Citation Nr: 21073679 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 14-42 354 DATE: December 9, 2021 ORDER Service connection for gastroesophageal reflux disease (GERD) is denied. An increased rating of 20 percent, and no higher, for the left knee disability from December 28, 2009 to April 21, 2017 is granted. An increased rating higher than 20 percent for the left knee disability from April 21, 2017 to September 9, 2020 is denied. An increased rating higher than 30 percent for the left knee disability from September 9, 2020, forward, is denied. A separate 10 percent rating for left knee instability from December 28, 2009 forward is granted. FINDINGS OF FACT 1. There was no gastrointestinal injury or disease during service; GERD was manifested many years after service separation and is not causally or etiologically related to service. 2. From December 28, 2009 to April 21, 2017, the left knee disability was manifested by arthritis and a history of left knee meniscal surgery with residual symptoms of chronic left knee pain, swelling, and some stiffness. 3. From April 21, 2017 to September 9, 2020, the left knee disability was manifested by arthritis with range of motion from 0 to 110 degrees, and a history of left knee meniscal tear and meniscal surgery with residual symptoms of frequent episodes of joint locking and knee pain. 4. From September 9, 2020 forward, the left knee disability was manifested by arthritis with left knee extension limited to 20 degrees after considering functional loss after repetitive use and during a flare-up. 5. From December 28, 2009 forward, the left knee disability has also been manifested by subjective complaints of instability with no instability objectively shown. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD are not met or approximated. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for an increased rating of 20 percent, and no higher, for the left knee disability have been met from December 28, 2009 to April 21, 2017. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5258. 3. The criteria for an increased rating higher than 20 percent for the left knee disability have not been met or approximated from April 21, 2017 to September 9, 2020. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5010-5258. 4. The criteria for an increased rating higher than 30 percent for the left knee disability have not been met or approximated from September 9, 2020 forward. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5261. 5. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate 10 percent disability rating for the left knee instability have been met for the entire rating period from December 28, 2009 forward. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from June 1987 to March 1990. This matter is on appeal from February 2010 and February 2012 rating decisions. On the December 2014 VA Form 9, the Veteran requested a Travel Board hearing in connection with the appeal; however, in August 2016, he withdrew the hearing request. In March 2021, the Board, in pertinent part, remanded the service connection appeal for GERD for a VA examination with a medical opinion. The Board also remanded the increased rating appeals for the left knee disability for additional private treatment records and another VA examination. In May 2021, a VA examination with a medical opinion was provided for the service connection appeal for GERD, as well as a VA examination for the increased rating appeals for the left knee disability. In July 2021, additional private treatment records were received, and the appeals were readjudicated. Because the ordered development has been accomplished, the Board finds that there was compliance with the prior remand directives. The Board finds that the duties to notify and assist the Veteran in this case have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Holton v. Shinseki, 557 F. 3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because the current diagnosis of GERD is not listed as a chronic disease under 38 C.F.R. § 3.303(b), the presumptive service connection provisions are not applicable. 1. Service connection for GERD is denied. The Veteran contends that symptoms of the current GERD were manifested during service and continued thereafter. After review of all the lay and medical evidence of record, the Board finds that gastrointestinal symptoms were manifested during active service. During service, the Veteran received treatment for gastrointestinal symptoms such as abdominal pain, nausea, and vomiting at various times from February 1988 to September 1989. Service medical providers attributed the symptoms to diagnoses of probable viral syndrome, a mild upper respiratory infection with pleurodynia, viral gastritis, and gastroenteritis. There was no diagnosis of or treatment for a chronic gastrointestinal disability during service, including GERD. The weight of the evidence is against finding that GERD is causally or etiologically related to service. The earliest evidence of GERD is shown in 2000, 10 years after service separation. At that time, the Veteran reported a recent onset of a burning sensation in the upper chest and throat area with a nasty taste in the mouth, and made no mention of service. See June 2000 private treatment note (wherein a medical