Citation Nr: 21068618 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 13-12 027 DATE: November 10, 2021 ORDER Entitlement to a rating in excess of 20 percent for a right knee limitation of extension disability is denied. Entitlement to a rating in excess of 20 percent for a left knee limitation of extension disability is denied. Entitlement to a rating in excess of 20 percent for right knee instability is denied. Entitlement to a rating in excess of 20 percent for left knee instability is denied. Entitlement to a rating in excess of 10 percent for a right knee arthritis disability is denied. Entitlement to a rating in excess of 10 percent for a left knee arthritis disability is denied. Entitlement to a 10 percent rating for hypertension is granted. FINDINGS OF FACT 1. The Veteran's right knee limitation of extension is not limited to 20 degrees. 2. The Veteran's left knee limitation of extension is not limited to 20 degrees. 3. The Veteran's right knee is not manifested by severe instability or by unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 4. The Veteran's left knee is not manifested by severe instability or by unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 5. The Veteran's right knee arthritis is not manifested by X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations or by limitation of flexion to 30 degrees. 6. The Veteran's left knee arthritis is not manifested by X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations or by limitation of flexion to 30 degrees. 7. Granting the benefit of the doubt to the Veteran, his hypertension is manifested by systolic pressure predominantly 160 or more. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a right knee limitation of extension disability are not met. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, DC 5261. 2. The criteria for a rating in excess of 20 percent for a left knee limitation of extension disability are not met. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, DC 5261. 3. The criteria for a rating in excess of 20 percent for right knee instability are not met. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, DC 5257. 4. The criteria for a rating in excess of 20 percent for left knee instability are not met. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, DC 5257. 5. The criteria for a rating in excess of 10 percent for a right knee limitation of flexion disability are not met. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, DC 5260. 6. The criteria for a rating in excess of 10 percent for a left knee limitation of flexion disability are not met. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, DC 5260. 7. The criteria for an initial 10 percent rating for hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.2, 4.7, 4.104, DC 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1986 to May 1989 and from July 1989 to June 2007. These matters are on appeal from a July 2009 rating decision by a Department of Veterans Affairs (VA) regional office (RO). These mattes have previously been before the Board, most recently in January 2021 when the matters were remanded for further development. The development has been completed and the matters are again before the Board. Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Veteran. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. These changes apply to the Veteran's claims to increased rating for his left and right knee discussed below. Hypertension Claim The Veteran contends his hypertension is worse than indicated by his noncompensable rating. The Veteran's hypertension is rated under DC 7101. Under DC 7101, a 60 percent rating is appropriate for diastolic pressure predominantly 130 or more, a 40 percent rating is appropriate for diastolic pressure predominantly 120 or more, a 20 percent rating is appropriate for a diastolic pressure predominantly 110 or more or a systolic pressure predominantly 200 or more, and a 10 percent rating is appropriate for a diastolic pressure predominantly 100 or more or a systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. Because the Diagnostic Code specifically mentions medication, the blood pressure measurements described in the Code are measured while the Veteran is on blood pressure medication. The Veteran had an examination for his hypertension in January 2020. The Veteran reported symptoms of dizziness, anxiety, and palpations. The examiner reported the Veteran did not have a history of diastolic blood pressure predominately 100 or more. In January 2019, the Veteran's blood pressure readings were 187/101, 175/96, and 175/97. The Veteran's treatment record is replete with blood pressure readings. However, as stated in Note 1: Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. In these records, most often it does not show the Veteran's blood pressure was taken in accordance with this regulation to show diastolic pressure predominantly 100 or more or that his systolic pressure was predominantly 160 or more. There are a few days where the Veteran's blood pressure was taken twice. In March 2009, repeat BP testing showed the Veteran had readings of 140/90 and 144/85. In April 2009, BP readings were 102/80, 100/82, 100/82. However, records usually indicate the Veteran's diastolic blood pressure did not average over 100 and his systolic pressure has not consistently been shown to be over 160. (See e.g. October 2008, March, September 2009, April 2010, February 2011, February 2015, November 2016, February, August 2019.) The Board has