Citation Nr: 21071391 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-50 104A DATE: November 30, 2021 ORDER Entitlement to a compensable rating for hypertension is denied. Entitlement to an increased rating in excess of 10 percent for osteoarthritis, right knee is denied. REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran's hypertension does not manifest as diastolic pressure predominantly 100 mm or more, as systolic pressure predominantly 160 mm or more, or with a history of diastolic pressure predominantly 100 mm or more requiring continuous medication for control. 2. The evidence demonstrates that the right knee osteoarthritis has been manifested at worst, by range of motion from 0 to 85 degrees, with pain on palpation, no meniscal condition, no instability on testing, no subluxation, and no ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability rating for the Veteran's hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7101. 2. The criteria for entitlement to an increased rating in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to March 1993. This matter comes to the Board of Veterans' Appeals from an August 2013 rating decision of the Department of Veterans Affairs. In January 2020, the Veteran testified at a Board hearing. The claims were remanded for further development in April 2020. In August 2021, the Veteran was notified that the Veterans Law Judge (VLJ) who conducted that hearing is no longer with the Board and was offered opportunity for another hearing (but did not accept). Increased Rating 1. Entitlement to a compensable rating for hypertension Legal Criteria Rating Disabilities in General Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's hypertension has been assigned a noncompensable (0 percent) rating under Diagnostic Code 7101. Under Diagnostic Code 7101, a higher 20 percent evaluation is warranted where diastolic blood pressure is predominantly 110 or more, or systolic blood pressure is predominantly 200 or more. 38 C.F.R. § 4.104. Under that Diagnostic Code 7101, a 10 percent evaluation is warranted when diastolic pressure is predominately 100 or more; when systolic pressure is predominately 160 or more; or when an individual with a history of diastolic pressure predominantly 100 or more, who requires continuous medication for control. A 20 percent evaluation is warranted when diastolic pressure is predominately 110 or more, or when systolic pressure is predominately 200 or more. A 40 percent disability rating requires that diastolic pressure be predominantly 120 or more. A 60 percent evaluation is warranted when diastolic pressure is predominantly 130 or more. The Veteran was afforded VA examinations to assess the nature and severity of his service-connected hypertension in June 2013. Upon examination, the Veteran's three blood pressure readings were recorded at: (1) systolic blood pressure of 135 and diastolic blood pressure of 89 - i.e., 135/89; (2) 141/93; and (3) 140/96, and an average blood pressure of 143/93. In December 2020, the Veteran was again afforded another VA examination to assess the nature and severity of his hypertension. On examination the Veteran's blood pressure readings were recorded of 138/82; 130/88; and 130/90, and an average blood pressure of 132/87. The examiner noted that while the Veteran's condition did require medication to control, there was no evidence that the Veteran had a history of diastolic pressure in excess of 100. No additional symptoms or manifestations were noted by the examiner at that time. Diagnostic Code 7101 explicitly notes that the evidence must demonstrate a systolic blood pressure of "predominantly" 160 or above. The Board finds that a single instance of a reading in excess of 160, does not represent "predominant", especially in light of the surrounding blood pressure readings, of which there are myriad, that all demonstrate readings under 160. Therefore, as the preponderance of evidence is against the finding the Veteran's blood pressure has been predominantly 160 (systolic) and 100 (diastolic) or more, the Board must find that a compensable rating is not warranted. Furthermore, while the Veteran's hypertension requires continuous medication, Diagnostic Code 7101 does not authorize a minimum 10 percent compensable rating unless he is also "an individual with a history of diastolic blood pressure predominantly 100 or more..." The record supports the conclusion of both VA examinations that the Veteran's systolic blood pressure has predominantly been below 100. Accordingly, an increased compensable rating for hypertension is not warranted, as the preponderance of the evidence is against any finding that the Veteran's blood pressure was predominately over 160 for systolic pressure, or over 100 for diastolic pressure. As such, the Veteran's claim for a compensable rating prior to February 5, 2020, must be denied. 2. Entitlement to an increased rating in excess of 10 percent for osteoarthritis, right knee Rating Musculoskeletal Disabilities Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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 and 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. Id. § 4.45. However, pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). The Veteran contends that he is entitled to an increased rating in excess of 10 percent disabling for his service-connected right knee disability, as his symptoms more nearly approximate the criteria for a higher rating. Degenerative or traumatic arthritis 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 however, the limitation of motion of the specific joint or joints 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, to be combined, not added under Diagnostic Code 5003. 