Citation Nr: 21007529 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-51 002 DATE: February 9, 2021 ORDER Service connection for hypertension is granted. From October 26, 2013, an increased rating of 20 percent, but no higher, for a right knee condition is granted. Prior to September 17, 2020, a disability rating in excess of 10 percent for a left knee condition is denied. From September 17, 2020, a disability rating of 20 percent, but no higher, for a left knee condition is granted. From September 17, 2020, a separate rating of 20 percent, but no higher, for locking, pain, and effusion of the left knee is granted. REMANDED Entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran testified that he was diagnosed with hypertension in 2008 for which he was prescribed medication. The evidence of record indicates that the Veteran displayed elevated blood pressure readings during service and that elevated blood pressure has persisted since separation. 2. At an October 2013 VA examination, the Veteran’s right knee displayed a semilunar cartilage condition of the right leg with frequent episodes of pain and effusion. The Veteran’s service records indicated that his right knee locked up and he provided competent and credible testimony that his right knee continues to lock up. 3. At the VA examinations during the period on appeal, the Veteran’s left knee range of motion on flexion was greater than 45 degrees; his left knee extension was not limited to 15 degrees, the Veteran’s left knee showed no evidence of ankylosis, severe subluxation or lateral instability, or impairment of the tibia and fibula. 4. At the September 2020 VA examination, the Veteran’s left knee disability was manifested by frequent episodes of locking, pain, and effusion with evidence of moderate recurrent lateral instability. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. From October 26, 2013, the criteria have been met for a disability rating in excess of 10 percent for the right knee condition. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5258. 3. Prior to September 17, 2020, the criteria have not been met for a disability rating in excess of 10 percent for the left knee condition. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5003-5262. 4. From September 17, 2020, the criteria have been met for a disability rating in excess of 10 percent for the left knee condition. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5257. 5. From September 17, 2020, the criteria have been met for a separate disability rating of 20 percent for locking, pain and effusion of the left knee. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from December 1982 to January 1989 and from May 1990 to May 1991. Following active duty, the Veteran served in the National Guard until March 1993. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, a videoconference hearing was held before the undersigned; a transcript is in the record. 1. Service connection for hypertension is granted. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service” also known as the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Factual Background The Veteran testified at the Board hearing that he was diagnosed with hypertension in 2008 for which he was prescribed medication. The Veteran’s service records indicate that he experienced elevated pressure of 130/76 in July 1983, 130/88 in April 1991. After exiting from active service, the Veteran continued to display elevated blood pressure readings including 136/84 in May 1992, 146/98 in January 1993, 140/80 in February 1993, 143/75 in April 1993 and 144/85 August 1993. See treatment records. As indicated above, the Veteran served in the National Guard following active duty service and was deemed medically unfit for service based on the results of the January 1993 examination. See military personnel record. The Veteran was provided a January 2014 VA examination during which the conducting physician opined that it was less likely than not that the Veteran’s diagnosed hypertension was causally related to service. As a rationale, the examiner stated that the Veteran’s active service medical records do not reveal hypertension or its treatment and that there were no serial elevated blood pressure records in service. The examiner further stated there were no civilian medical records pertaining to hypertension and its treatment immediately after the Veteran came out of service. A March 2020 VA hypertension disability benefits questionnaire (DBQ) indicates that the Veteran has a history of a diastolic blood pressure elevation to predominantly 100 or more. The examiner indicated that the Veteran has likely had hypertension since 1993. Analysis In light of the numerous high blood pressure readings shortly after service (as listed above) and the January 2014 VA examiner’s incorrect statement that there were “no civilian medical records pertaining to hypertension” immediately after the Veteran left service, the Board finds that the negative nexus opinion is based on an inaccurate factual premise and cannot assign it significant probative weight. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). Given that there were multiple occasions that the Veteran displayed elevated blood pressure readings during active service which continued to persist to the present day, the Board finds that that there is evidence of in-service incurrence of hypertension and, accordingly, the criteria for service connection have been met. Increased Rating Disability ratings are based on average impairment in earning capacity resulting from a particular disability and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable, a 10 percent rating is applicable for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. DC 5010 uses the same criteria as DC 5003. Diagnostic Code 5256 governs ankylosis of the knee and permits a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees, while a 40 percent rating is called for with flexion between 10 and 20 degrees, a 50 percent rating for flexion between 20 and 45 degrees. Extremely unfavorable ankylosis, with flexion at an angle of 45 degrees or more warrants a maximum 60 percent evaluation. DC 5257 provides ratings for lateral instability. Slight disability warrants a 10 percent rating and a moderate disability warrants a 20 percent rating. Severe disability warrants a 30 percent rating. See 38 C.F.R. § 4.71a. Under DC 5258, a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under that diagnostic code. Under DC 5260, a noncompensable rating is assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating is assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating is assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating is assigned for limitation of flexion of the leg to 15 degrees. See id. Under DC 5261, limitation of extension of the leg warrants a noncompensable rating when extension is limited to 5 degrees; a 10 percent rating when extension is limited to 10 degrees; a 20 percent rating when limited to 15 degrees; 30 percent when limited to 20 degrees; 40 percent when limited to 30 degrees; and 50 percent when limited to 45 degrees. See id. The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, DC 5262. Under that code, a 10 percent evaluation is warranted when malunion of the tibia and fibula produces slight knee or ankle disability. A 20 percent evaluation is warranted when malunion of the tibia and fibula produces moderate knee or ankle disability, and a 30 percent evaluation is warranted when such disability is marked. A 40 percent evaluation is warranted for nonunion of the tibia and fibula, with loose motion, requiring a brace. DC 5263 is the rating code for genu recurvatum. Genu recurvatum is a deformity in the knee in which the knee bends backwards. The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 2. From October 26, 2013, a disability rating of 20 percent, but no higher, for a right knee condition is granted. Factual Background A February 1993 service treatment record indicates that the Veteran’s right knee swells and locks. At an October 2013 VA examination, the Veteran displayed flexion of the right knee to 120 degrees and extension of the right knee to 0 degrees. Pain was noted on the examination which caused functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions. There was additional functional loss or range of motions after three repetitions: flexion was limited to 110 degrees, extension to 0 degrees. The Veteran reported flare ups of the right knee, but the examination was not being conducted during a flare-up. There was no indication that there was ankylosis of the right side nor was there any history of recurrent subluxation or lateral instability. There was no indication of impairment of the tibia or fibula. The conducting physician indicated that the Veteran’s has a semilunar cartilage condition of the right leg with frequent episodes of joint pain and effusion. A January 2020 VA treatment indicates that the Veteran displayed range of motion of the right knee of 115 degrees flexion and his extension was limited to 5 degrees. The Veteran testified at the Board hearing that his right knee locks up when he sits for 15 to 30 minutes. At a September 2020 VA examination, the Veteran displayed flexion of the right knee to 120 degrees and extension of the right knee to 0 degrees. Pain was noted on the examination which caused functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions. There was additional functional loss or range of motions after three repetitions: flexion was limited to 100 degrees, extension to 0 degrees. The physician indicated that the Veteran was being examined immediately after repetitive use over time. The Veteran reported flare ups of the right knee, but the examination was not being conducted during a flare-up. The conducting physician opined that the symptoms of a flare up would limit the Veteran’s flexion to 100 degrees, extension to 0 degrees. The conducting physician indicated that the Veteran did not display any ankylosis of the right leg nor was there any history of recurrent subluxation or lateral instability. The physician also indicated that the Veteran had a semilunar cartilage condition of the right leg with frequent episodes of locking, pain and effusion. The Veteran had shin splints of the right leg but there was not nonunion nor malunion of the tibia and fibula. Analysis The Board finds that the preponderance of the evidence supports a finding that from October 26, 2013 until present, the Veteran is eligible for an increased rating of 20 percent for a right knee condition. At the October 2013 VA examination, the conducting physician indicated that the Veteran had a semilunar cartilage condition of the right knee with frequent episodes of joint pain and effusion of the right leg. While the examiner did not indicate that the Veteran experienced frequent episodes of locking of the right leg, the Board finds that it was at least as likely as not that the Veteran was experiencing these symptoms. The Board notes that the Veteran’s service treatment