Citation Nr: 21006548 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-08 185 DATE: February 4, 2021 ORDER Entitlement to disability rating in excess of 30 percent for a left knee disability, status post total knee replacement, is denied. REMANDED Entitlement to service connection for hypertension, including as secondary to service-connected diabetes or as due to exposure to herbicide agents during service in Vietnam, is remanded. FINDING OF FACT The preponderance of the evidence shows that the Veteran's left knee disability is not manifested by ankylosis; nonunion of the tibia and fibula; limitation of extension to 30 degrees; or chronic residuals of knee replacement consisting of severe painful motion or weakness in the affected extremity. CONCLUSION OF LAW The criteria for disability ratings in excess of 30 percent for a left knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1968 to September 1969. This claim comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2018 decision, the Board denied the Veteran’s claims for entitlement to an increased rating for his left knee disability and service connection for hypertension. The Veteran appealed this decision to United States Court of Appeals for Veterans Claims (Court). In July 2019, the parties filed a Joint Motion for Partial Remand (JMPR), which the Court granted in an Order that same month, partially vacating the Board's decision as to service connection for hypertension and an increased rating for his left knee disability. The Court remanded the claim to the Board for further development and re-adjudication in compliance with directives specified. In January 2020, the Board remanded these claims for additional development. They have returned to the Board for further appellate review. As a preliminary matter, the Board notes that claims for entitlement to service connection for a back disability, foot disability, right knee disability, neck disability, chronic sleep disorder, and TDIU were remanded in the August 2018 Board decision. While these claims were not part of the JMPR or January 2020 Board remand, they have also recently returned to the Board for further appellate review. However, in response to a September 2020 SSOC for these claims, the Veteran filed a Decision Review Request: Supplemental Claim (VA Form 20-0995) and elected to opt these claims into AMA (the new appeals system at VA). As such, these claims will be addressed in a separate AMA decision. They can not be addressed in the same decision. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, 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. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. § § 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to disability rating in excess of 30 percent for a left knee disability, status post total knee. By way of history, the Veteran injured his left knee during service and was determined to be unfit for duty due to his left knee disability in a Medical Board Report. Following separation from service, in August 1969, the RO granted service connection for a left knee disability, evaluated as 30 percent disabling. In November 2011, the Veteran underwent a total left knee replacement, for which the RO granted a temporary total rating, followed by a 30 percent rating, effective December 1, 2012. See 38 C.F.R.§4.29. The Veteran's service-connected left knee disability is currently rated as 30 percent disabling under DC 5055 for knee replacement (prothesis). 38 C.F.R. § 4.71a. The Veteran contends that his symptoms are productive of a higher rating for his left knee disability. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Normal knee flexion is to 140 degrees, and normal knee extension is to 0 degrees. See 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055, for one year following the implantation of a knee prosthesis, a 100 percent disability rating is assigned. Thereafter, the minimum disability rating which may be assigned, post-knee replacement is 30 percent. A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, adjudicators are instructed to rate by analogy to Diagnostic Codes 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula). Under 38 C.F.R. § 4.71a, DC 5256, a 40 percent rating is warranted for unfavorable ankylosis of the knee with flexion between 10 degrees and 20 degrees. A 50 percent rating is warranted for unfavorable ankylosis of the knee with flexion between 20 and 45. A 60 percent rating is warranted for extremely unfavorable ankylosis of the knee with flexion at an angle of 45 degrees or more. Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, limitation of extension of the leg to 45 degrees warrants a 50 percent rating; limitation to 30 degrees warrants a 40 percent rating; limitation to 20 degrees warrants a 30 percent rating; limitation to 15 degrees warrants a 20 percent rating; limitation to 10 degrees warrants a 10 percent rating; and limitation to 5 degrees warrants a noncompensable rating. 38 C.F.R. § 4.71a, DC 5261. Under 38 C.F.R.§4.71a, DC 5262, a 40 percent rating is warranted for impairment of tibia and fibula, nonunion of the tibia and fibula with loose motion, requiring a brace. With the long history and current status of the Veteran’s ratings for his left knee disability in mind, the Board turns to the medical evidence. The Veteran was provided a VA examination for knee and lower leg conditions in December 2014. However, the examination was found to be inadequate in the July 2019 JMPR and the Board was instructed to obtain an examination report that adequately evaluates the severity of the Veteran’s left knee condition. Pursuant to the September 2019 JMPR and January 2020 Board remand, the Veteran was provided a VA examination for knee and lower leg conditions in March 2020. The examiner diagnosed the Veteran with total left knee replacement. The Veteran reported constant left knee pain with poor tolerance in prolonged ambulation, standing activities, and kneeling activities. The Veteran did not report flare-ups of the knee and/or lower leg. The Veteran did not report having any functional loss or functional impairment of the knee, including but not limited to repeated use over time. The Veteran’s left knee range of motion was measured at 0 to 90 degrees for flexion and 90 to 0 degrees for extension. The examiner noted pain on flexion that does not result in or cause functional loss. The examiner did not find evidence of pain with weight bearing, localized tenderness, pain on palpation, or crepitus. The examiner noted the Veteran’s regular use of a cane to assist locomotion. The examiner found evidence of pain on passive range of motion testing and evidence of pain when the knee joints are used in non-weight bearing. The examiner found that the Veteran was able to perform repetitive use testing with at least three repetition without additional functional loss or range of motion. The examiner found that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over a period of time. The examiner found no additional factors contributing to the Veteran’s left knee disability. The examiner found normal muscle strength and no evidence of muscle atrophy. The examiner found no ankylosis, no history of recurrent subluxation, no history of lateral instability, and no history of recurrent effusion. Joint stability testing was performed, and no joint instability was found. The examiner did not find recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The examiner did not find a meniscal condition. The examiner noted the Veteran’s total knee joint replacement and found intermediate degrees