Citation Nr: 21067643 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-19 061A DATE: November 4, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a right knee disability, status-post meniscectomy, is denied. Entitlement to an initial rating of 20 percent for duodenitis, also claimed as gastroesophageal reflux disease (GERD), stomach condition, and reflux, is granted. REMANDED In addition, the following claims are being remanded to the agency of original jurisdiction (AOJ) for additional development: Entitlement to service connection for left knee degenerative joint disease; Entitlement to service connection for a low back condition; and Entitlement to service connection for radiculopathy of the bilateral lower extremities. FINDINGS OF FACT 1. The Veteran's right knee has manifested in painful motion but does not approximate limitation of motion equivalent to 30 degrees of flexion or less and/or limitation to 10 degrees of extension or more, nor is there evidence of a symptomatic, repaired meniscus. 2. The Veteran's symptoms of duodenitis presented with continuous moderate manifestations. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a right knee strain are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for an initial of 20 percent for duodenitis have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.114, Diagnostic Code 7305, 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from March 2007 to July 2007; from July 2008 to August 2009; and from July 2008 to August 2009. In March 2020, the Veteran testified before the undersigned Veteran's Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. The Veteran's claims were most recently before the Board in June 2020 wherein they were remanded for additional development. This development has been completed and the claims have returned to the Board. In addition to the claims on appeal, the Board remanded the Veteran's claims for service connection for an acquired psychiatric disability, chronic sinusitis, and headaches. These three claims of service connection were granted; thus, the claims are no longer on appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). Here, the Board finds that the ratings have been consistent through the period at issue. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. 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). In addition to the general criteria for increased ratings claims, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Further, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Right Knee Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. While the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant Diagnostic Codes for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, lateral instability and recurrent subluxation of the knee, and meniscal disabilities. The Board will explore all possibilities in this case. Standard range of knee motion is from zero degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. The Veteran's knee is currently rated under Diagnostic Code 5258-5260 for a meniscal tear. Hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C F R § 4.27. The first four numbers reflect the diagnosed disability. The second four numbers after the hyphen identifies the criteria used to evaluate that disability. Under Diagnostic Code 5258, a symptomatic meniscus is described as "locking," pain, and effusion into the joint. Significantly, § 4.71a does not expressly prohibit separate evaluation under DC 5261 and 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017); see also Esteban v. Brown, 6 Vet. App. 259 (1994). Under Diagnostic Code 5260, a 0 percent (noncompensable) disability rating is assigned for flexion limited to 60 degrees, a 10 percent disability rating is assigned for flexion limited to 45 degrees, a 20 percent disability rating is assigned for flexion limited to 30 degrees, and a 30 percent disability rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a 0 percent (noncompensable) disability rating is assigned for extension limited to 5 degrees, a 10 percent disability rating is assigned for extension limited to 10 degrees, a 20 percent disability rating is assigned for extension limited to 15 degrees, a 30 percent disability rating is assigned for extension limited to 20 degrees; a 40 percent disability rating is assigned for extension limited to 30 degrees; a 50 percent disability rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a. When the limitation of motion is non-compensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint (such as the knee) or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. To this end, the Board notes that when the Veteran was originally service-connected for his right knee in the April 2014 rating decision, the rating decision and corresponding code have some contradictory explanations. First, as explained above, the Veteran was service-connected for "right knee, status post meniscectomy" and rated under Diagnostic Code 5258-5260. However, Diagnostic Code 5258 is for a currently torn meniscus, not for a surgically repaired meniscus. Second, the RO assigned a 10 percent rating based on a painful limitation of motion, but did not address whether the Veteran has any symptoms indicating a torn meniscus. Nevertheless, the Board will explore all possibilities in this case. During the pendency of this appeal, VA amended the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a), effective from February 7, 2021. While these amendments did alter the criteria for evaluating knee disabilities generally, none of those amendments impacted how limitation of knee motion is evaluated. Therefore, the Board will not embark on an analysis of the newly applicable rating criteria, as there is no pertinent distinction between the old criteria and the newly amended criteria as they apply to the right knee disability rating. Evidence The Board finds the most probative evidence of record to be the VA examinations of record. The examiners have the medical expertise to assess objective limitations from the Veteran's service-connected disability. Further, the Board finds that the concurrent medical records to not contain any range of motion measurements or reports of flare-ups or functional loss. Thus, the Board gives the VA examinations great probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran's lay statements are consistent with the findings of the VA examinations. The Veteran's first VA examination was February 2014. The Veteran was diagnosed with a right knee meniscal tear, status-post meniscectomy. He reported his right knee was "fine" and that he avoided jump squats and high impact exercises. He did not indicate swelling or giving way, however one year prior he experienced a give way sensation. He did not report any flare-ups. Upon range of motion testing, he had limited flexion to 110 degrees, without pain. The examiner stated that the