Citation Nr: 21065116 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-20 678 DATE: October 25, 2021 ORDER A rating in excess of 10 percent for post-operative residuals and degenerative joint disease of the left knee is denied. A rating in excess of 10 percent for post-operative residuals and degenerative joint disease of the right knee is denied. A compensable rating for allergic rhinitis is denied. REMANDED Entitlement to a compensable rating for scars of the knees is remanded. Propriety of the assignment of the separate rating for painful scars associated with the knees, evaluated as 30 percent disabling as of October 12, 2018, is remanded. Entitlement to a compensable rating for scar, post-operative residuals of left inguinal hernia, is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's post-operative residuals and degenerative joint disease of the left knee is manifested by flexion limited to, at most, 90 degrees and extension limited to, at most, 5 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, recurrent subluxation or lateral or patellar instability, dislocation or removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. 2. For the entire appeal period, the Veteran's post-operative residuals and degenerative joint disease of the right knee is manifested by flexion limited to, at most, 85 degrees and full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, recurrent subluxation or lateral or patellar instability, dislocation or removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. 3. For the entire appeal period, the Veteran's allergic rhinitis does not result in a 50 percent blockage of both nasal passages, a complete blockage of one nasal passage, or nasal polyps. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for post-operative residuals and degenerative joint disease of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code 5299-5261. 2. The criteria for a rating in excess of 10 percent for post-operative residuals and degenerative joint disease of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code 5003-5260. 3. The criteria for a compensable rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.31, 4.97, Diagnostic Code 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to July 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in July 2015 and February 2016 by a Department of Veterans Affairs (VA) Regional Office. In January 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge in connection with his claim for an increased rating for his left knee disability. A transcript of the hearing is associated with the record. At such time, he waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the November 2018 supplemental statement of the case. 38 C.F.R. § 20.1305(c). In October 2020, the Veteran's representative withdrew his request for a Board hearing in connection with the other issues on appeal. 38 C.F.R. § 20.704(e). Increased Ratings Disability ratings are determined by applying a schedule of ratings that is 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The appeal period for the Veteran's left knee disability stems from his increased rating claim received on September 22, 2014, and the appeal period for his right knee disability and allergic rhinitis stem from his increased rating claims received on November 27, 2015, plus the respective one-year look-back periods. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). 1. Entitlement to a rating in excess of 10 percent for post-operative residuals and degenerative joint disease of the left knee. 2. Entitlement to a rating in excess of 10 percent for post-operative residuals and degenerative joint disease of the right knee. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). For the entire appeal period, the Veteran's left knee disability is rated as 10 percent disabling pursuant to Diagnostic Code 5299-5261 and his right knee disability is rated as 10 percent disabling pursuant to Diagnostic Code 5003-5260. 38 C.F.R. § 4.71A. In this regard, hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, required rating by analogy, the Diagnostic Code number will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, the skin, and the last two digits will be "99" for all unlisted conditions. Then, the disability is rated by analogy under a Diagnostic Code to a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. In the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. In this regard, the Board notes that, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71A were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. However, as pertinent to the instant case, Diagnostic Codes 5003, 5260, and 5261 were not affected by the amendments. Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is only limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. For a 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). In regard to the Veteran's reported knee symptoms, he described difficulty bending his knees, having his left knee lock up on occasion, and flare-ups with prolonged standing, attempting to kneel, and climbing down ladders in July 2015. On VA examination in January 2016, the Veteran reported that his right knee gave way in November 2015, described flare-ups of pain after sitting in a chair for a long period, and stated that his range of motion was limited to approximately 90 degrees. In October 2018, he reported symptoms of weakness, instability, and joint pain. However, for the reasons discussed below, the Board finds that, even taking into consideration such reports of knee symptomatology, such disabilities do not result in functional loss that more nearly approximates higher or separate ratings under any relevant Diagnostic Code. See DeLuca, supra; Mitchell, supra. With respect to the Veteran's left knee disability, a September 2014 VA treatment record indicates he had full range of motion, and a February 2015 VA treatment record shows flexion was limited to 100 degrees with pain at the extent of flexion and extension limited to 5 degrees. The July 2015 VA examination report