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, a 10 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5024. Flexion and Limitation of the Lower Extremity Diagnostic Code 5260 provides a noncompensable rating when leg flexion is limited to 60 degrees or more. A 10 percent rating is warranted for leg flexion limited to 45 degrees. A 20 percent evaluation is for leg flexion limited to 30 degrees. A 30 percent evaluation is for leg flexion limited to 15 degrees. Diagnostic Code 5261 provides a noncompensable rating when extension is limited to 5 degrees or less. A 10 percent rating is warranted for leg extension limited to 10 degrees. A 20 percent evaluation is for leg extension limited to 15 degrees. A 30 percent evaluation is for leg extension limited to 20 degrees. A 40 percent evaluation is for leg extension limited to 30 degrees. A 50 percent evaluation is for leg extension limited to 45 degrees. In VAOPGCPREC 9 - 2004 (Sept. 17, 2004), it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. As such, if the evidence of record reflects compensable loss of both flexion and extension of either leg, the Veteran would be entitled to the combined evaluation under Diagnostic Codes 5260 and 5261, per the combined ratings table in 38 C.F.R. § 4.25. Instability of the Knee Instability of the knee and limitation of motion of the knee are two separate disabilities. As such, it is permissible to award separate ratings under both a range of motion code and an instability code (Diagnostic Code 5257), without violating the prohibition on pyramiding. See VAOPGCPREC 23-97. Diagnostic Code 5257 is predicated on instability, rather than limitation of motion, therefore, an analysis under DeLuca does not apply. See Johnson v. Brown, 9 Vet. App. 7 (1996). Under Diagnostic Code 5257, for recurrent subluxation or lateral instability of the knee, a 10 percent evaluation is warranted for slight knee impairment. A 20 percent evaluation is warranted for moderate knee impairment. A 30 percent evaluation is warranted for severe knee impairment. Words such as "mild", "slight", "moderate", "marked", and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran underwent a June 2013 VA examination. The physical examination showed the following range of motion measurements for the right knee: flexion from 0 to 140 degrees and extension from 140 to 0 degrees. There was no additional functional loss following repetitive testing. The examiner noted no objective evidence of painful motion. No ankylosis or instability was shown on examination. Further, the examiner noted the Veteran's right knee with no meniscal condition or dislocation. The Veteran underwent a December 2020 VA examination. The physical examination showed the following range of motion measurements for the right knee: flexion from 0 to 85 degrees and extension from 85 to 0 degrees, at worst. There was no additional range of motion loss following repetitive testing. The examiner noted objective evidence of painful motion. No ankylosis or instability was shown on examination. Based on a review of the evidence, a rating in excess of 10 percent under Diagnostic Code 5260 is not warranted. A 10 percent rating is warranted for leg flexion limited to 45 degrees. The Veteran's right leg flexion is limited at 85 degrees, at worst, due to pain. The Veteran is currently is receipt of 10 percent for limitation of motion (painful motion). As the Veteran's right knee flexion is not limited to 30 degrees or less, a rating in excess of 10 percent is not warranted. Furthermore, a separate, compensable rating under Diagnostic Code 5261 is not applicable. A 10 percent rating is warranted for leg extension limited to 10 degrees. The Veteran's right leg has shown not to be limited in extension. As such, the Veteran is not entitled to a compensable rating based on Diagnostic Code 5261. Additionally, a rating under Diagnostic Code 5256 is not for application because the evidence of record is against a finding of ankylosis. Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet. App. 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (28TH Ed. 1994) at 86). The medical evidence reflects that the Veteran's right knee, at worst, has range of motion from at least 0 to 90 degrees in regard to flexion, and the evidence is against a finding of ankylosis; thus, a rating under Diagnostic Code 5256 is not warranted. The Veteran would be entitled to a rating under Diagnostic Code 5257 if the evidence reflected that he had severe, moderate, or slight recurrent subluxation or lateral instability. Joint instability can be objectively diagnosed upon clinical examination. Thus, even if the Veteran sincerely believes that his knee experiences stability, instability itself, can be clinically tested for and diagnosed. Thus, the Board finds the objective testing reflecting no instability or subluxation probative in this instance. As such, a rating under this diagnostic code is not applicable. A rating under Diagnostic Code 5258 is not warranted because the evidence does not reflect dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Additionally, a rating under Diagnostic Code 5259 is not warranted because the evidence does not reflect the Veteran with a meniscal condition. A rating under Diagnostic Code 5262 is not warranted because the evidence does not reflect that the Veteran has malunion or nonunion of the tibia and fibula. A rating under Diagnostic Code 5263 is not warranted because the evidence does not show that he has acquired genu recurvatum. In reaching these determinations, the Board acknowledges the Veteran's functional limitations on standing, walking, and the effect on his occupation due to the pain associated with his right knee disability, to include during flare-ups. However, pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). VA medical examinations note the Veteran's right knee disability functional effect as decrease mobility. However, limited mobility/decrease range of motion is appropriately contemplated within the criteria. As such, the Board does not find that an increased rating is warranted for the Veteran's noted functional loss in excess of the provided 10 percent already granted for painful and limited motion. In addition to the clinical findings, the Board