Citation Nr: 21073713 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 16-57 155 DATE: December 10, 2021 ORDER Entitlement to an initial 10 percent rating, but no higher, for hypertension is granted from December 1, 2014. Entitlement to an initial compensable rating for erectile dysfunction is denied. Entitlement to an initial compensable rating for allergic rhinitis is denied. Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis is denied. Entitlement to an initial rating in excess of 10 percent for left knee osteoarthritis is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for left carpal and cubital tunnel syndrome is remanded. Entitlement to an initial rating in excess of 20 percent for right carpal and cubital tunnel syndrome is remanded Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 2, 2018 is remanded. FINDINGS OF FACT 1. The Veteran's hypertension has required continuous medication for control throughout the appeal period but has not resulted in diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. 2. The Veteran's erectile dysfunction has not been manifested by penile deformity at any point during the appeal period. 3. The Veteran's allergic rhinitis has not been manifested by nasal polyps or greater than 50 percent obstruction of nasal passage on both sides or complete obstruction one side at any point during the appeal period. 4. The Veteran's right knee osteoarthritis has been manifested by painful flexion but noncompensable limitation of motion throughout the appeal period. 5. The Veteran's left knee osteoarthritis has been manifested by painful flexion but noncompensable limitation of motion throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no higher, for hypertension are met from December 1, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7101. 2. The criteria for entitlement to an initial compensable rating for erectile dysfunction are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115b, DCs 7599-7522. 3. The criteria for an initial rating in excess of 10 percent for allergic rhinitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6522. 4. The criteria for entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DCs 5003-5260. 5. The criteria for entitlement to an initial rating in excess of 10 percent for left knee osteoarthritis are not met. 38 U.S.C. §§ 1155, 5107; 3898 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DCs 5003-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1992 to November 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims for further development in July 2019. Notably, during the pendency of this appeal, a January 2020 rating decision awarded service connection for lumbar strain, pseudofolliculitis barbae (claimed as shaving bumps), and scars. These issues are accordingly not in appellate status. The Board notes that beginning April 2, 2018, the Veteran is in receipt of a combined 100 percent disability rating. See June 2020 rating decision. As such, entitlement to a TDIU as of that date is moot but entitlement to a TDIU prior to that date is before the Board. Thus, the issue has been recharacterized accordingly. Increased Ratings 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 represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The appeal period before the Board is from the effective date of service connection, or December 1, 2014. 1. Entitlement to an initial 10 percent rating, but no higher, for hypertension is granted from December 1, 2014. The Veteran's hypertension is currently rated as noncompensable under DC 7101, which contemplates hypertensive vascular disease. A 10 percent rating is assigned for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure predominantly 120 or more and a maximum 60 percent rating is assigned for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101. Here, the Board finds that a 10 percent rating, but no higher, is warranted for hypertension. VA treatment records show that the Veteran's diastolic pressure occasionally ranged near or above 100, and, similarly, that his systolic pressure occasionally ranged near or above 160. The March 2015 VA examiner noted that the Veteran's treatment plan included taking continuous medication. The record reflects that the Veteran has continuously been prescribed two different types of blood pressure medication, each to be taken daily. See e.g., July 2017 VA treatment record. Such symptoms more nearly approximate the criteria for a 10 percent rating throughout the appeal period, effective December 1, 2014. A rating in excess of 10 percent is not warranted at any point, as diastolic pressure has never been shown to be 110 or more and systolic pressure has never been shown to be 200 or more, even during the two instances the Veteran's hypertension was noted to be not well controlled. Therefore, there evidence does not demonstrate blood pressure readings to warrant a 20 percent rating. 2. Entitlement to an initial compensable rating for erectile dysfunction is denied. The Veteran's erectile dysfunction is rated pursuant to DCs 7599-7522, which is rated by analogy to penis deformity, with loss of erectile power. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Under DC 7522, a compensable rating requires a physical deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, DC 7522. Upon review of the totality of the record, the Board finds that a compensable rating is not warranted for the Veteran's erectile dysfunction at any point during the appeal period, as there is no evidence of penile deformity and the Veteran does not assert otherwise. The March 2015 VA examiner did not perform a physical examination of the penis, per the Veteran's request, but the Veteran reported normal anatomy with no penile deformity or abnormality. The February 2019 VA examiner physically examined the Veteran's penis and found it to be normal. Thus, although the Veteran experiences loss of erectile power, the evidence does not reflect the presence of a penile deformity. Accordingly, a compensable rating is not available. The Board notes that the Veteran has been awarded entitlement to special monthly compensation based on the loss of use of a creative organ throughout the appeal. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). 3. Entitlement to an initial compensable rating for allergic rhinitis is denied. The Veteran's allergic rhinitis is rated pursuant to DC 6522, which provides a 10 percent rating for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A maximum 30 percent rating is warranted for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, DC 6522. Upon review of the totality of the record, the Board finds that a compensable rating is not warranted for allergic rhinitis at any point during the appeal period, as there is no evidence of more than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side, or nasal polyps. In this regard, the March 2015 VA examination report shows no evidence of any nasal obstruction or nasal polyps. The Board acknowledges the Veteran's report of obstruction of nasal passages greater than 50 percent with continuous blockage on the left side. See May 2015 Notice of Disagreement (NOD). However, his statements are not supported by the medical evidence, as subsequent treatment records are negative for nasal polyps and specifically indicate "no nasal passage blockage." See June 2017, January 2018, and April 2018 VA treatment records. To the extent that the Veteran's reported symptoms are inconsistent with the objective medical evidence of record, the Board finds the contemporaneous medical evidence is more probative and more credible than his lay statements in support of his claim. Therefore, a compensable rating is precluded, and the Board may not employ another diagnostic code to rate the Veteran's allergic rhinitis. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). 4. Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis is denied. 5. Entitlement to an initial rating in excess of 10 percent for left knee osteoarthritis is denied. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020). VA's General Counsel held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Thus, 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. The Veteran's bilateral knee disability is rated pursuant to DCs 5003-5260. DC 5003 directs VA to rate the disability on the basis of limitation of motion pursuant to an appropriate diagnostic code for the specific joint involved. DC 5260 provides ratings for limitation of flexion of the leg. A 10 percent rating is assigned for flexion limited to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, and a maximum 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Also, DC 5261 provides ratings for limitation of extension of the leg. A 10 percent rating is assigned for extension limited to 10 degrees, with higher ratings available for more severe limitation. 38 C.F.R. § 4.71a, DC 5261. The Board notes that the rating criteria for DCs 5003, 5260, and 5261, as relevant here, were not affected by the February 7, 2021 amendments. As a preliminary matter, the Board notes that although the Veteran presented for a VA examination in March 2015, the most recent October 2019 VA examination is the only examination that is compliant with the requirements set forth by Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, only the October 2019 VA examination report will be utilized for evaluation of the Veteran's bilateral knee disability based on range of motion, as it is the only adequate examination of record. In this regard, the Board emphasizes that the prior non-compliant 2015 examination shows range of motion findings less favorable to the Veteran than those in the October 2019 VA examination report. Thus, there is no prejudice to the Veteran in not considering the 2015 examination to rate his knee disability based on limitation of motion and DeLuca factors. On VA examination in October 2019, the Veteran endorsed bilateral knee pain with any kind of prolonged or strenuous weight-bearing, as well as flare-ups with additional pain and diminished range of motion, and reported moderate pain that interfered with walking, running, squatting, climbing stairs. Physical examination showed right knee flexion to 90 degrees and extension to zero degrees, and left knee flexion to 105 degrees and extension to zero degrees, with pain on flexion and weight-bearing bilaterally, but no additional loss of motion upon repetition in either knee. The examiner determined that pain would additionally limit range of motion during a flare-up, noting right knee flexion would be limited to 80 degrees and extension to zero degrees, and left knee flexion would be limited to 90 degrees and extension to zero degrees. As for repetitive use over time, the examiner indicated that although additional pain was expected, there would be no further loss of range of motion. Muscle strength and joint stability testing were normal bilaterally. The examiner noted localized tenderness or pain on palpation and disturbance of locomotion in both knees, but found no evidence of muscle atrophy, ankylosis, recurrent subluxation, lateral instability, effusion, or crepitus. The Board finds that, when considering DeLuca factors, the Veteran's right and left knee disabilities have been productive of painful flexion, but noncompensable limitation of motion, thereby precluding ratings in excess of 10 percent under DC 5260 or a separate rating under DC 5261. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202; VAOPGCPREC 9-2004. Therefore, a rating higher than 10 percent is not warranted for either knee at any point during the appeal period. Additionally, the Board has considered whether higher or separate ratings are warranted under alternate diagnostic codes. However, there is no indication of ankylosis, recurrent subluxation, lateral instability, removal of semilunar cartilage, tibia and fibula impairment, or genu recurvatum during the appeal period. See March 2015 and October 2019 VA examination reports. As such, ratings under DCs 5256, 5257, 5259, 5262, and 5263 are precluded. Moreover, while the October 2019 VA examination report notes a right knee meniscal tear, since the evidence does not show that it was manifested by frequent episodes of "locking," pain, and effusion (see e.g. July 2014 VA treatment record "questionable tears of the medial meniscus, not likely to be significant"), a separate rating under DC 5258 for dislocated semilunar cartilage is not also warranted. REASONS FOR REMAND 6. Entitlement to an initial rating in excess of 20 percent for left carpal and cubital tunnel syndrome is remanded. 7. Entitlement to an initial rating in excess of 20 percent for right carpal and cubital tunnel syndrome is remanded. The Veteran was last afforded an examination for his bilateral carpal and cubital tunnel syndrome in March 2015. He asserts that symptoms are worse than those documented at the 2015 VA examination and reports moderate symptoms of numbness and paralysis that interfere with his functional abilities. See May 2015 NOD. Moreover, the Board finds that the existing record is insufficient to rate the severity of the Veteran's upper extremity neurological disorders. Thus, the Board finds that remand for an updated VA examination is warranted. Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 8. Entitlement to a TDIU prior to April 2, 2018 is remanded. The Board finds that the Veteran's claim for TDIU is inextricably intertwined with the issues above and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Additionally, the Veteran should be afforded another chance to submit the VA Form 21-8940, as he still has not submitted the requisite form to date. Any outstanding treatment records should be secured. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. (Continued on the next page) 3. Request that the Veteran complete and return VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. Inform the Veteran that failure to complete and return the form will adversely affect his TDIU claim. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of his bilateral carpal and cubital tunnel syndrome. The claims file should be made available to and reviewed by the examiner and all findings reported in detail. J. Dworkin Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.