Veteran's range of motion was only limited due to his body habitus, as he was 325 pounds. In contrast to the earlier statement, the examiner indicated that the Veteran had bilateral knee pain. While the clinician found evidence of a surgically repaired meniscus, the Veteran was not experiencing any residual signs or symptoms. He regularly walked with a cane because of his knee. The remainder of the Veteran's examination was within normal limits. The Veteran's second VA examination was in October 2017. It appears that the clinician only elicited a description of symptomology of the Veteran's left knee, not the right. The findings of this examination closely mirror those of the February 2014 examination, but with pain noted on flexion and without additional functional loss or meniscus symptomology. He again reported no flare-ups, and avoided squatting. The Veteran's most recent VA examination was October 2020. The Veteran reported that his condition had stayed the same since the onset, with pain, but without flare-ups and no functional loss was mentioned. His range of motion had slightly decreased to 0-100 degrees, now with pain on extension and flexion and with tenderness. The clinician estimated the Veteran would have no additional limited motion or functional loss with repeated use over time. As for residuals of the meniscotomy, the clinician found that the Veteran had pain in his knee. The Board has considered the remainder of the medical record. Some contemporaneous notes being a fall risk, whereas others note the opposite. While the Veteran reported knee pain, he repeatedly denied instability and falling. The Veteran testified that he feels that his leg "goes blank" and he could "tumble" because his knee does not respond. Similar statements were submitted from the Veteran's friends and family. However, the Board gives more probative weight to the contemporaneous medical records that do not indicate that the Veteran has experienced recent symptomology that might correspond to a symptomatic meniscus, post-surgery. Analysis In order to warrant a higher or separate rating for his right knee, the Veteran's right knee would need to manifest in symptomology approximating a limitation of 30 degrees flexion and/or 10 degrees extension. Here, the Board does not so find because the findings in the VA examinations of record do not approximate those required for higher or separate ratings. The Veteran did not report flare-ups such that his range of motion would be more limited during those episodes. Thus, the Veteran's right knee would not meet the criteria for a higher 20 percent rating for limitation of flexion (30 degrees) or a separate compensable evaluation for limitation of extension (10 degrees). As stated previously, pursuant to Sharp, VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board has considered the record and does not find that even during flare-ups, the Veteran's range of motion or symptomology would approximate the degree of range of motion lost in order to warrant a higher or separate rating: 70 additional degrees lost for flexion and 10 additional degrees lost for extension. While the Veteran reported pain and some functional loss, flareups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flareups must be of such length as to establish that the overall impairment is more severe than currently evaluated. In this instance, the Veteran's statements made in this case do not show that any flareups or repeated use over time have additionally limited function in a quantifiable way, nor do they show that they are of such length or duration that a higher rating would be warranted. The specific clinical measures of ranges of motion, including examiners' findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran's report of pain and limitation of function. The Board has considered whether a separate compensable rating is warranted under Diagnostic Codes 5258 or 5259. However, there is no evidence that the Veteran has a currently torn meniscus. Further, there is no probative evidence that the Veteran's surgically repaired meniscus is currently symptomatic because there is no evidence of current instability, giving way, or falls. While the Veteran may have pain due to both limited motion and his repaired meniscus, rating pain alone under two different Diagnostic Codes would violate the rule against pyramiding. (Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14). Despite the Veteran's contention of a greater degree of limitation on his knee condition, the disability rating assigned herein indicates a significant impact on his functional ability. Such disability evaluations assigned by VA recognize his painful motion. The critical question in this case, however, is whether the problems he has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for his right knee condition. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Duodenitis with GERD The Veteran is in receipt of an initial 10 percent rating for duodenitis "due to GERD." The Veteran's duodenitis is rated by analogy to 38 C.F.R. § 4.114, Diagnostic Code 7305 for ulcer, duodenal. Pursuant to Diagnostic Code 7305, a 10 percent disability rating is warranted for an ulcer that is mild in severity, with symptoms recurring once or twice yearly. A 20 percent rating is warranted for recurring episodes of severe symptoms two or three times per year averaging 10 days in duration or with continuous moderate manifestations. A 30 percent evaluation is warranted for symptoms that are less than severe, but with impairment of health manifested by anemia and weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration at least four times per year. A maximum 60 percent evaluation is warranted for severe symptoms, with pain only partially relieved by standard ulcer therapy, periodic vomiting, current hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. GERD is often rated by analogy to Diagnostic Code 7346, for hiatal hernia. Pursuant to Diagnostic Code 7346, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum 60 percent evaluation is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. While not defined by regulation, the Board notes the dictionary definitions of those words to help provide context. "Considerable" is defined as "large in extent or degree." Merriam-Webster's Collegiate Dictionary 267 (11th ed. 2012). "Severe" is defined as "very painful or harmful." Id. at 1140. In assigning a rating under Diagnostic Code 7346, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The rating criteria are not successive or cumulative with that of the lower rating. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009); see also Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006) (The Court recognized that disabilities rated by analogy will not show all objective criteria of the analogous rating). Diseases of the digestive system are often analogously rated pursuant to Diagnostic Code 7346. In accordance with 38 C.F.R. § 4.114, ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Evidence The Veteran's first VA examination was in October 2015. The examiner assessed the diagnoses of GERD and hiatal hernia. The Veteran reported that he had been using medications without improvement and his main symptom was reflux. No other symptoms were elicited. The Veteran had two examinations in October 2020. The first reviewed the Veteran's GERD. The Veteran explained that he had modified his diet to reduce symptoms, as well as bought a reclining bed and had been taking medications. He reported symptoms of reflux with a burning sensation that impacts his sleep, as well as feelings of nausea. The clinician assessed symptoms of pyrosis and reflux. Further, the clinician noted that the Veteran had episodes of sleep disturbance and nausea that occurred 4 or more times per year, but lasted less than a day. The clinician did not render an opinion on the level of the severity of the symptoms. The second examination reviewed the Veteran's duodenitis. The Veteran reported he managed his condition with conservative treatment to include medications. The examiner reported that the Veteran's recurring symptoms were not severe, but only noted the Veteran's nausea as mild. The Veteran's nausea occurred 4 or more times per year, but lasted less than a day. He had abdominal pain, that was periodic and relieved by standard ulcer therapy. The remainder of the medical record is less probative than the VA examinations and the Veteran's statements. The Veteran testified that he experiences difficulty sleeping, regurgitation, difficulty swallowing, burping, and some pain in his chest. Similar statements were submitted from the Veteran's friends and family. However, the Board gives more probative weight to the contemporaneous medical records that are competent to relate the relative severity of the symptoms. Analysis Given the above, the Veteran's duodenitis with GERD manifested in two or more symptoms for the 30 percent evaluation of less severity throughout the appeal period, corresponding to the criteria for a 10 percent rating under Diagnostic Code 7346. The Board finds that the Veteran exhibited dysphagia/dyspepsia, pyrosis, and reflux. However, the Board does not find that the criteria for a higher rating is warranted under Diagnostic Code 7346. A higher 30 percent rating under Diagnostic Code 7346 is not warranted unless the symptoms were productive of considerable impairment of health. At most, the Board finds the Veteran's symptoms to be moderate; thus, they were not "considerable": "large in extent or degree." Merriam-Webster's Collegiate Dictionary 267 (11th ed. 2012). Further, while the Veteran reported substernal pain, this is not frequently documented in the Veteran's treatment records. Further, the criteria for the maximum 60 percent evaluation are not met because there is no probative evidence of vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. As for a higher rating under Diagnostic Code 7305, a 20 percent rating is warranted for recurring episodes of severe symptoms two or three times per year averaging 10 days in duration or with continuous moderate manifestations. In interpreting this broadly, and in the light most favorable to the Veteran, the Board finds the Veteran's duodenitis manifested in continuous moderate manifestations because his sleep was so interrupted that he had to buy a special bed. Thus, the criteria for a 20 percent rating have been met under Diagnostic Code 7305. However, the Board does not find that a rating in excess of 20 percent to be met. There is no evidence of recurrent incapacitating episodes nor the symptoms or objective findings required for a higher 60 percent rating. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran sought some treatment for his duodenitis and GERD, the severity of the symptoms did not reflect a considerable or severe impairment of health. Thus, for the foregoing reasons, a rating of 20 percent for service-connected duodenitis with GERD have not been met, but no higher. Thus, the claim is granted. There is no doubt to resolve. REASONS FOR REMAND 3. Entitlement to service connection for a left knee degenerative joint disease is remanded. 4. Entitlement to service connection for a low back condition is remanded. 5. Entitlement to service connection for radiculopathy of the bilateral lower extremities is remanded. The Veteran contends that during his last deployment, in late August 2008, he fell from a truck and his legs and feet twisted up causing ankle, back, and knee injuries, which continued through service to the present. Alternatively, he contends that his right knee caused these problems or that his service-connected conditions caused him to gain weight thus causing or aggravating these problems beyond their natural progression. The Veteran specifically contended that the medicine for his acquired psychiatric disability caused weight gain. The Board requested opinions on all of these theories, but finds only the opinion related to obesity/weight gain to be inadequate. The October 2020 clinician stated that the Veteran's left knee and back condition were more likely not caused by age and obesity. Later in the same opinion, the clinician stated that it is less likely than not that the any service-connected condition caused or aggravated the Veteran's obesity because the conditions followed a natural progression and may coexist with obesity. Regarding the Veteran's acquired psychiatric disability, the Veteran was not yet service-connected for that condition so the clinician did not address the impact of that medication on weight gain. Given that the Veteran is now service-connected for an acquired psychiatric disability, there is no adequate medical opinion addressing his contention that his psychiatric prescription caused or aggravated obesity. Thus, a remand is needed. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the Veteran's obesity. An in-person examination is not required unless deemed necessary and appropriate by the clinician. The clinician should answer the following questions: a. Whether any psychiatric prescription taken by the Veteran can cause or aggravate weight gain, which can lead to obesity? b. Is it at least as likely as not that the Veteran's left knee condition was caused by obesity? c. Is it at least as likely as not that the Veteran's low back condition was caused by obesity? d. Is it at least as likely as not that the Veteran's left knee condition was aggravated by obesity, such that the condition would not have occurred without obesity? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. e. Is it at least as likely as not that the Veteran's back condition was aggravated by obesity, such that the condition would not have occurred without obesity? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.