner noted the Veteran's range of motion as intact and felt crepitus on palpation of the knee. The examiner also noted that the Veteran's x-ray from that month revealed soft tissue swelling in the infrapatellar soft tissue of the right knee; there was no evidence of a knee spur. On range of motion test, both flexion and extension were normal with 140 degrees and 0 degrees, respectively. In September 2018, the Board remanded this claim for a new VA examination because since the November 2014 examination, the Court of Appeals for Veterans Claims (Court) clarified that examinations of musculoskeletal disabilities must comply with the language of 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016). As a result, and where applicable, VA examinations needed to test range of motion studies in both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Although the November 2014 VA examination satisfied some of the requirements, it did not fully comply with Correia. Thus, it cannot be used for rating purposes. Pursuant to the Board remand, the Veteran was afforded a VA examination in December 2019. There, he reported flare-ups occurring a few times per month with pain lasting from half a day to an entire day. In general, he described sharp pain that comes and goes at a pain level of either 5 or 6 out of 10. He complained that sometimes the right knee gives out; his prolonged walking was limited, he was unable to kneel or squat; and had to stop riding a stationary bike due to pain in the right knee. On range of motion testing, both flexion and extension were normal at 140 and 0 degrees, respectively. There was no evidence of pain on weight bearing, non-weight bearing, or passive range of motion testing. The Veteran was able to perform repetitive use testing with at least three repetitions and without additional functional loss or range of motion. Neither pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over a period of time or flare-ups. Muscle strength was rated a 5 out of 5. There was no muscle atrophy, ankylosis, meniscal condition, and the Veteran did not use an assistive device. Joint stability tests were normal; there was no instability or subluxation reported. The examiner revised the Veteran's diagnosis as xanthoma of the patellar tendon, noting that it was a progression of the right knee disability. Upon review of the evidence, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's right knee limited extension. The VA examination reports demonstrate an improvement in the Veteran's limitation of extension. Where in October 2010 his extension was limited to a minus 15 degrees, his extension in December 2019 was 0 degrees, which is normal. Surely, the Veteran continues to complain of right knee pain, but pain is already accounted for in the assignment of his current rating. As for flare-ups of pain, these may last up to a day and occur a few times per month. This level of pain is also accounted for in his current disability rating of 20 percent. An even higher 30 percent disability rating would require extension with limitation to 20 degrees; however, even with the Veteran's reported symptoms of pain and functional loss, the evidence does not show limitation of motion more nearly approximating extension limited to 20 degrees. Thus, a rating in excess of 20 percent for right knee limitation of extension disability is not warranted. A higher or separate rating under DC 5260 is also not warranted as the evidence does not reflect a compensable limitation of flexion. The Board has found sufficient basis to award a separate 10 percent rating under DC 5257 for subjective complaints of instability. This rating is assigned due to the Veteran's subjective reports of instability in his knee. At the October 2010 VA examination, the Veteran did not report sensations of give-way or instability. He denied use of any assistive devices for ambulation. During his November 2014 VA examination, however, he reported that he is afraid to walk because he feels unstable due to the right knee giving way. He stated that he sometimes feels that he might and fall. During the November 2019 VA examination, he reported that his knee 'sometimes' gives out. This credible lay evidence of feelings of instability and occasional give-way supports the assignment of a compensable rating for instability. See English v. Wilkie, 30 Vet. App. 347 (2018). An even higher rating under DC 5257 is not warranted because objective medical evidence, which is probative, fails to establish clinical findings of recurrent subluxation or lateral instability on examination. The VA examination reports of record show testing for lateral instability and recurrent subluxation were normal. The Board has also considered the other diagnostic codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). However, subluxation, a removal of symptomatic semilunar cartilage, and genu recurvatum are not shown. Thus, a separate rating is not warranted under diagnostic codes 5259 or 5263. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for his right knee disability under DC 5261. However, a separate 10 percent rating for slight right knee instability is warranted under DC 5257. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Telamour, 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.