Citation Nr: 21005635 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-27 940 DATE: February 2, 2021 ORDER A rating in excess of 10 percent for a right knee disability is denied. A rating in excess of 10 percent for the residuals of left third finger tendonitis is denied. FINDINGS OF FACT 1. The weight of the competent and probative evidence is against finding arthritis, ankylosis, recurrent subluxation, joint instability, a meniscus/semilunar cartilage disorder, flexion limited to 45 degrees or less, limitation of extension, or a tibial or fibular impairment. 2. The Veteran receives the maximum schedular rating for limitation of motion of the left third finger. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.59, 4.71a. 2. The criteria for a rating in excess of 10 percent for the residuals of left third finger tendonitis 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, 4.59, 4.71a, Diagnostic Code (DC) 5024-5229. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1998 to September 2002. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In February 2019, the Veteran testified at a Board hearing. The transcript of the hearing has been associated with the record. The Board remanded this case for further development in September 2019. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although an increased rating was granted for the issues on appeal, the issues remained in appellate status, as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. Otherwise, it will assign the lower rating. 38 C.F.R. § 4.7. VA resolves any reasonable doubt regarding the degree of disability in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board can assign different or “staged” ratings for such different periods. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In evaluating a disability, the current examination reports in light of the whole recorded history are considered to ensure that the current rating accurately reflects the severity of the disorder. 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. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). For disabilities evaluated based on limitation of motion, provisions of Sections 4.40 and 4.45 pertaining to functional impairment must be applied. 38 C.F.R. §§ 4.40, 4.45. In applying Sections 4.40 and 4.45, a determination is required of whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995); 38 C.F.R. § 4.59; see also Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Notably, 38 C.F.R. § 4.59, entitled “Painful motion,” states, in pertinent part, “The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” The scope of § 4.59 is not limited to arthritis claims. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information, including lay and medical evidence of record, in a case before the Secretary concerning benefits under laws the Secretary administers. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The higher evaluation will be assigned when two disability evaluations are potentially applicable, and the disability picture more nearly approximates the criteria for the higher rating. 3 8 C.F.R. § 4.7. VA has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). 1. Right knee disability. The Veteran contends his right knee grinds when he moves, knees buckle with any twisting motion, he feels instability, his muscles have atrophied, but his legs were symmetrical. He also detailed his right knee worsened since the April 2016 VA examination. 02/21/2019, Hearing Transcript. The Veteran’s right knee disability is assigned a 10 percent rating under DC 5260 for limitation of leg flexion, effective April 22, 2015. A review of the relevant diagnostic codes pertaining to the knees under 38 C.F.R. § 4.71a demonstrates DC 5003 governs degenerative arthritis, DC 5256 governs ankylosis, DC 5257 governs subluxation or lateral instability of the knee, DCs 5258 and 5259 govern meniscus or semilunar cartilage disorders, DCs 5260 and 5261 govern limitation of leg motion, and DC 5262 governs the malunion or nonunion of the tibia and fibula with a knee or ankle disability. The standard motion of a knee joint is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. DC 5260 concerns the limitation of leg flexion. Under DC 5260, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a. DC 5261 pertains to the limitation of leg extension. Under DC 5261, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a. VA treatment records contain evidence of continuing complaints of right knee pain during the period on appeal. See 11/20/2019, CAPRI. An April 2016 VA examination demonstrated right knee flexion was limited to 100 degrees. The Veteran performed repetitive use testing, which demonstrated no additional functional loss or range of motion after three repetitions and that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The examination was negative for evidence of pain with weight-bearing, localized tenderness or pain on palpation of the joint, crepitus, atrophy, loss of strength, ankylosis, subluxation, recurrent effusion, a meniscal condition, or use of an assistive device. Joint stability testing was performed, and it demonstrated no evidence of instability, including lateral instability, anterior instability, posterior instability, or medial instability. 