records indicate that his right knee locks up, he provided competent and credible testimony that his right knee continues to lock up and the results of the September 2020 VA examination indicate that his right knee locks up. There is nothing in the record to indicate that the Veteran’s right knee improved between his time during service and the January 2020 Board hearing. Accordingly, the Board finds that the Veteran has a semilunar cartilage condition of the right leg with frequent episodes of locking, pain and effusion and is thus entitled to a 20 percent evaluation under DC 5258. What remains for consideration is whether separate or higher ratings are warranted for the Veteran’s right knee condition. The Veteran did not display any ankylosis of right knee during the period on appeal and accordingly an increase under DC 5256 is not warranted. The Veteran did not display any recurrent subluxation or lateral instability of the right knee and accordingly a separate rating under DC 5257 is not warranted. In order to be eligible for a higher, 30 percent rating under DC 5260, the Veteran’s right leg flexion must be limited to 15 degrees. During the period on appeal, the Veteran’s right leg flexion was limited to no worse than 100 degrees. In order to be eligible for a higher, 30 percent rating under DC 5261, the Veteran right leg extension must be limited to 20 degrees. During the period on appeal, the Veteran displayed no worse than being limited to 5 degrees of extension and accordingly an increase to 30 percent under DC 5261 is not warranted. An increase to 30 percent under DC 5262 is not warranted because the Veteran has not demonstrated nonunion of the tibia and fibula at any point during the period on appeal. Additionally, neither the Veteran nor any examiner has reported that pain, weakened movement, excess fatigability, incoordination, would alter his range of motion to the degree required for a higher rating after repetitive use, due to pain, with weight bearing, or during flare-ups. The Veteran has been able to take care of his activities of daily living and even with repetitive use there is no significant loss of motion. Given that his reported symptoms do not prevent him from achieving substantial measured range of motion of the right knee, they do not support a finding of additional functional loss for higher rating. The Veteran’s subjective reports have been taken into consideration, but there is no evidence that his right knee disability experiences significant or additional functional loss beyond that contemplated by the assigned 20 percent evaluations. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca supra Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). 3. Prior to September 17, 2020, a disability rating in excess of 10 percent for a left knee condition is denied. At the October 2013 VA examination, the Veteran displayed flexion of the left knee to 120 degrees and extension of the left knee to 0 degrees. There was no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with at least three repetitions. There was additional functional loss or range of motions after three repetitions: flexion was limited to 100 degrees, extension to 0 degrees. The Veteran reported flare ups of the left knee, but the examination was not being conducted during a flare-up. There was no indication that there was ankylosis of the left side nor was there any history of recurrent subluxation or lateral instability. The Veteran did not display any impairment of the tibia or fibula. The conducting physician indicated that the Veteran’s has a semilunar cartilage condition of the left leg with frequent episodes of joint pain and effusion. However, there was no indication that the Veteran experienced locking of the left leg. A January 2020 VA treatment indicates that the Veteran displayed range of motion of the left knee of 105 degrees flexion and 0 degrees extension. Analysis The Board finds that the preponderance of the evidence is against a finding that the Veteran is eligible for a rating in excess of 10 percent for a left knee condition. The Veteran did not display any ankylosis of left knee during the period on appeal and accordingly an increase under DC 5256 is not warranted. The Veteran did not display any recurrent moderate subluxation or lateral instability of the left knee and accordingly an increased rating under DC 5257 is not warranted. Although the results of the October 2013 examination indicate that the Veteran has a semilunar cartilage condition of the left leg with frequent episodes of pain and effusion, there is no evidence that he experienced locking of the left leg and therefore he is not entitled to a 20 percent evaluation under DC 5258. In order to be eligible for a higher, 20 percent rating under DC 5260, the Veteran’s left leg flexion must be limited to 30 degrees. During the period on appeal, the Veteran’s left leg flexion was limited to no worse than 100 degrees. In order to be eligible for a higher, 20 percent rating under DC 5261, the Veteran’s left leg extension must be limited to 15 degrees. During the period on appeal, the Veteran displayed no worse than 0 degrees of extension and accordingly an increase to 20 percent under DC 5261 is not warranted. An increase to 20 percent under DC 5262 is not warranted because the Veteran has not demonstrated nonunion of the tibia and fibula at any point during the period on appeal. 4. From September 17, 2020, a 20 percent disability rating for a left knee condition is granted. 