Citation Nr: 21005342 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-35 282 DATE: February 1, 2021 ORDER Service connection for erectile dysfunction is granted. A rating in excess of 10 percent for chronic right knee strain is denied. A rating in excess of 10 percent for chronic left knee strain is denied. FINDINGS OF FACT 1. The Veteran’s erectile dysfunction had its onset in service. 2. Throughout the pendency of the appeal, the Veteran’s chronic right knee strain has been manifested by limitation of flexion, with consideration of pain, to no less than 100 degrees. 3. Throughout the pendency of the appeal, the Veteran’s chronic left knee strain has been manifested by limitation of flexion, with consideration of pain, to no less than 100 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. § 3.102, 3.303. 2. The criteria for a rating in excess of 10 percent for limitation of flexion due to chronic right knee strain are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5260. 3. The criteria for a rating in excess of 10 percent for limitation of flexion due to chronic left knee strain are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to August 2006. He was awarded the National Defense Service Medal, Armed Forces Expeditionary Medal, Southwest Asia Service Meal with Bronze Star, and Global War on Terrorism Medal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In March 2018, the Board remanded the current issue on appeal for additional development. The Board finds that there has been substantial compliance with the prior remand instructions and that no further action is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In an April 2019 rating decision, the RO granted service connection for a hypertonic bladder and benign prostatic hypertrophy status postresection with urinary obstruction, assigning a rating of 40 percent effective December 22, 2010. As the Veteran has not yet appealed his initial rating assignments or his effective dates, the Board finds that these grants of service connection for a prostate condition and frequent voiding constitute a full award of the benefits sought on appeal with respect to those issues. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, the Board first finds that the Veteran has a current disability. Specifically, VA treatment records reflect that the Veteran reported and was prescribed Levitra and Viagra for erectile dysfunction as early as June 2007 and as recently as July 2019. Next, the Veteran specifically asserts that he had frequent voiding in service beginning 2001 and erectile dysfunction in 2004. Shortly after service, he sought treatment with a urologist, was diagnosed with an enlarged prostate, and underwent laser resection of the prostate. The Veteran reports that despite the surgery, he continues to have erectile dysfunction, along with urinary frequency and urgency. The Board acknowledges that in an April 2019 rating decision, the RO granted service connection for a hypertonic bladder and benign prostatic hypertrophy status postresection with urinary obstruction. Pursuant to the March 2018 remand, the Veteran was afforded a VA Male Reproductive System Conditions Examination in March 2019. The examiner noted that the Veteran reported that he and his wife noted a gradual onset of inability to achieve an erection, as well as urinary frequency with urgency, hesitancy and insufficient emptying. The Veteran stated that he did not seek medical attention in service because “I did not want to tell anyone.” The Veteran reported that he currently has no erections and has taken Viagra without improvement. The examiner diagnosed with erectile dysfunction. She opined that the Veteran’s erectile dysfunction was less likely than not related to service and reasoned that although the Veteran had erectile dysfunction in service, the Veteran reported that “sex is ok” at a medical visit in 2010. She concluded that although the Veteran had some difficulties during service there was insufficient documentation that the veteran had erectile dysfunction during service. The Veteran was afforded a subsequent VA Male Reproductive System Conditions Examination in September 2019. The examiner noted that the Veteran has benign prostatic hypertrophy status post resection with frequent voiding that improved following a 2004 surgery. The examiner also determined that the Veteran did not have erectile dysfunction but did not address the Veteran’s complaints and treatment for erectile dysfunction in the post-service medical records. As such, the Board finds that this examination is inadequate. The examiner’s statements regarding the Veteran's diagnoses and treatment are inaccurate and reflect a less than thorough review of the evidence. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Veteran is competent to describe his symptoms of erectile dysfunction, to include his testimony that it originated during active service. Moreover, the Board finds his testimony on this matter to be credible. The Board further notes that the competent medical evidence, to include a March 2019 VA examination and post-service VA medical records, confirms the Veteran has erectile dysfunction. Although the March 2019 VA examiner provided an opinion against the Veteran’s erectile dysfunction being directly related to service, it does not appear the examiner took into account the Veteran’s competent and credible testimony regarding the onset in service. As such and resolving all reasonable doubt in favor of the Veteran, the Board finds the competent and credible evidence of record reflects it is at least as likely as not his erectile dysfunction developed while on active duty. Accordingly, service connection is warranted. Increased Ratings Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), 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 apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). In specific regard to rating disabilities of the knee, precedent opinions of VA’s General Counsel have held that dual ratings may be given for a knee disorder, with one rating for instability (Diagnostic Code 5257) and one rating for arthritis with limitation of motion (Diagnostic Codes 5003 and 5010). VAOPGCPREC 9-98 (63 Fed. Reg. 56,704 (1998)) and 23-97 (62 Fed. Reg. 63,604 (1997)). Another such opinion held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (69 Fed. Reg. 59988 (2004)). Further, in Lyles v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) recently held that evaluation of a knee disability under the diagnostic codes for recurrent subluxation or instability; limitation of extension; or limitation of flexion does not preclude as a matter of law a separate evaluation of a meniscal disability under Diagnostic Code 5258 or 5259, the diagnostic codes for removal or dislocation of semilunar cartilage. 29 Vet. App. 107, 115-16 (2017). Accordingly, considering the above, when evaluating the Veteran’s bilateral knee disability, the Board may assign separate ratings for: (1) recurrent subluxation or lateral instability; (2) limitation of flexion; (3) limitation of extension; and (4) symptoms associated with the dislocation or removal of semilunar cartilage. When evaluating a disability based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic codes, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. In his January 2012 claim, the Veteran asserted that increased ratings were warranted for his right and left knee disabilities. In a December 2012 statement in support of claim, a December 2013 notice of disagreement, and a September 2014 substantive appeal, he argued that his knee pain has worsened and affects his ability to perform chores and other activities, including prolonged walking, standing, and stairclimbing. Currently, the Veteran is assigned 10 percent disability ratings based on limitation of flexion for the left knee and right knee pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260. Turning to the relevant evidence, VA and private medical records document complaints and treatment for bilateral knee pain with motion. However, these records are absent complaints of or findings of instability, crepitus, swelling, effusion, or locking throughout the pendency of the appeal. The Veteran was afforded a VA knee examination in December 2012. The Veteran reported increased pain in both knees, worsened with prolonged walking and sitting, and decreased range of motion in both knees. The Veteran also endorsed flare-ups that impact the function of the knee. The examiner determined that the Veteran’s right and left knee flexion were limited to 100 degrees with no objective evidence of painful motion and right and left knee extension ended at 0 degrees with no objective evidence of painful motion. The Veteran did not have additional limitation of range of motion with repetitive use testing but did have functional loss in the form of less movement than normal. The Veteran displayed tenderness or pain to palpation of both knees but normal strength and joint stability testing. The examiner determined that there was no evidence or history of meniscal conditions or symptoms, recurrent patellar subluxation or dislocation, or total knee replacement. At the August 2017 Board hearing, the Veteran reported decreased mobility and increased pain. The Veteran also noted instability and feelings of giving away when he stands that began a year earlier. However, in a March 2020 statement in support of claim, the Veteran only endorsed pain worsened with prolonged walking, standing, stairclimbing, and bending. He did not endorse instability, giving away, locking or effusion. Pursuant to the March 2018 remand, the Veteran was afforded another VA examination in March 2019. The Veteran reported that he has daily bilateral knee pain, worse in the morning at first weightbearing, provoked by walking and standing. The Veteran endorsed flare-ups that occur twice daily and during which he has difficulty bending his knee and walking. The Veteran also reported functional loss in the form of pain and loss of motion. The examiner determined that the Veteran’s right knee flexion was limited to 100 degrees and left knee flexion to 90 degrees and right and left knee extension ended at 0 degrees. The examiner determined that the Veteran’s right knee flexion was also limited to 90 degrees