reflects flexion limited to, at most, 90 degrees, after repetitive-use testing, and extension limited to 5 degrees. An October 2015 VA treatment record shows the Veteran had full range of motion, whereas a February 2016 VA treatment record demonstrates flexion limited to 100 degrees and extension limited to 5 degrees with mild swelling. VA treatment records dated in October 2016 and October 2017 indicate the Veteran had full range of motion. On VA examination in October 2018, flexion was limited to 95 degrees with full extension, to include with pain on active and passive range of motion, weight-bearing and nonweight-bearing, following repeated use over time, and during flare-ups. Based on these findings, the Veteran's left knee flexion was limited to, at most, 90 degrees and extension was limited to, at most, 5 degrees during the appeal period, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Thus, the Board finds a rating in excess of 10 percent is not warranted under Diagnostic Code 5261, and a higher or separate rating is not warranted under Diagnostic Code 5260, for the Veteran's left knee disability. With respect to the Veteran's right knee disability, a September 2014 VA treatment record indicates he had full range of motion, and a February 2015 VA treatment record shows flexion was limited to 90 degrees with pain at the extent of flexion, and full extension. The July 2015 VA examination report reflects flexion limited to, at most, 100 degrees with full extension. An October 2015 VA treatment record shows the Veteran had full range of motion. On VA examination in January 2016, flexion was limited to 88 degrees, with full extension, whereas a February 2016 VA treatment record demonstrates flexion limited to 90 degrees with full extension. VA treatment records dated in October 2016 and October 2017 indicate the Veteran had full range of motion. On VA examination in October 2018, flexion was limited to, at most, 85 degrees with full extension, to include with pain on active and passive range of motion, weight-bearing and nonweight-bearing, following repeated use over time, and during flare-ups. Based on these findings, the Veteran's right knee flexion was limited to, at most, 85 degrees, and he had full extension during the appeal period, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Thus, the Board finds a rating in excess of 10 percent is not warranted under Diagnostic Code 5260, and a higher or separate rating is not warranted under Diagnostic Code 5261 for the Veteran's right knee disability. Additionally, as the Veteran reported instability and giving way of his bilateral knees, the Board has considered whether a higher or separate rating is warranted under Diagnostic Code 5257, which provides ratings for recurrent subluxation, lateral instability, and, as of February 7, 2021, patellar instability. VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). The Court has held that Diagnostic Code 5257 as in effect prior to February 7, 2021, does not require objective medical evidence of lateral instability for a rating to be assigned. English v. Wilkie, 30 Vet. App. 347 (2018). In this regard, while the Veteran is competent to describe feelings of instability and giving way, he is not competent as a lay person to diagnose lateral instability, recurrent subluxation, or patellar instability, or relate such feelings to a specific diagnosis, as such requires the administration and interpretation of specialized testing of the ligaments and patella, respectively. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Rather, the July 2015 VA examination report indicates the Veteran did not have a history of recurrent subluxation or lateral instability, and objective testing did not reveal any instability or patellar dislocation. Likewise, VA examination in January 2016 reflects that there was no history of recurrent subluxation or lateral instability of the right knee, and objective testing did not reveal any instability or patellar dislocation. Although the October 2018 VA examiner noted the Veteran had a history of slight recurrent subluxation and slight lateral instability of the bilateral knees, which the Board notes is consistent with his in-service surgeries to repair anterior cruciate ligament tears in both knees, objective testing did not reveal any instability or patellar dislocation. Consequently, the Board affords greater probative weight to the VA examiner's findings showing no subluxation or instability during the appeal period than the Veteran's generalized lay statements. See, e.g., Waters v. Shinseki, 601 F.3d 1274, 1278 (201). Therefore, the Board finds that higher or separate ratings under Diagnostic Code 5257 is not warranted for either knee disability. Additionally, as the evidence of record does not demonstrate ankylosis, dislocated or removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum at any time during the pendency of the appeal, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for application. 3. Entitlement to a compensable rating for allergic rhinitis. The Veteran is currently in receipt of a noncompensable rating for allergic rhinitis under Diagnostic Code 6522. In this regard, under DC 6522, a 10 percent rating is assigned for allergic rhinitis without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. The next higher rating of 30 percent requires evidence of nasal polyps. 