provider opined that the symptoms described were suggestive of GERD). Statements made for treatment purposes are deemed particularly trustworthy because an individual has an incentive to report accurately the history of symptoms and impairment to receive proper care. Considered together with the absence of report, diagnosis, or treatment for a chronic gastrointestinal disability, including GERD, during service, and the Veteran's 2000 account that GERD symptoms had a recent onset, the gap of approximately 10 years between service and diagnosis of GERD is one factor that tends to weigh against a finding of service incurrence. Although the Veteran has alleged during the appeal that GERD symptoms had their onset during service and have continued since service, the account is inconsistent with other, more credible lay and medical evidence closer in time to service showing no chronic gastrointestinal disability until 2000, so the account is not credible and is of no probative value. Additionally, after review of the record and interview and examination of the Veteran, the May 2021 VA examiner opined that the current GERD was not incurred in or related to service. In support of the medical opinion, the May 2021 VA examiner reasoned that there were no subjective complaints of GERD during active service, no objective diagnosis of GERD during active service, and no objective continuity of care for GERD since service. The May 2021 VA examiner noted that GERD is not physiologically caused by an event or injury. The May 2021 VA examiner reiterated that, given the above, GERD diagnosed many decades after military service did not originate in service and was not related to any events, injury, subjective complaints, objective diagnosis, and/or treatment in service. The May 2021 VA examiner had accurate facts and data on which to base the medical opinion and provided sound rationale for the medical opinion; therefore, the Board finds the May 2021 VA medical opinion to be of significant probative value. There is no competent medical opinion to the contrary of record. The Veteran is competent to report any gastrointestinal symptoms that come to him through the senses, and he served as a medical corpsman during service; however, under the specific facts of this case that include no GERD symptoms in service and a 10-year gap between service and the post-service onset of GERD symptoms and GERD diagnosis, the Veteran does not have the requisite medical expertise to diagnose GERD, which was manifested many years after service, or render a competent medical opinion regarding its cause. A competent medical diagnosis of GERD involves making findings based on history, complaints and symptoms, signs, medical knowledge, and, in some cases, clinical testing results. The Veteran is not competent to diagnose GERD or provide a medical opinion regarding its likely etiology when the credible evidence shows that GERD was manifested many years after service; therefore, the Veteran's purported lay opinion that GERD is related to service is of no probative value. The unsupported lay opinion is outweighed by the lay and medical evidence showing that GERD was manifested many years after service separation and is otherwise unrelated to service. Thus, the weight of the evidence is against a finding that GERD was incurred in or was otherwise caused by active service. In consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence weighs against the appeal of service connection for GERD; consequently, the appeal must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Legal Authority Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 2. An increased rating of 20 percent, and no higher, for the left knee disability from December 28, 2009 to April 21, 2017 is granted. For the increased rating period from December 28, 2009 to April 21, 2017, the service-connected left knee disability is rated at 10 percent under the criteria at 38 C.F.R. § 4.71a, hyphenated DC 5010-5259, for traumatic arthritis with residual removal of symptomatic semilunar cartilage. Under DC 5259, a maximum 10 percent rating is provided for removal of symptomatic semilunar cartilage. 38 C.F.R. § 4.71a. Because the Veteran is already in receipt of the maximum 10 percent rating under DC 5259, a higher rating is not available under DC 5259. Moreover, because the 10 percent rating under DC 5259 for the left knee disability was in effect for at least 20 years continuously (i.e., effective from September 25, 1985), it is a protected rating. Nevertheless, it is proper to award the highest rating that compensates the Veteran for any increased symptoms. This award for the protected disability and its increased symptoms can be made under a single, diagnostic code that best describes the symptoms and maximizes the benefits for the Veteran, even if the diagnostic code is different from the diagnostic code on which the original, protected disability was rated. 