weighted the Veteran's numerous BP readings in his treatment records against the findings of the January 2020 examination where it was noted in January 2019 that his systolic BP readings were well over 160. Granting the benefit of the doubt to the Veteran, the Board will grant a higher 10 percent rating. However, a higher 20 percent rating is not warranted as none of the objective evidence shows the Veteran consistently has diastolic pressure predominantly 110 or more or a systolic pressure predominantly 200 or more. Bilateral Knee Claim As will be indicated below, the evaluation of knee problem is complex. The Veteran contends his bilateral knee disability is worse than indicated by his current disability ratings. The Veteran's knee disabilities are rated under DC 5257, 5260, and 5261. The Veteran's knees are each rated as 20 percent disabling under DC 5257 and DC 5261 and are rated as 10 percent disabling under DC 5003-5260. Prior to and post February 7, 2021, the rating criteria for DC 5260 and DC 5261 remain unchanged. Under DC 5260, a 10 percent rating is warranted for limitation of flexion of the leg to 45 degrees. 20 percent rating is warranted for limitation of flexion of the leg to 30 degrees. A 30 percent rating is warranted for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a. DC 5261 addresses limitation of extension of the leg and provides a noncompensable rating if extension is limited to 5 degrees, a 10 percent rating if extension is limited to 10 degrees, a 20 percent rating if extension is limited to 15 degrees, a 30 percent rating if extension is limited to 20 degrees, a 40 percent rating if extension is limited to 30 degrees, and a 50 percent rating if extension is limited to 45 degrees. Also of consideration is DC 5003. Prior to the regulation changes, this DC applied to arthritis, degenerative (hypertrophic or osteo-arthritis.) As of February 7, 2021, it now applies to degenerative arthritis, other than post-traumatic. However, the rating criteria remains the same. A 10 percent rating is warranted for arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Prior to February 7, 2021, DC 5257 said a 10 percent rating was warranted for slight recurrent subluxation or lateral instability, a 20 percent rating was warranted for moderate recurrent subluxation or latera instability, and a 30 percent rating was warranted for severe recurrent subluxation or lateral instability. After February 7, 2021, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warrant for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. The Board will consider whether the Veteran is entitled to a higher rating under any applicable diagnostic code and will consider whichever rating criteria, whether pre or post February 7, 2021 is most favorable to the Veteran. The Veteran has had multiple examinations for his knees throughout the years. In an April 2009 examination, the Veteran reported intermittent pain on the sides of his right knee two times a day lasting for two hours each time and aching brought on by standing and driving. The examiner noted fatigability of bilateral knees and functional impairment that included difficulty with prolonged standing and walking. The Veteran's bilateral knee flexion was to 140 and extension was normal. The Veteran had another examination for his knees in August 2010. The Veteran reported weakness, giving away, and pain, but didn't experience stiffness, swelling, locking, lack of endurance, fatigability, effusion, subluxation or dislocation. The Veteran also reported flares one time per day lasting five hours. During flare ups, the Veteran experienced limitation of motion and was sometimes unable to standing due to pain. The examiner noted the Veteran's right knee flexion was to 80 degrees, left knee flexion was to 90 degrees with normal extension in both knees. The examiner found not instability or subluxation. The Veteran had an examination for his knees in January 2020. The Veteran reported pain in both knees and difficulty climbing stairs with his knees giving out. The Veteran's bilateral knee flexion was to 70 degrees with normal extension. The Veteran reported difficulties with prolonged sitting, stairs, and climbing ladders. There was no additional loss of range of motion after repetitive use testing. The Veteran did have functional loss, but it did not result in additional loss of range of motion. During a flare up, the examiner estimated the Veteran would not have additional loss of range of motion. The examiner found the Veteran had no ankylosis and no history of recurrent subluxation, lateral instability, or recurrent effusion. The examiner said the Veteran did not use assistive devices. The Veteran had an examination for his knees in February 2021. The Veteran reported that his pain had progressively been getting worse. The Veteran did not have flare ups, but did have functional impairment with pain while walking, going up and down the stairs, and sitting for a long time. The Veteran's bilateral knee flexion was to 90 degrees with normal extension. There was pain on motion. The Veteran had pain on weight bearing but no objective evidence of crepitus. The Veteran was able to perform repetitive use testing but there was no additional loss of range of motion. With functional loss, the Veteran's bilateral knee flexion was limited to 80 degrees but still had normal extension. The Veteran did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. The Veteran most recently had an examination for his knees in July 2021. The