38 C.F.R. § 4.97. In every instance where the schedule does not provide a zero percent rating for a Diagnostic Code, a zero percent rating shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Upon review of the evidence of record, the Board finds a compensable rating for allergic rhinitis is not warranted at any time during the appeal period. Here, the evidence does not show that such disability results in a 50 percent blockage of both nasal passages, a complete blockage of one nasal passage, or nasal polyps. Specifically, on VA examination in January 2016, the Veteran reported using Afrin and saline every day and self-administered allergy injections every other day. In pertinent part, the VA examiner found the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis, complete obstruction on either side, permanent hypertrophy of the nasal turbinates, nasal polyps, or a granulomatous condition. Further, the Veteran's allergic rhinitis did not impact his ability to work. In October 2018, the Veteran reported symptoms of constant sneezing, itchy eyes, burning, tired eyes, and constant congestion. Additionally, while the VA examiner noted that a decrease in the ability to breathe efficiently through the nasal passages could result in increased fatigue, and inflammation of nasal passages could result in issues with breathing at night and, thereby, difficulties with sleep, which would also result in fatigue and hypersomnolence, the Veteran has not reported such functional impact. Furthermore, there was no evidence that the Veteran had greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis, complete obstruction on either side, permanent hypertrophy of the nasal turbinates, nasal polyps, or a granulomatous condition on examination. Based on the foregoing, the Board finds that, for the entire appeal period, the Veteran's allergic rhinitis was not manifested by greater than 50 percent obstruction of nasal passage on both sides, complete obstruction on one side, or nasal polyps, which is required for a compensable rating under Diagnostic Code 6522. Thus, in the absence of such symptomatology, a compensable rating for such disability is not warranted under such Diagnostic Code. The Board further finds that a higher or separate rating is not warranted under any other potentially applicable Diagnostic Code. In this regard, in Copeland v. McDonald, 27 Vet. App. 333, 338 (2015), the Court held that when a condition is specifically listed in the rating schedule, it may not be rated by analogy. See also Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating... may be assigned only where the service-connected condition is 'unlisted.'"). Thus, as the Veteran's allergic rhinitis is specifically listed in the Rating Schedule under DC 6522, such disability may not be rated by analogy. Other Considerations In reaching its conclusions in the instant case, the Board acknowledges the Veteran's belief that his bilateral knee disabilities and allergic rhinitis are more severe than as reflected by the assigned disability ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert, supra. Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disabilities. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected disabilities; however, the Board finds that his symptomatology has been stable throughout the appeal. Thus, assigning staged ratings for such disabilities is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claims adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (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). In reaching such determinations, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for increased ratings for his bilateral knee disabilities and allergic rhinitis. Thus, the benefit of the doubt doctrine is not applicable and such claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 4. Entitlement to a compensable rating for scars of the knees. 5. Propriety of the assignment of the separate rating for painful scars associated with the knees, evaluated as 30 percent disabling as of October 12, 2018. 6. Entitlement to a compensable rating for scar, post-operative residuals of left inguinal hernia. In connection with his increased rating claim for his service-connected scars, the Veteran underwent VA examination in January 2016 and October 2018. In January 2016, the VA examiner found the Veteran's single, linear hernia scar was not painful or unstable and measured three centimeters. Additionally, the Veteran had two linear scars located on the right knee, which were well-healed, flesh-colored, nontender, flat, and supple without adherence to deeper tissue. The linear scar on the right anterior knee measured seven centimeters, while the linear scar on the right lateral knee measured five centimeters. On VA examination in October 2018, the VA examiner identified two linear scars on the left knee measuring 8.89 centimeters and 3.175 centimeters, two linear scars on the right knee measuring 8.89 centimeters and 6.35 centimeters, and one linear hernia scar measuring 10 centimeters. The VA examination report also shows the Veteran's reports of pain, tingling, and numbness with the right and left knee scars and pulling and tightness of the lower hernia scar. The VA examiner indicated that three scars were painful but did not identify the specific scars. In addition, the Veteran reported that he experienced dry, cracked skin at times and the VA examiner reported that the Veteran had two unstable scars, with frequent loss of covering of the skin over the scars. Again, the VA examiner did not specifically identify the two unstable scars. Moreover, while the four knee scars and hernia scar were tender to palpation on physical examination, the VA examiner determined none of the scars were unstable upon inspection. Given this lack of clarity and conflicting evidence, the Board finds that a remand is necessary in order to obtain an additional to determine the nature and severity of all service-connected scars. The matters are REMANDED for the following action: Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected left knee scars, right knee scars, and hernia scar. The record, to include a complete copy of this Remand, must be made available to the examiner, and all indicated tests and studies should be accomplished and all clinical findings should be reported in detail. (A) The examiner should indicate the number, location, and size of all left knee, right knee, and hernia scars. (B) The examiner also should identify whether any scar is painful and/or unstable. In doing so, the examiner is asked to clarify the conflicting evidence from the October 2018 VA examination report as to the presence of painful and unstable scars. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.