Citation Nr: 21064812 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-31 266 DATE: October 21, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for pleural disease with restrictive lung disease is denied. Entitlement to a compensable initial rating for right leg length discrepancy is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis is remanded. FINDINGS OF FACT 1. During the period on appeal, testing of the Veteran's lungs did not reveal a ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of less than 71 percent, a FEV-1 of less than 71 percent predicted, or a Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of less than 66 percent. 2. The Veteran's right leg is less than 3.2 centimeters (1.25 inches) shorter than his left leg. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for pleural disease with restrictive lung disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 6845. 2. The criteria for a compensable rating for right leg shortening have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5275. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1964 to July 1968. These matters come before the Board of Veterans Appeals (Board) on appeal from October 2015 and February 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in July 2019, to obtain new VA examinations for the Veteran's legs and lungs. The RO completed this development, and the Board may therefore proceed with a decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Disability evaluations generally Disability evaluations are determined by comparing the manifestations of a disability with the criteria set forth in the Diagnostic Codes (DCs) of the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. § Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate ratings may be assigned to different conditions if they do not constitute the same disability or manifestation thereof. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). When 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. A schedular rating may be increased if there is objective evidence during examination or treatment of functional loss exceeding that fixed by a schedular rating. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); Mitchell v Shinseki, 25 VA 32 (2011); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Entitlement to an initial rating in excess of 10 percent for pleural disease with restrictive lung disease The Veteran's lung condition is rated under DC 6845, which provides disability ratings based on the results of pulmonary function testing (PFT). DC 6845 states that a 10 percent evaluation is warranted for FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO 66 to 80 percent predicted. A 30 percent evaluation is warranted for FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO 56 to 65 percent predicted. A 60 percent evaluation is warranted for FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent evaluation is warranted for FEV-1 less than 40 percent predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO less than 40 percent predicted; or, maximum exercise capacity less than 15 mg/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension, or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. The Veteran underwent PFT during his June 2021 VA examination. The examiner found that the Veteran's pre-bronchodilator FEV-1 was 79 percent predicted, and post-bronchodilator FEV-1 was 78 percent predicted. His pre-bronchodilator FVC was 79 percent predicted, and his post-bronchodilator FVC was 75 percent predicted. His pre-bronchodilator FEV-1/FVC was 100 percent, and his post-bronchodilator FEV-1/FVC was 103 percent. The examiner found that the Veteran's FVC percentage result gave the most accurate picture of his lung condition. The examiner did not conduct DLCO testing, stating that it was not indicated in the Veteran's case. The examination was conducted by a physician, and there is nothing to call the accuracy of the tests into question. (The Veteran's representative argued in a July 2021 brief that the Veteran "only completed pre-bronchodilator testing," but this is true only for the January 2020 examination.) The Board therefore finds that these examination results merit probative weight. The Veteran also underwent PFT at a January 2020 VA medical examination. The January 2020 VA examination found a pre-bronchodilator FVC of 71 percent predicted, a FEV-1 of 79 percent predicted, and a FEV-1/FVC of 111 percent. The examiner did not conduct post-bronchodilator testing, as the Veteran stated that the inhaler made him nauseated. The January 2020 examiner also found that DLCO testing was not indicated. Based on both of these examination reports, the Veteran's PFT would entitle him, at best, to an evaluation of 10 percent, for FEV-1 results between 71 and 80 percent. There are no PFT results of record that indicate a higher evaluation is warranted. The Board acknowledges the Veteran's lay testimony regarding functional loss, as well as severe coughing attacks due to his lung disability. The Veteran is competent to testify as to his own symptoms; his statements are considered credible, and they are entitled to due weight. The June 2021 VA examiner also described how the Veteran's lung disability impairs his performance of physical activities. However, the applicable DC calls for ratings to be assigned based on the results of objective pulmonary function tests. The RO and the Board are bound by applicable laws and regulations promulgated by the VA. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). The Veteran's pleural disease with restrictive lung disease has not met or more nearly approximated the criteria for a rating in excess of 10 percent at any time during the pendency of this claim. Accordingly, the benefit-of-the-doubt rule does not apply, and the Veteran's claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to a compensable initial rating for right leg length discrepancy The Veteran's disability for right leg length discrepancy is currently rated under DC 5275. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Criteria for shortening of the bones of the lower extremity are provided in DC 5275. Under DC 5275, shortening of the bones of the lower extremity that measures 1 14 to 2 inches (3.2 cm to 5.1 cm) warrants a 10 percent evaluation. Shortening of the bones of the lower extremity that measures 2 to 2 12 inches (5.1 cm to 6.4 cm) warrants a 20 percent evaluation. Shortening of the bones of the lower extremity that measures 2 12 to 3 inches (6.4 cm to 7.6 cm) warrants a 30 percent evaluation. Shortening of the bones of the lower extremity that measures 3 to 3 12 inches (7.6 cm to 8.9 cm) warrants a 40 percent evaluation. Shortening of the bones of the lower extremity that measures 3 12 to 4 inches (8.9 cm to 10.2 cm) warrants 50 percent evaluation. Shortening of the bones of the lower extremity that measures over 4 inches (10.2 cm) warrants a 60 percent evaluation. A note under DC 5275 indicates that both lower extremities should be measured from the anterior superior spine of the ilium to the internal malleolus of the tibia. The note also states that this DC should not be combined with other ratings for fracture or faulty union in the same extremity. When the Veteran was granted service connected for his right leg shortening in October 2015, he was given a noncompensable evaluation under DC 5275, as his leg shortening was found to be 2 cm (less than the 3.2 cm that warrants the minimum compensable evaluation under DC 5275). In April 2016, the RO increased his evaluation for right leg shortening to 10 percent, based on painful motion of the right knee caused by his leg shortening. Under 38 C.F.R. § 4.59, a veteran with a painful, unstable, or malaligned joint, due to healed injury, is entitled to at least the minimum compensable rating for the joint even if he does not otherwise meet the criteria for a minimum compensable rating under the applicable DC. The effective date of this increase was February 25, 2016, the date of the Veteran's increased rating claim. A March 2016 examination noted pain in the Veteran's right knee on flexion testing; a prior examination in October 2015 had noted no pain on examination of the right knee. A December 2019 rating decision granted service connection for right knee osteoarthritis, effective March 30, 2014the same date that service connection for right leg length discrepancy took effect. The Veteran was given an initial 10 percent evaluation for right knee osteoarthritis, due to painful motion. This meant that painful motion of the right knee was no longer factored into the Veteran's evaluation for right leg length discrepancy, as separate evaluations for the same disability are not permitted by VA regulations. 38 C.F.R. § 4.14. The Veteran is now in receipt of a 10 percent evaluation for right knee osteoarthritis and a noncompensable evaluation for right leg length discrepancy, both effective March 30, 2014. A June 2021 VA examination measured the Veteran's right leg length discrepancy at 1.5 cm, while an October 2015 VA examination measured the discrepancy at 2 cm. VA podiatry notes from January 2015 describe the Veteran's right leg length discrepancy as measuring 2 cm. No evidence of record suggests that the Veteran's right leg discrepancy is 3.2 cm or greater, and the Veteran has not alleged otherwise; the Veteran's representative acknowledged in a July 2021 brief that the Veteran's right leg length discrepancy "does not meet the criteria for a higher evaluation at this time." Therefore, a higher rating under DC 5275 is not warranted. The Veteran has been granted secondary service connection for left knee, right ankle, right and left hip, and back disabilities associated with his right leg length discrepancy; those disabilities have been evaluated separately, and will not be considered as part of his evaluation for right leg length discrepancy. (Evaluation for right knee osteoarthritis is being considered by the Board today, as this condition was previously evaluated in conjunction with the Veteran's right leg length discrepancy.) In consideration of the above, the Board denies the claim for a compensable initial rating for right leg length discrepancy. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND In the July 2019 remand, the Board instructed the RO to obtain a new VA examination of the Veteran's knees, as he had alleged deficiencies in previous examinations. A new examination was conducted in June 2021. Unfortunately, the Board finds that a second remand to obtain a new examination is warranted. When a case is remanded, a veteran is entitled to substantial compliance with all remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the RO does not substantially comply with the Board's remand instructions, the Board is legally bound to continue remanding until the mistake is corrected. See id. Furthermore, VA has a duty to ensure that any examination it provides is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The June 2021 examination noted pain on flexion and extension, during both active and passive motion, in the right knee, and said that this pain resulted in functional loss. However, the examiner did not note where in the range of motion this pain began. See Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). It is not clear whether the examiner tested both weight-bearing and non-weight bearing ROM. Id., 38 C.F.R. § 4.59. When asked if there was evidence of pain during testing, the examiner checked the box for "yes," but did not check boxes for either weight-bearing or non-weight-bearing. The severity of the Veteran's limitation of motion following repeated use over time is also unclear. The examiner indicated that the Veteran only lost an additional ten degrees flexion due to pain, fatigability, weakness, lack of endurance, and stiffness after repeated use over time, but also said that they were unable to perform repetitive use testing with three repetitions because the Veteran was in too much painpotentially suggesting a more severe impairment on repeated use. (The examiner stated that the Veteran was not being examined during a flare-up.) The matters are REMANDED for the following action: 1. Obtain a new examination of the Veteran's knees from an appropriate clinician. The Veteran's entire claims file, including a copy of this remand, must be made available to the examiner for review. The examiner must certify in the addendum opinion report that the claims file has been reviewed. The examiner must perform full range of motion testing (active and passive, weight-bearing and non-weight-bearing, and testing following three repetitions) for both knees. The examiner should describe any pain, weakened movement, excess fatigability, instability, and incoordination present. If the examiner is unable to conduct any part of the required testing or concludes that the required testing is not necessary in this case, the examiner must clearly explain why. The examiner must clearly identify where in the arc of motion the Veteran begins to experience pain, and whether that pain results in functional loss. The examiner must state whether the examination is taking place during a flare-up. If not, the examiner must ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his right knee symptoms and after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an estimate, in degrees, of any additional limitation of motion caused by functional loss during a flare-up and after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should explain why, and state whether this is because of a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training. 2. This case has been Advanced on the Docket. The Agency of Original Jurisdiction (AOJ) must review the examination reports and opinions to ensure they are adequate and comply with the Board's specific remand directives herein. If an opinion is deficient in any manner, the AOJ must undertake immediate corrective action before returning the case to the Board. Continued on next page JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.