38 C.F.R. §§ 4.1. After review of all the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the rating criteria for a 20 percent rating under DC 5010-5258 are met from December 28, 2009 to April 21, 2017. In this case, the January 2010 VA examination report shows a history of left knee meniscal surgery with residual symptoms of chronic left knee pain, swelling, and some stiffness. See also May 2006 VA examination report (noting left knee symptoms of occasional swelling, locking, and pain with a history of meniscal tear). The September 2014 VA examination report similarly shows a history of left knee meniscal tear and a post-operative meniscectomy with residual symptoms of chronic left knee joint pain and swelling. DC 5258 provides a maximum 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the 20 percent rating criteria under DC 5258 for the right knee disability are met from December 28, 2009 to April 21, 2017. The rating criteria under DCs 5258 and 5259 differ from each other only in that the semilunar cartilage is dislocated in DC 5258 and surgically absent in DC 5259. DC 5258 requires dislocation of the semilunar cartilage with symptoms of frequent joint "locking," pain, and effusion, and DC 5259 requires removal of the semilunar cartilage that is symptomatic; therefore, DCs 5258 and 5259 overlap with each other in symptoms of pain, effusion, and locking, but not as to dislocation or surgical absence. Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (stating that the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition). Allowing continuation of a separate rating for the same overlapping manifestations (meniscectomy with residual symptoms of chronic pain, swelling, and locking), of the left knee disability under DC 5259 would constitute impermissible pyramiding. 38 C.F.R. § 4.14. A rating higher than 20 percent for the left knee disability is not warranted from December 28, 2009 to April 21, 2017 under any other potentially applicable diagnostic codes. At the September 2014 VA examination, the left knee disability was manifested by limitation of extension to 10 degrees after consideration of functional loss due to pain, which is consistent with the 10 percent rating criteria under DC Code 5261; however, separate ratings cannot be assigned under both DCs 5258 and 5261 because to do so would violate the prohibition against pyramiding. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. DCs 5258 and 5261 both rate based on limitation of motion and knee pain, as a cause of limitation of motion. In the case of DC 5258, limitation of motion is reflected by the symptoms or findings of pain, locking, and effusion into the joint. See also Firestein, Kelley's Textbook of Rheumatology 571 (9th ed. 2012) ("locking" is the sudden loss of ability to extend the knee and is usually painful and may be associated with an audible noise, such as a click or pop). In the case of DC 5261, such limitation of motion is encompassed by the limitation of extension, including limitation of motion due to pain. Both diagnostic codes overlap in "locking" as a form of limitation of motion that is usually accompanied by pain; therefore, the diagnostic codes both rate based on knee pain and limitation of motion due to pain. See DeLuca; 38 C.F.R. §§ 4.40, 4.45, 4.59. If the Board were to grant separate ratings under both DC 5258 and 5261, the Veteran would receive compensation under two different codes for the same manifestations of pain and limitation of motion, which would constitute impermissible pyramiding. 38 C.F.R. § 4.14. For these reasons, the Veteran is not entitled to separate disability ratings under both DC Code 5258 and 5261 for the painful limitation of motion, here, extension, associated with the knee disability. DC 5256 allows for higher potential ratings (with a maximum 60 percent rating) for ankylosis. The evidence shows no left knee ankylosis; therefore, DC 5256 does not apply. Also, the evidence shows no genu recurvatum, and the maximum disability rating under DC 5263 is 10 percent; therefore, a separate or higher rating under DC 5263 for genu recurvatum is not warranted. DC 5262 does not apply as the evidence does not demonstrate impairment of the tibia or fibula, specifically malunion or nonunion. During the period at issue, the left knee disability has been manifested by limitation of flexion to 90 degrees after consideration of limiting factors such as pain resulting in functional loss, which is consistent with a noncompensable rating under DC 5260; therefore, a separate rating (or increase in rating) under DC 5260 is not warranted for any part of the appeal period. 3. An increased rating higher than 20 percent for the left knee disability from April 21, 2017 to September 9, 2020 is denied. For the entire increased rating period from April 21, 2017 to September 9, 2020, the left knee disability is rated at 20 percent under the criteria at 38 C.F.R. § 4.71a, hyphenated DC 5010-5258 for traumatic arthritis with residual dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Under DC 5258, a maximum 20 percent rating is provided for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. Because the Veteran is already in receipt of the maximum 20 percent rating under DC 5258, a higher rating is not available under DC 5258. A rating higher than 20 percent for the left knee disability is not warranted from April 21, 2017 to September 9, 2020 under any other potentially applicable diagnostic codes. At the April 2017 VA examination, the left knee disability was manifested by flexion to 110 degrees and extension to 0 degrees, including after consideration of functional loss due to pain, which does not meet the compensable rating criteria under DC 5260 or DC 5261. Moreover, separate ratings cannot be assigned under both DCs 5258 and 5261 or both DCs 5258 and 5260 because to do so would violate the prohibition against pyramiding. 