and left knee flexion to 80 degrees with repetitive use testing. The examiner indicated that range of motion itself contributed to functional loss as the Veteran’s pain and limitation of motion impaired ambulation and weightbearing. The examiner noted that the Veteran had pain with flexion, extension, passive range of motion, weight bearing and non-weight bearing, and objective evidence of tenderness and crepitus in both knees. The examiner stated that she could not describe the degree of limitation of range of motion after prolonged use or during a flare-up because she had not examined the Veteran under those conditions. The Veteran displayed normal muscle strength and no muscle atrophy. The examiner determined that the Veteran did not have ankylosis, a history of recurrent subluxation, a history of lateral instability, recurrent effusion, or a meniscal condition. The Veteran had normal joint stability testing. The Veteran was afforded another VA knee examination in September 2019. The examiner noted that the Veteran had mild bilateral knee discomfort with ambulation. The examiner noted that the Veteran did not report flare-ups or functional loss of the knees. The examiner determined that the Veteran’s right knee flexion was limited to 110 degrees and left knee flexion to 90 degrees and right and left knee extension ended at 0 degrees, with no objective evidence of pain with active or passive range of motion or with weight bearing and non-weight bearing. The examiner determined that the Veteran’s decreased range of motion did not contribute to functional loss and there was no objective evidence of crepitus. The examiner also determined that the Veteran able to perform repetitive-use testing with at least three repetitions, with no additional loss of function or range of motion. The VA examiner stated that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and flare-ups. He concluded that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time or flare-ups. The Veteran displayed normal muscle strength in both legs and normal joint stability testing. The examiner noted that the Veteran did not have muscle atrophy, ankylosis, or a meniscus condition. Based on review of the foregoing, the Board finds that the disability picture for the Veteran's right knee symptoms most closely approximates the criteria for a rating of 10 percent for limitation of flexion under Diagnostic Code 5260. Examination findings reveal that the Veteran had left knee flexion limited to no less than 100 degrees, with pain, throughout the pendency of the appeal. Although flexion at 100 degrees would result in a 0 percent rating pursuant to Diagnostic Code 5260, given the Veteran’s credible reports of painful motion, the Board finds that 10 percent ratings for right and left knee flexion are warranted throughout the pendency of the appeal. See 38 C.F.R. § 4.59. The Board acknowledges that the Veteran reported instability and giving away of the knees at the August 2017 Board hearing. However, such isolated reports are inconsistent with the objective evidence of record throughout the period on appeal, which consistently documents that the Veteran did not endorse instability of the knees through November 2017, and VA examination findings indicating normal joint instability of both knees. Furthermore, as for the findings of bilateral knee crepitus at the March 2019 VA examination, the Board also notes that earlier and later VA examinations and VA and private medical records throughout the appellate period do not document crepitus of either knee and as such, the March 2019 examination contains an isolated finding of right and left knee crepitus. Accordingly, the Board finds that a separate rating for “locking” and effusion of the right or left knee is not warranted under Diagnostic Codes 5258 or 5259. The Board has also considered whether separate ratings could be assigned for the Veteran’s right or left knee disabilities under any other applicable diagnostic codes, but the evidence of record does not support awarding separate ratings based on ankylosis, impairment of the tibia and fibula, genu recurvatum, or limitation of extension, as the foregoing conditions and symptoms were neither objectively documented during examinations and treatment nor described by the Veteran during the claim period. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256, 5259, 5261, 5262, 5263; see also VAOPGCPREC 9-04; VAOPGCPREC 23-97. The Board acknowledges that the medical evidence of record indicates that extension of the Veteran’s right and left knees have been limited by pain throughout the claim period. However, as the level of such limitation of extension is noncompensable under Diagnostic Code 5261, the Board has herein rated his pain along with limitation of flexion as 10 percent disabling under Diagnostic Code 5260, and the award of ratings for pain with motion under both diagnostic codes would in this case amount to pyramiding. See 38 C.F.R. § 4.14 (2017). For all of the foregoing reasons, separate or higher ratings are not warranted for the Veteran’s right and left knee disabilities. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.