of residual weakness, pain, or limitation of motion. The examiner found no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran’s left knee disability. The examiner found that the Veteran’s left knee disability does not impact his ability to perform any type of occupational task, providing evidence against this claim. The Board also notes that while treatment records also periodically document the Veteran's complaints and treatment related to his left knee disability, nothing in these records during the pendency of the claim show his adverse symptomatology to be markedly worse than what was reported at the above VA examination. Based on the foregoing evidence, the Board finds that a rating in excess of the current 30 percent evaluation, currently based on knee replacement with intermediate degrees of residual weakness, pain, or limitation of motion, for the Veteran's left knee disability is not warranted. See 38 C.F.R. § § 4.7, 4.71a. It is very important for the Veteran to understand that it is clear from both his statements and the medical evidence that the Veteran has problems with his knee. This is not in dispute. A 30% disability evaluation will, by definition, cause the Veteran many problems. If it did not, there would be no basis for the 30% rating. The only question is the degree of disability based on the law. A ratings in excess of 30 percent for the Veteran’s left knee disability is not available due to limited range of motion, as such a rating would require a finding of limitation of extension to 30 degrees, which is not shown even when incorporating functional loss due to the factors set forth in 38 C.F.R. § § 4.40 and 4.45. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). A rating in excess of 30 percent is also not available for the Veteran’s left knee disability under DC 5256 or 5262. See 38 C.F.R. §§ 4.71a. DC 5256 cannot serve as the basis for a higher rating for the Veteran’s left knee disability, as the record does not show unfavorable ankylosis. DC 5262 cannot serve as the basis for a higher rating for the Veteran’s left knee disability, as the record does not show nonunion of the tibia and fibula, with loose motion, requiring a brace. The examination reports, overall, provide highly probative evidence against this claim that the Board simply can not ignore. Additionally, the Board finds that the evidence is insufficient to show that the Veteran’s disability is productive of chronic residuals consisting of severe painful motion or weakness in the affected extremity necessary for a higher rating under DC 5055. In this regard, while there are findings indicating that the Veteran has pain on motion, they are insufficient to show “severe’ painful motion, and there is insufficient evidence to show that the left knee is productive of severe weakness. The March 2020 VA examination found intermediate degrees of residual weakness, pain, or limitation of motion from the Veteran’s total left knee replacement. The examiner did not find muscle atrophy or a reduction in muscle strength in the Veteran’s left knee. Also, as discussed above, the Veteran does not meet the criteria for a higher rating under the provisions applicable to limitation of motion of the knee or instability. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran's left knee disability is not manifested by ankylosis; nonunion of the tibia and fibula; limitation of extension to 30 degrees; or chronic residuals of knee replacement consisting of severe painful motion or weakness in the affected extremity. Therefore, the Board finds that the criteria for a higher rating are not met. See 38 C.F.R. § 4.71a; Fenderson, supra. While the Veteran believes that a higher rating is warranted for his left knee disability, the evidence of record does not support this belief. While the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical condition at any given time, based on the criteria above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Again, it is important for the Veteran to understand that the medical findings provide highly probative evidence against the claims that the Board cannot, unfortunately, ignore. The medical findings outweigh the Veteran's belief that his disability warrants a higher disability rating and provide a clear basis for the opinion. Therefore, the Board provides more weight to the competent medical evidence of record and must deny the claim. This does not suggest, in any way, that the Veteran is not having problems with his left knee disability. It is these problems that are the basis of the current and longstanding ratings. While the Board acknowledges the Veteran has significant problems as a result of his left knee disability, the evidence of record does not indicate that the Veteran meets the rating criteria for higher evaluations or additional separate ratings. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, where the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). REASONS FOR REMAND Entitlement to service connection for hypertension, including as secondary to service-connected diabetes or as due to exposure to herbicide agents during service in Vietnam. In the January 2020 decision, the Board remanded the Veteran’s claim for entitlement to service connection for hypertension for a new examination in compliance with the JMBR. While a March 2020 VA examination for hypertension was obtained on remand, the Board finds that another remand is required to obtain substantial compliance with the January 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the January 2020 remand instructed the examiner to provide an opinion as to: (1) whether the Veteran’s hypertension is due to or aggravated by his service-connected diabetes mellitus, or (2) whether his hypertension is directly due to herbicide exposure. The March 2020 VA examination did not address either issue. The Veteran’s service-connected diabetes was not mentioned in the examination and herbicide exposure was only addressed as to eligibility for presumptive service connection. Therefore, the Board finds remand is necessary for a VA addendum opinion prior to rendering a decision on the appeal. The matters are REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records and associate them with the evidence of record. If possible, the Veteran himself should submit these records (if any), and any other new treatment for this problem, himself, to expedite the case. Any assistance on this issue would be appreciated. 2. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran's hypertension. Specifically, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that hypertension is due to or aggravated by service-connected diabetes mellitus. The examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that hypertension is directly due to herbicide exposure, to include Agent Orange. A complete rationale for any opinions expressed should be provided. The report should set forth all complaints, findings, and diagnoses relating to the Veteran's hypertension and provide a rationale for all conclusions reached. If the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. After completion of the aforementioned, the AOJ should readjudicate the issues on appeal. If the benefit sought on appeal is not granted, then the AOJ should provide the Veteran with a supplemental statement of the case and afford him the appropriate opportunity to respond thereto. Thereafter, the case must be returned to the Board for further appellate review. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, Associate 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.