examiner noted the Veteran's multiple knee diagnoses and noted the Veteran's symptom of daily ongoing pain that was both dull achy and sharp, stabbing, and throbbing. The Veteran also reported giving out with limited range of motion. The Veteran also reported flare ups with decreased motion and pain. The examiner stated the Veteran had functional loss due to decreased range of motion, fatigue, weakness, and lack of endurance. The Veteran did not have a history of frequent effusion. The Veteran's bilateral knee flexion was to 90 degrees and bilateral knee extension was to 15 degrees when considering the Veteran's functional impairment. The examiner noted pain on motion, weight-bearing, active motion, non-weight-bearing, and passive motion with objective evidence of crepitus and objective pain on palpation. The examiner reported the Veteran was unable to perform repetitive use testing. The examiner estimated that repetitive use over time would further decrease the Veteran's bilateral knee flexion to 45 degrees but would not change the Veteran's bilateral knee extension. The Veteran's bilateral knee flexion was found to be 45 degrees during a flare up and extension to 15 degrees. The examiner stated the Veteran did not have muscle atrophy or ankylosis in either knee, but did have recurrent subluxation or instability in his knee, but no patellar instability. The Veteran did require a prescription for ambulation as he worse braces on both knees. The Veteran's treatment records show a long history of knee treatment. In an April 2009 treatment record, the Veteran was found to have full range of motion with normal extension and flexion to 135 degrees. August 2010 imaging showed a normal right knee. In February 2011, the Veteran's range of motion in his knees was normal. In January 2012, the veteran's left knee flexion was to 110, his right knee flexion was to 120, with normal extension in both knees. The Veteran's symptoms often included pain, crepitus, throbbing, and locking. The Veteran has also reported that the pain is worse with weight bearing. (See e.g. April, September 2009, April 2010, November 2014, January 2015, March 2017, August 2020 treatment records.) In June 2011, the Veteran denied locking of the left knee, but did feel like it got stuck and clicked. The Veteran again denied locking symptoms, but did report giving way during walking in July 2011. The Veteran's symptoms of knees buckling continued into October 2018. In February 2015 and March 2018, the Veteran did not report any falls. The Veteran's knees clearly still bother him and cause him pain. However, the Board did not find objective evidence that the Veteran's knee flexion was so limited as to warrant a higher 20 percent rating or that his extension was so limited as to warrant higher 30 percent evaluation under either applicable diagnostic code. The evidence does not indicate the Veteran's knee flexion was limited to 30 degrees or that his knee extension was limited to 20 degree, even when accounting for painful motion, functional loss, or repetitive motion over time. The Board has also considered whether the evidence indicates the Veteran has knee arthritis sufficient to warrant a higher rating under DC 5003. However, while imaging has shown degenerative changes in the Veteran's knee, the objective evidence does not show the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The Board has also considered whether the Veteran's knee disabilities warrant higher ratings under DC 5257. However, while the evidence clearly shows the Veteran has been prescribed braces for his knees, it does not show the Veteran has any unrepaired or failed repair of ligaments which caused persistent instability and that a medical provider prescribed both an assistive device and bracing for ambulation. The Board has also considered whether the Veteran's knee disabilities warrant a higher rating under the old rating criteria of DC 5257. However, while the Veteran has described buckling of his knees, he has also denied a locking sensation and has also denied falling because the instability in his knees is so bad. Thus, the Board does not find the Veteran's knee instability to rise to the level of "severe" and therefore, a higher rating is not warranted. Regarding all the above, the Board acknowledges the Veteran's statements that his service-connected disabilities cause him problems and affect his daily life. The Board also recognizes that the Veteran continues to seek treatment for his conditions. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters regarding the severity of his complex medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places more probative weight on the cumulative medical evidence of record. This does not mean the Board does not believe the Veteran's knees and hypertension cause him problems. It is clear the Veteran's conditions bother him a great deal, which is the basis for the ratings above. The Veteran now has multiple disability evaluations for his knee issue. The Board can not grant the Veteran more compensation for the same problem addressed in another evaluation. In any event, if his conditions did not cause him problems, there would be no basis for many compensable ratings, or the increased ratings granted in this decision, the only question is the degree. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, however, the Veteran is still working. (See e.g. July 2021 examination.) Therefore, discussion of a TDIU is unnecessary. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.