has also considered the Veteran's statements regarding his pain and weakness. However, the Board finds that the Veteran's listed disability symptoms do not warrant any additional increased ratings at this time as his impairments are contemplated in the currently assigned ratings. In conclusion, based on the objective clinical evidence, to include the Veteran's subjective complaints, the Board finds that an increased rating in excess of 10 percent disabling for right knee osteoarthritis is denied. REASONS FOR REMAND 1. Entitlement to service connection for a back condition is remanded. The Veteran was provided a VA examination for the above claim in December 2020. The examiner concluded that the Veteran's complaint and/or reported symptomatology for the above issue is less likely as not related to military service. The VA examiner simply stated that there is no pathological evidence that the Veteran's current back condition is related to his in-service back injury. However, the examiner failed to discuss the Veteran's lay statements regarding his back pain chronicity and whether the Veteran's current back condition could be a result of a traumatic injury. As such, a supplemental opinion is necessary prior to adjudicating the issue on appeal. 2. Entitlement to service connection for a left knee condition is remanded. 3. Entitlement to service connection for sleep apnea is remanded. The Veteran was provided VA examinations for the above claims in December 2020. The examiner concluded that the Veteran's complaint and/or reported symptomatology for the above issues are less likely as not related to military service. The VA examiner seemed to base the unfavorable conclusions on the mere absence of in-service diagnosis or treatment records for the claimed conditions. In so doing, the examiner failed to discuss relevant medical treatment records, medical literature (with regards to the claimed conditions), and the Veteran's credible lay statements. An opinion based on the absence of treatment records without consideration of a Veteran's competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007. The Board notes that the December 2020 examiner incorrectly noted that the Veteran's in-service records are absent for a left knee injury, A review of the claims folder reflects the Veteran experienced a left knee injury resulting in pain, tenderness, and mild edema. (See February 1986 Radiologic Consultation request/Report). When a VA medical opinion is provided to the Board; that opinion must support its conclusion with an analysis that the Board can consider and weigh. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As such, the Board finds the December 2020 opinions to be inadequate and must remand for supplemental opinions discussing the examiner's determination, which considers the entire claims folder, to include the Veteran's lay statements. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, the claims must be remanded to obtain adequate etiological opinions. The matters are REMANDED for the following action: 1. Request the appellant to identify all medical providers (VA and private) from whom he has received treatment for his claimed condition, and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records, for each medical treatment provider identified. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records and associate them with the claims file. 2. Schedule the Veteran for an examination (or telehealth interview, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran's claimed black condition. After reviewing the claims file, the examiner is requested to address: Whether it is at least as likely as not (50 percent probability or more) that the Veteran has any back condition that is related to his military service, and Whether it is at least as likely as not (50 percent probability or more) that the Veteran has any back condition that is related to, or aggravated by, their service-connected right knee disability. In providing the requested opinions, the examiner must consider and discuss the Veteran's lay statements regarding the onset and progression of the claimed conditions. A complete rationale for any opinion expressed must be provided. 3. Schedule the Veteran for an examination (or telehealth interview, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran's claimed left knee condition. After reviewing the claims file, the examiner is requested to address: Whether it is at least as likely as not (50 percent probability or more) that the Veteran has any left condition that is related to his military service, and Whether it is at least as likely as not (50 percent probability or more) that the Veteran has any left knee condition that is related to, or aggravated by, their service-connected right knee disability. In providing the requested opinions, the examiner must consider and discuss the Veteran's lay statements regarding the onset and progression of the claimed conditions. A complete rationale for any opinion expressed must be provided. 4. Schedule the Veteran for an examination (or telehealth interview, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran's claimed sleep apnea. After reviewing the claims file, the examiner is requested to address: Whether it is at least as likely as not (50 percent probability or more) that the Veteran has sleep apnea that is related to his military service, and Whether it is at least as likely as not (50 percent probability or more) that the Veteran has sleep apnea that is related to, or aggravated by, their service-connected disabilities, to include medications used to treat their service-connected disabilities. In providing the requested opinions, the examiner must consider and discuss the Veteran's lay statements regarding the onset and progression of the claimed conditions. A complete rationale for any opinion expressed must be provided. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brandon A. Williams, 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.