04/11/2016, C&P Exam. Given the Veteran’s testimony of worsening symptoms, he was afforded a new examination in January 2020. During the examination, the Veteran specified he feels a chronic sensation of grinding in the right knee; he feels as if his patella is not tracking appropriately or slipping, his knee occasionally swells and is relieved by ice and elevation. He denied joint locking or taking medication for his right knee pain. He noted personal training and physical therapy have improved his symptoms, and he does leg training in a gym only with bodyweight but does not run. 01/28/2020, C&P Exam. The January 2020 VA examiner found no functional loss during the initial range of motion testing. The examiner found evidence of crepitus and mild tenderness to palpation of the right knee medial joint line. The examiner noted that the Veteran endorsed right patellar instability; however, there was no evidence of abnormal patellar tracking during the examination. The Veteran endorsed intermittent swelling of the right knee, but the examiner found no effusion during the examination. Joint stability testing was performed and was negative for a finding of joint instability. Anterior instability (Lachman test), posterior instability (posterior drawer test), medial instability (valgus pressure applied to knee in extension and with 30 degrees of flexion), and lateral instability (varus pressure applied to knee in extension and with 30 degrees of flexion) were all normal. There was no evidence of pain with weight-bearing, pain with passive range of motion, pain in non-weight-bearing positions, additional functional loss after three repetitions, reduction in muscle strength, atrophy, ankylosis, subluxation, patellar dislocation, or a meniscus or semilunar cartilage condition. The examiner determined pain, weakness, fatigability, or incoordination did not significantly limit right knee functional ability with repeated use over time. Id. Ratings are not warranted under DCs 5003, 5256, 5257, 5258, 5259, 5260, 5261, or 5262, as the weight of the competent and probative evidence is against finding arthritis, ankylosis, recurrent subluxation or lateral instability, a meniscus or semilunar cartilage disorder, flexion limited to 45 degrees or less, limitation of extension, or a tibial or fibular impairment. All diagnostic codes pertaining to the knee and leg have been considered. The preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for a right knee disability; thus, the benefit-of-the-doubt doctrine is not applicable, and the increased rating for the period on appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Residuals of left third finger tendonitis. The Veteran states the residuals of his left third finger tendonitis prevents him from bending his finger, it affects his ability to grip, and he effectively has no use of that finger. See 02/21/2019, Hearing Transcript. The Veteran’s residuals of left third finger tendonitis are rated under 38 C.F.R. § 4.71a, DC 5024-5229. DC 5024 states tenosynovitis, tendinitis, tendinosis, or tendinopathy are to be evaluated as degenerative arthritis based on the limitation of motion of the affected parts. Under DC 5229, limitation of motion of the index or long finger warrants a maximum 10 percent evaluation when there is a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible; or with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, DC 5229. A review of the relevant medical and lay evidence applied to the above laws and regulations demonstrates that a rating in excess of 10 percent for the left third finger is not warranted, as the Veteran is already in receipt of the maximum, 10 percent rating for limitation of motion of the third finger. See 38 C.F.R. § 4.71a, DC 5229. Otherwise, higher ratings are available only for limitation of motion of the other fingers or for the third finger combined with at least one other finger. See 38 C.F.R. § 4.71a. The Veteran is not service-connected for any other digits of the left hand. An April 2016 VA examination reflects the Veteran’s report of pain and limitation of motion of the left third finger, which results in additional pain and stiffness. The examination revealed the extension of the distal interphalangeal (DIP) joint limited to 10 degrees, and the extension of the proximal interphalangeal (PIP) joint limited to 5 degrees. The examination was negative for evidence of pain with the use of the hand or in palpitation. There was no gap between the pad of the thumb and the fingers or a gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The examiner found no ankylosis or atrophy. 04/11/2016, C&P Exam. In the January 2020 VA examination, the Veteran reported left finger functional loss, weakened grip strength, and decreased sensation in the left hand and the third finger. The examination showed the DIP joint’s extension was limited to 10 degrees, and the PIP joint’s extension was limited to 40 degrees. The examiner found no evidence of pain, loss of grip strength, a gap between the pad of the thumb and the fingers, or a gap between the finger and proximal transverse crease of the hand on maximal finger flexion. 01/28/2020, C&P Exam. The April 2016 and January 2020 VA examiners determined an amputation with a prosthesis would not equally serve the Veteran as does his left third finger. The weight of the competent and probative evidence is against finding functional impairment of the left third finger is such that no effective function remains. A higher rating is thus not warranted by analogy to amputation at the metacarpal or the PIP joint. 38 C.F.R. § 4.71a, DC 5155. All possibly applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive a higher or additional evaluation for his left third finger disability based on the evidence. See 38 C.F.R. § 4.71a. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.