5. From September 17, 2020, a separate disability rating of 20 percent, but no higher, for instability of the left knee is granted. Factual Background At a September 2020 VA examination, the Veteran displayed flexion of the left knee to 90 degrees and extension of the left knee to 0 degrees. Pain was noted on the examination which caused functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions. There was additional functional loss or range of motions after three repetitions: flexion was limited to 70 degrees, extension to 0 degrees. The physician indicated that the Veteran was being examined immediately after repetitive use over time. The Veteran reported flare ups of the left knee, but the examination was not being conducted during a flare-up. The conducting physician opined that the symptoms of a flare up would limit the Veteran’s flexion to 70 degrees, extension to 0 degrees. The conducting physician indicated that the Veteran did not display any ankylosis of the left leg nor was there any nonunion nor malunion of the tibia and fibular. The physician indicated that the Veteran had a history of recurrent moderate subluxation or lateral instability of the left leg. The physician also indicated that the Veteran had a semilunar cartilage condition of the left leg with frequent episodes of locking, pain and effusion. Analysis The Board finds that the preponderance of the evidence supports a finding that from September 17, 2020 until present, the Veteran is eligible for an increased rating of 20 percent for a left knee condition. The results of the September 2020 VA examination indicate that the Veteran displayed a history of moderate lateral instability of the left knee and accordingly an increased 20 percent rating under DC 5257 is warranted. What remains for consideration is whether separate or higher ratings are warranted for the Veteran’s left knee condition. The results of the September 2020 VA examination indicate that the Veteran has a semilunar cartilage condition of the left leg with frequent episodes of locking, pain and effusion and is thus entitled to separate a 20 percent evaluation under DC 5258. Awarding the Veteran a separate 20 percent rating under DC 5258, from September 17, 2020 until present, does not constitute pyramiding because the Veteran was already awarded the 20 percent rating under DC 5257 for instability of the left knee which is separate and distinct from the locking, pain and effusion of the knee under DC 5258. Because the ratings are not based on the same manifestations of the disability, this does not constitute pyramiding. The Veteran did not display any ankylosis of left knee during the period on appeal and accordingly an increase under DC 5256 is not warranted. In order to be eligible for a higher, 30 percent rating under DC 5260, the Veteran’s left leg flexion must be limited to 15 degrees. During the period on appeal, the Veteran’s left leg flexion was limited to no worse than 70 degrees. In order to be eligible for a higher, 30 percent rating under DC 5261, the Veteran left leg extension must be limited to 20 degrees. During the period on appeal, the Veteran displayed no limitations of extension and accordingly an increase to 30 percent under DC 5261 is not warranted. An increase to 30 percent under DC 5262 is not warranted because the Veteran has not demonstrated nonunion of the tibia and fibula at any point during the period on appeal. Regarding both periods on appeal for the left knee, neither the Veteran nor any examiner has reported that pain, weakened movement, excess fatigability, or incoordination, would alter his range of motion to the degree required for a higher rating after repetitive use, due to pain, with weight bearing, or during flare-ups. The Veteran has been able to take care of his activities of daily living and even with repetitive use there is no significant loss of motion. Given that his reported symptoms do not prevent him from achieving substantial measured range of motion of the left knee, they do not support a finding of additional functional loss for higher rating. The Veteran’s subjective reports have been taken into consideration, but there is no evidence that his left knee disability experiences significant or additional functional loss beyond that contemplated by the assigned evaluations. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca supra, Mitchell supra, Correia supra, and Sharp supra. REASONS FOR REMAND Entitlement to an initial compensable rating for service-connected bilateral hearing loss is remanded. The Veteran was last afforded a VA audiological examination in October 2013. During the January 2020 Board hearing, the Veteran testified that his bilateral hearing loss has worsened since the last VA examination. Where there is evidence that a veteran’s service-connected disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). On remand, the Veteran should be afforded a new VA examination to determine the current nature and severity of his bilateral hearing loss. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Arrange for an audiological examination by an appropriate clinician, to assess the severity of the Veteran’s service-connected bilateral hearing loss. (Continued on the next page)   (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s hearing loss disability under the rating criteria. (b.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s hearing loss and discuss the effect of his hearing loss on any occupational functioning and activities of daily living. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.