Citation Nr: 21006919 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 15-05 309 DATE: February 5, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for left knee sprain is denied. Entitlement to an initial rating in excess of 10 percent for right knee sprain is denied. Entitlement to a separate initial 10 percent rating, but no higher, for left knee painful extension is granted from May 7, 2012. Entitlement to a separate initial 10 percent rating, but no higher, for right knee painful extension is granted from May 7, 2012. Entitlement to a separate initial rating of 10 percent, but no higher, for left knee instability is granted from May 7, 2012. Entitlement to a separate initial rating of 10 percent, but no higher, for right knee instability is granted from May 7, 2012. REMANDED Entitlement to service connection for a prostate disorder is remanded. Entitlement to service connection for a kidney disorder is remanded. Entitlement to service connection for a foot disability is remanded. FINDINGS OF FACT 1. The Veteran’s left knee sprain has been manifested by painful flexion and extension but noncompensable limitation of motion and no more than slight instability throughout the appeal period. 2. The Veteran’s right knee sprain has been manifested by painful flexion and extension but noncompensable limitation of motion and no more than slight instability throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left knee sprain 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, Diagnostic Code (DC) 5260. 2. The criteria for an initial rating in excess of 10 percent for right knee sprain 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, DC 5260. 3. The criteria for a separate initial 10 percent rating, but no higher, for left knee painful extension are met from May 7, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5261. 4. The criteria for a separate initial 10 percent rating, but no higher, for right knee painful extension are met from May 7, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5261. 5. The criteria for a separate initial 10 percent rating, but no higher, for left knee instability are met from May 7, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5257. 6. The criteria for a separate initial 10 percent rating, but no higher, for right knee instability are met from May 7, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1985 to March 1993, including service in the Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims appeal for further development in August 2019. Increased Rating 1. Entitlement to an initial rating in excess of 10 percent for left knee sprain is denied. 2. Entitlement to an initial rating in excess of 10 percent for right knee sprain is denied. 3. Entitlement to a separate initial 10 percent rating, but no higher, for left knee painful extension is granted from May 7, 2012. 4. Entitlement to a separate initial 10 percent rating, but no higher, for right knee painful extension is granted from May 7, 2012. 5. Entitlement to a separate initial rating of 10 percent, but no higher, for left knee instability is granted from May 7, 2012. 6. Entitlement to a separate initial rating of 10 percent, but no higher, for right knee instability is granted from May 7, 2012. 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. 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. As a preliminary matter, the Board notes that although the Veteran presented for a VA examination in September 2013, the most recent July 2020 VA examination is the only examination that is compliant with the requirements set forth by Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, only the July 2020 VA examination report will be utilized for evaluation of the Veteran’s knee disabilities 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 examination shows range of motion findings less favorable than those in the July 2020 VA examination report, but does indicate pain on flexion, which the Board will consider in rating the Veteran’s disability below. Thus, there is no prejudice to the Veteran in not considering these examinations to rate his disabilities based on limitation of motion and DeLuca factors. The Veteran’s bilateral knee disabilities are rated pursuant to DC 5260. Under DC 5260, 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, under DC 5261, a 10 percent rating is warranted for limitation of extension to 10 degrees, with higher ratings available for more severe limitation. 38 C.F.R. § 4.71a, DC 5261. On VA examination in July 2020, the Veteran endorsed bilateral knee pain and flare-ups, and reported difficulty with stairs and prolonged walking. Physical examination showed right knee flexion from zero to 100 degrees and extension from 90 to zero degrees and left knee flexion from zero to 90 degrees and extension from 70 to zero degrees, with pain on extension and weight-bearing bilaterally, but no additional loss of motion upon repetition. Range of motion during a flare-up showed right knee flexion from zero to 95 degrees and extension from 85 to zero degrees and left knee flexion from zero to 85 degrees and extension from 65 to zero degrees, with pain causing functional loss bilaterally. Muscle strength testing indicated active movement against some resistance (4/5) in both knees while joint stability testing was normal. There was no evidence of muscle atrophy, ankylosis, recurrent subluxation, or effusion. The Veteran’s regular use of bilateral knee braces for pain and stability was noted. The Board finds that, when considering DeLuca factors, the Veteran’s bilateral knee disabilities have been productive of painful flexion and extension throughout the appeal period, but noncompensable limitation of motion, thereby precluding a rating in excess of 10 percent under DC 5260 but warranting separate 10 percent ratings for each knee under DC 5261, effective May 7, 2012. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202; VAOPGCPREC 9-2004. Moreover, the Board finds that separate 10 percent ratings are warranted under DC 5257 for the left and right knee throughout the appeal period, effective May 7, 2012. DC 5257 evaluates recurrent subluxation or lateral instability of a knee, and provides a 10 percent rating for slight impairment, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, DC 5257. In this regard, the record shows that the Veteran was fitted for knee braces to use for stability. See August 2014, June 2017, September 2020 VA treatment records. While objective knee joint stability testing was normal, based on evidence reflective of the Veteran’s intermittent use of knee braces during the appeal, the Board finds that the record supports a finding of slight instability of the bilateral knees so as to warrant 10 percent ratings from May 7, 2012. A higher rating is not warranted, as “moderate” and “severe” equate with average and pronounced, and the Board finds that a “moderate” or “severe” instability rating would necessitate objectively evidence of instability on physical examination. Here there is no objective evidence of instability shown, and thus instability does not more closely approximate moderate or severe instability under DC 5257. Additionally, the Board has considered whether higher or separate ratings are warranted under alternate diagnostic codes. However, there is no indication of ankylosis, dislocation or removal of semilunar cartilage, tibia and fibula impairment, or genu recurvatum at any point during the period on appeal. See September 2013 and July 2020 VA examination reports. As such, ratings under DCs 5256, 5258, 5259, 5262, and 5263 are precluded. REASONS FOR REMAND 7. Entitlement to service connection for a prostate disorder is remanded. 8. Entitlement to service connection for a kidney disorder is remanded. 9. Entitlement to service connection for a foot disability is remanded. Although the Board sincerely regrets the additional delay, a remand is again required, as portions of the July 2018 Veterans Health Administration (VHA) opinion of record are inadequate. Specifically, the VHA examiner relied solely on the absence of documented evidence in the Veteran’s service treatment records and did not address the in-service February 1992 abnormal/elevated lab results in discussing the etiology of his prostate and kidney disorders. Furthermore, the examiner did not adequately consider secondary service connection regarding the Veteran’s foot disability. Therefore, an addendum opinion is necessary on remand. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that in the August 2019 remand, the Veteran was requested to identify the private physician who he asserted could attribute his disabilities to service. In an August 2020 letter, the RO expressly asked the Veteran to identify any private treatment records associated with his kidney, prostate, and foot disorders, to specifically include the physician he identified in his May 2012 claim who reportedly related his claimed disabilities to abnormal lab results and hazardous exposures in service, and requested that he complete and submit releases, VA Form 21-4142 and VA Form 21-4142a, to obtain such private treatment records, and invited him to submit the treatment records himself. The Veteran did not respond. Accordingly, the Board finds that the RO substantially complied with the August 2019 remand directives in efforts to obtain private treatment records and the duty to assist is satisfied. 38 C.F.R. § 3.159(c)(1). Any outstanding treatment records should be secured on remand, including another attempt to obtain private treatment records. 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, to again specifically include the physician the Veteran identified in his May 2012 claim, who reportedly related his disabilities to abnormal lab results and hazardous exposures in service. 3. Then refer the claims file to an examiner other than the September 2013 VA examiner, preferably a physician, for preparation of an addendum opinion addressing the etiology of the Veteran’s prostate and kidney disorders. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed benign prostatic hypertrophy and kidney stones had their onset in or are otherwise related to service, to include as a result of the documented toxic granules (see February 1992 hematology report), elevated creatinine and protein (see February 1992 lab results), or conceded environmental exposures (e.g., burn pits, oil fires, sandstorms) during service in Southwest Asia. Please do not rely solely on negative service treatment records and/or the fact that presumptive service connection is not available for the condition in question, as that will result in an inadequate opinion. A complete rationale should be given for all opinions and conclusions expressed. If the examiner is unable to render an opinion without resorting to speculation, supporting rationale for that conclusion should be furnished. 4. Then refer the claims file to an examiner other than the September 2013 VA examiner, preferably a physician, for preparation of an addendum opinion addressing the etiology of the Veteran’s foot disability. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed foot disability: (a) had its onset in or is otherwise related to service, to include as a result of conceded environmental exposures (e.g., burn pits, oil fires, sandstorms) during service in Southwest Asia; (b) is proximately due to his service-connected bilateral knee disabilities; or (c) has been aggravated (worsened beyond natural progression) by his service-connected bilateral knee disabilities. Please do not rely solely on negative service treatment records and/or the fact that presumptive service connection is not available for the condition in question, as that will result in an inadequate opinion. A complete rationale should be given for all opinions and conclusions expressed. If the examiner is unable to render an opinion without resorting to speculation, supporting rationale for that conclusion should be furnished. S. BUSH 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.