Citation Nr: 21008089 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 18-07 208 DATE: February 11, 2021 ORDER A 30 percent evaluation for a left knee disability prior to September 16, 2020, is granted. An evaluation in excess of 30 percent for a left knee disability beginning September 16, 2020, is denied. REMANDED Service connection for hypertension is remanded. FINDINGS OF FACT 1. Prior to September 16, 2020, the Veteran’s left knee disability manifest as flexion limited to 15 percent. 2. Beginning September 16, 2020, the Veteran’s left knee disability is rated as 30 percent disabling, which is the maximum schedular rating permitted for limitation of flexion of the leg. CONCLUSIONS OF LAW 1. The criteria for a 30 percent evaluation for a left knee disability prior to September 16, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for an evaluation in excess of 30 percent for a left knee disability beginning September 16, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1997 to August 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2019 decision, the Board denied an initial rating higher than 10 percent for the Veteran’s left knee condition. The Veteran appealed to the Court of Appeals for Veterans Claims (Court), and in January 2020, pursuant to a Joint Motion for Partial Remand (JMPR), the matter was remanded to the Board. The JMPR states that the Board erred in failing to provide an adequate statement of reasons or bases for denying the Veteran a separate rating for knee instability under 38 C.F.R. § 4.71a, Diagnostic Code 5257. In addition, the Board erred in relying on examination reports from January and November of 2017 which were inadequate because they both contained inconsistent statements concerning functional loss. The Board remanded the claim of service connection for hypertension in May 2019 for issuance of an SOC. The perfected issue is now before the Board on the merits. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist based on the updated record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. An evaluation in excess of 10 percent for a left knee disability prior to September 16, 2020. The Veteran seeks an evaluation in excess of 10 percent for his left knee disability. The Veteran’s knee disabilities have been evaluated under Diagnostic Code 5260. Under Diagnostic Code 5260, limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The JMPR found that the January 2017 and November 2017 VA examination reports were inadequate and inconsistent with respect to functional loss, and ordered the Board to obtain a new examination. Because functional loss is integral to the evaluation of limitation of motion, and in light of the Court’s instructions, the Board cannot use the January 2017 and November 2017 in evaluating limitation of motion. Therefore, the only examination available is the September 2020 VA examination. The September 2020 VA examination showed pain in the bilateral knees diffuse throughout the knees. The Veteran reported instability and stiffness with loss of range of motion and intermittent swelling. He uses a brace on the knee. He denied locking up. The Veteran reported flare-ups as worsening pain on use. The pain limits him from climbing stairs and makes squatting impossible. Left knee flexion was limited to 30 degrees. Left knee extension was not limited. Pain was noted on flexion and extension. The Veteran was unable to perform repetitive use testing due to severe pain. The examiner estimated that after repeated use over time and during flare-ups, flexion would be limited to 10 degrees. Extension would be unchanged. Mild swelling was found to limit range of motion. Four joint stability tests were performed. The results of all were normal. With respect to the September 2020 VA examination, the VA examiner obtained a history and considered the Veteran’s reported symptoms and statements. The examiner described the disability in sufficient detail to enable a fully informed rating. Therefore, the Board finds that the Veteran has been provided an adequate medical examination in conjunction with his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the Agency of Original Jurisdiction’s (AOJ) award of a 30 percent evaluation based on the September 2020 VA examination, the Board finds that such an evaluation must be applied to the entire appeal period. To do otherwise would not make sense considering the same evidence is the basis for the award. Thus, a 30 percent evaluation is warranted. This evaluation is the highest available for limitation of flexion. As to whether a separate compensable evaluation is warranted for limitation of extension, the September 2020 VA examination report showed no limitation of extension even considering during a flare-up and on repeated use over time. The Board finds that the minimum compensable evaluation for the joint has already been assigned. 38 C.F.R. § 4.59. Symptoms associated with functional loss have been associated with the evaluation for limitation of flexion. To consider such symptoms again would be impermissible overlapping. Accordingly, a separate compensable evaluation for limitation of extension is not warranted. With respect to other separate evaluations, recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Ratings can be assigned when the knee disability affects the meniscus. Specifically, a 20 percent rating is warranted when there is dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. A 10 percent rating is warranted when there has been removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The Veteran has reported experiencing instability of his knee and it is noted that he wears a brace; however, the joint stability testing of record at the January 2017, November 2017, and September 2020 VA examinations showed no instability. There is no other joint stability testing of record. The Board acknowledges that it cannot categorically find objective medical evidence more probative than lay evidence with respect to Diagnostic Code 5257 without supporting its conclusion with an adequate statement of reasons or bases. English v. Wilkie, 30 Vet. App. 347 (2018). In this case, the Board finds the Veteran’s reports of instability are less probative with respect to the lateral instability specified by Diagnostic Code 5257. While the Veteran may experience a feeling that his knee may give way or is unstable, the medical findings regarding instability, dislocation, and subluxation are more probative as to the actual presence of these conditions. Notably, the Veteran does not address the type of instability he experiences, such as whether it is lateral instability or other directions of instability. There are specific medical tests that are designed to reveal instability and laxity of the joints, particularly lateral instability. Four directions of instability are tested, including lateral instability. These tests were administered by the medical professionals in this case and revealed no lateral instability or laxity. Hence, the evidence is against a separate rating for the knee under Diagnostic Code 5257. 38 C.F.R. § 4.71a. Finally, ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis. As such, those diagnostic codes are not for application. 2. An evaluation in excess of 30 percent for a left knee disability beginning September 16, 2020. The Veteran is in receipt of the maximum evaluation for limitation of flexion. The Board’s analysis above with respect to separate compensable evaluations for Diagnostic Codes other than 5260 applies to the period beginning September 16, 2020, as well. REASONS FOR REMAND 1. Service connection for hypertension is remanded. The Board cannot make a fully-informed decision on the issue of service connection for hypertension because the Veteran has not been afforded a VA examination on the issue of hypertension and no VA examiner has opined whether it is related to instances of high blood pressure in service. Specifically, blood pressure was elevated to 128/98 on August 9, 1998, to 144/98 on August 23, 1998, to 140/90 on September 25, 1998, and to 169/124 and 188/130 on January 22, 1999. Hypertension is defined as diastolic blood pressure predominately 90 mm or greater, and isolated systolic hypertension is defined as systolic blood pressure predominately 160 mm or greater, with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2020). The number of blood pressure readings that were not elevated in service greatly outnumber the elevated blood pressure readings, and, thus, indicating the elevated blood pressure was not predominant. Nonetheless, as hypertension is a chronic disease under 38 C.F.R. § 3.309, the Board finds the elevated blood pressure readings along with the chronic disease presumption trigger VA’s duty to afford the Veteran a VA examination. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination for his hypertension claim. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not that the hypertension (1) began during active service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service?   Provide a rationale to support the opinion(s). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, 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.