38 C.F.R. § 4.14. The explanation above addressing why separate ratings for DCs 5258 and 5261 are not warranted similarly explains why separate ratings for DCs 5258 and 5260 are not warranted. DC 5256 allows for higher potential ratings (with a maximum 60 percent rating) for ankylosis. The evidence shows no left knee ankylosis; therefore, DC 5256 does not apply. Also, the evidence shows no genu recurvatum, and the maximum disability rating under DC 5263 is 10 percent; therefore, a separate or higher rating under DC 5263 for genu recurvatum is not warranted. DC 5262 does not apply as the evidence does not demonstrate impairment of the tibia or fibula, specifically malunion or nonunion. 4. An increased disability rating higher than 30 percent for the left knee disability from September 9, 2020 forward, is denied. For the entire increased rating period from September 9, 2020 forward, the left knee disability is rated at 30 percent under the criteria at 38 C.F.R. § 4.71a, DC 5261. DC 5261 provides for a 30 percent rating for extension limited to 20 degrees, a 40 percent rating for extension limited to 30 degrees, and a 50 percent rating for extension limited to 45 degrees. 38 C.F.R. § 4.71a. Normal range of motion for the knee is from 140 degrees flexion to 0 degrees extension. 38 C.F.R. § 4.71, Plate II. After review of all the lay and medical evidence of record, the Board finds that the evidence weighs against finding that the criteria for an increased rating higher than 30 percent under DC 5261 for the left knee disability are met or approximated for any period. Throughout the increased rating period, the left knee disability was manifested by left knee extension limited to 20 degrees after considering functional loss after repetitive use over time and during a flare-up, which is consistent with the 30 percent rating criteria under DC 5261. Because the left knee extension is not shown to be limited to 30 degrees, an increased rating higher than 30 percent under DC 5261 for the left knee disability is not warranted for any period from September 9, 2020, forward. Additionally, because there is no limitation of left knee flexion to a compensable (10 percent) degree during the period, a separate rating under DC 5260 for limitation of left knee flexion is not warranted in this case (separate from a rating under DC 5260). See VAOPGCPREC 9-2004. DC 5256 allows for higher potential ratings (with a maximum 60 percent rating) for ankylosis. The evidence shows no left knee ankylosis; therefore, DC 5256 does not apply. Also, the evidence shows no genu recurvatum, and the maximum disability rating under DC 5263 is 10 percent; therefore, a separate or higher rating under DC 5263 for genu recurvatum is not warranted. DC 5262 does not apply as the evidence does not demonstrate impairment of the tibia or fibula, specifically malunion or nonunion. The explanation above addresses why separate compensable ratings under DCs 5258 and 5259 are not warranted. 5. A separate 10 percent rating for left knee instability for the entire rating period is granted. The former DC 5257, which is applicable for the rating period at issue, provides for a 10 percent rating when there is evidence of slight impairment of the knee manifested by recurrent subluxation or lateral instability, a 20 percent rating for moderate impairment of the knee manifested by recurrent subluxation or lateral instability, and a 30 percent rating for severe impairment of the knee manifested by recurrent subluxation or lateral instability. 38 U.S.C. § 4.71a. In addition to the symptoms discussed above, review of the evidence of record reflects that the left knee disability has also been manifested by subjective complaints of instability with no instability objectively shown at VA examinations. See, e.g., January 2010 VA examination report (noting the Veteran's report of left knee instability); May 2021 VA examination report (noting that the Veteran reported regular use of a knee brace). The Veteran's competent report of left knee instability is sufficient evidence of lateral instability. See English v. Wilkie, 30 Vet. App. 347 (2018). In consideration of the foregoing, and given the history of normal joint stability testing, the Board finds that the left knee disability is manifested by no more than slight lateral instability; therefore, resolving reasonable doubt in favor of the Veteran, a separate rating of 10 percent under DC 5257 for slight lateral instability for the left knee is warranted for the entire rating period. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The separate 10 percent rating under DC 5257 for slight left knee disability does not violate the prohibition against pyramiding because instability is not contemplated by the 20 percent disability rating currently assigned under DC 5258 from December 28, 2009 to September 9, 2020, or the 30 percent rating currently assigned under DC 5261 from September 9, 2020, forward. See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261. E. BLOWERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.