Citation Nr: 21008977 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-47 119 DATE: February 18, 2021 ORDER The issue of service connection for a right ankle disability is dismissed. A rating in excess of 10 percent for right knee degenerative joint disease (right knee disability) is denied. A rating in excess of 10 percent for right knee lateral instability is denied. REMANDED The issue of service connection for an upper respiratory disability, to include a sinus disability and as due to exposure to environmental hazards in the Southwest Asia theater of operations, is remanded. The issue of service connection for a right lower extremity disability, to include as secondary to service-connected right and left knee disabilities and as due to exposure to environmental hazards in the Southwest Asia theater of operations, is remanded. The issue of service connection for a left lower extremity disability, to include as secondary to service-connected right and left knee disabilities and as due to exposure to environmental hazards in the Southwest Asia theater of operations, is remanded. The issue of a rating in excess of 10 percent for recurrent kidney stones (kidney stones), prior to September 25, 2020, is remanded. The issue of a rating in excess of 30 percent for kidney stones since September 25, 2020, is remanded. FINDINGS OF FACT 1. In an October 2020 rating decision, the Regional Office (RO) granted service connection for a right ankle disability; the Veteran has not appealed the rating or the effective date assigned to the disability. 2. The Veteran’s right knee disability did not more nearly approximate limitation of flexion to 30 degrees or moderate lateral instability; there was no limitation of extension; and there was no right knee ankylosis, meniscal dislocation, subluxation, symptomatic tibia or fibula impairment, or genu recurvatum. CONCLUSIONS OF LAW 1. The issue of service connection for a right ankle disability is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.1302. 2. The criteria for a rating in excess of 10 percent for the right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010-5260. 3. The criteria for a rating in excess of 10 percent for the right knee lateral instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1981 to January 2001, including service in the Southwest Theater of Operations during the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2013, September 2014, and August 2017 rating decisions of the Department of Veterans Affairs (VA) RO. In September 2019, the Veteran presented testimony before the Board. In January 2020, the Board remanded the appeal for additional development. Specifically, the increased rating claim for the right knee was remanded to afford the Veteran a VA examination to determine the current severity of his service-connected right knee disability, to include compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). In September 2020, the Veteran was afforded a VA examination that reflected the current severity of his service-connected right knee disability, to include findings that complied with the requirements in Correia. Accordingly, the September 2020 VA examination is sufficient for evaluation purposes, as the examiner rendered findings responsive to the rating criteria. See 38 C.F.R. § 4.2. Therefore, the agency of original jurisdiction (AOJ) complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The claim of service connection for an upper respiratory disability has been recharacterized in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). In an October 2020 rating decision, the RO increased the rating for kidney stones to a 30 percent, effective September 25, 2020. The Veteran has not expressed satisfaction with the increased disability rating; this issue, thus, remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. The issue of service connection for a right ankle disability. In an October 2020 rating decision, the RO granted service connection for a right ankle disability, which was previously on appeal after being denied by the RO’s September 2013 rating decision. The Veteran has not appealed either the rating or the effective date assigned to this disability. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Accordingly, as there remains no allegation of error of fact or law for appellate consideration, the issue of service connection for a right ankle disability is dismissed. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Right Knee Disabilities The Veteran’s right knee disability is rated as 10 percent disabling under DCs 5010-5260. His right knee lateral instability is rated as 10 percent disabling under DC 5257. Under DC 5260, limitation of flexion of the leg is rated as a noncompensable when flexion is limited to 60 degrees; a 10 percent rating is warranted when flexion is limited to 45 degrees; a 20 percent rating is warranted when flexion is limited to 30 degrees; and a 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. VA’s General Counsel has held that separate ratings can be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Under DC 5261, limitation of extension of the leg, is rated as noncompensable when extension is limited to 5 degrees; a 10 percent rating is warranted when extension is limited to 10 degrees; a 20 percent rating is warranted when extension is limited to 15 degrees; a 30 percent rating is warranted when extension is limited to 20 degrees; a 40 percent rating is warranted when extension is limited to 30 degrees; and a 50 percent rating is warranted when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Under DC 5257, applicable to other impairment of the knee, recurrent subluxation or lateral instability is rated as follows: a 10 percent rating is warranted if the condition is slight; a 20 percent rating is warranted if the condition is moderate; and a 30 percent rating is warranted if the condition is severe. 38 C.F.R. § 4.71a, DC 5257. Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59. Further, in claims for higher ratings for musculoskeletal disabilities, where a veteran has a noncompensable rating and complaints of pain on motion, the veteran may be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court held that under 38 C.F.R. § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint,” and it explained that 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that 38 C.F.R. § 4.59 does not require “objective” evidence but can be satisfied with lay and other nonmedical evidence. Id. at 429. The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. Moreover, the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). In October 2013, the Veteran submitted a claim for an increased rating for his right knee disability. During the appeal period, the Veteran reported right knee pain, limited range of motion, swelling that occurred once a week, locking, giving away, flare ups, and increased right knee pain with bending. See VA examination reports (September 2014; September 2020); Board hearing transcript (October 2020). Specifically, as to the Veteran’s flare-up symptoms, although he denied flare ups at the September 2014 VA examination, he reported right knee flare-ups that occurred once a week that lasted from three to four days at the September 2020 examination. He rated his pain during a flare up as a 10 out of 10. See VA examination report (September 2020). He indicated that during flare ups, he had right knee throbbing and that his pain level intensified with activity, such as prolonged walking and standing. See Board hearing transcript (October 2020); VA examination report (September 2020). Upon physical examination, there was no locking, deformity of the muscle, atrophy, ankylosis, dislocated semilunar cartilage, subluxation, or instability. See VA examination reports (September 2014; September 2020). Muscle strength was normal. Id. At the September 2014 VA examination, stability testing was normal. During the September 2020 examination, the examiner indicated that the Veteran was unable to perform instability testing due to pain; the examiner indicated that there was no history of recurrent subluxation or lateral instability. At the September 2014 VA examination, the examiner indicated that the Veteran had a meniscus (semilunar cartilage) condition. Specifically, the examiner indicated that the Veteran had a meniscectomy in 1999, but that there were no current symptoms or residuals. During the September 2020 examination, the examiner indicated that the Veteran had a meniscus (semilunar cartilage) condition. The examiner explained that the Veteran had a meniscal tear and repair, mostly recently, in 2008, and that he had frequent episodes of joint pain, crepitus, and frequent episodes of joint effusion. The examiner indicated that there was no meniscal dislocation. With respect to range of motion testing of the right knee, during the September 2014 and September 2020 examinations, range of motion testing revealed flexion to 110 degrees with pain and extension was to zero degrees. At the September 2014 examination, the Veteran had painful extension at 5 degrees. The September 2014 and September 2020 VA examiners indicated that the Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of range of motion. At the September 2014 examination, the examiner indicated that the Veteran had right knee functional loss and/or functional impairment in terms of less movement than normal, pain on movement, and swelling. The September 2020 VA examiner found that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran’s functional ability with repeated use over a period of time. The September 2020 examiner indicated that the examination was conducted during a flare up. The examiner found that pain, weakness, fatigability, and incoordination significantly limited the Veteran’s functional ability with flare ups. The examiner indicated that during periods of pain, weakness, fatigability, incoordination, and flareups, the Veteran’s flexion would be limited to 110 degrees and 0 degrees for extension. Also, the examiner indicated that there was objective evidence of pain on passive range of motion testing and when the joint was used in non-weight bearing. 1. A rating in excess of 10 percent for a right knee disability. For the following reasons, a rating in excess of 10 percent for the right knee disability is not warranted. During the appeal period, the Veteran reported right knee pain, limited and painful range of motion, flare ups, and functional impairment. The Veteran is competent to report the symptoms associated with his right knee disability and the extent of his impairment during flare ups of symptoms, and the Board has no reason to challenge the credibility of his contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Regardless of the competent and credible reports of flare ups, pain, and other functional impairments, the preponderance of the evidence supports the conclusion that the Veteran’s right knee symptoms have most closely approximated the criteria for 10 percent rating under DC 5260 throughout the appeal period. To this extent, the evidence of record shows that the Veteran’s right knee flexion was limited, at worst, to 110 degrees with pain and that his right knee extension was not limited, but that he had pain upon extension at 5 degrees. Furthermore, the evidence reflects that the Veteran denied flare ups at the September 2014 examination; however, he indicated during the September 2020 examination, he had right knee flare-ups that occurred once a week that lasted from three to four days. The September 2020 VA examiner indicated that the examination was conducted during a period when the Veteran was experiencing a flare up. The ranges of motion of the right knee during a flare up was recorded as flexion to 110 degrees with pain and extension was to 0 degrees, with pain. Additionally, the examiner indicated that during periods of pain, weakness, fatigability, and incoordination the Veteran’s flexion would be limited to 110 degrees and 0 degrees for extension. In sum, during a flare up, the Veteran’s flexion was limited to 100 degrees and extension was not limited. During periods of pain, weakness, fatigability, and incoordination, the Veteran’s flexion would be limited to 110 degrees and 0 degrees for extension. Accordingly, the evidence shows that even considering pain, flare ups, and other functional factors, the Veteran’s right knee symptoms have not been shown to have been so disabling to actually or effectively result in limitation of knee right flexion more nearly approximating 30 degrees or limitation of right knee extension more nearly approximating 10 degrees, which are the requirements for a 20 percent rating for limitation of knee flexion under DC 5260 and a compensable (10 percent) rating for limitation of knee extension under DC 5261, respectively. The Veteran’s current 10 percent rating under DC 5260 compensates him for his right knee limited range of motion, flare ups, and functional loss of the right knee. See Petitti, 27 Vet. App. at 424-30; Burton, 25 Vet. App. at 3-5. Notably, during the September 2020 examination, the examiner indicated that the Veteran had a meniscus (semilunar cartilage) condition. DC 5258 provides for a single 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Specifically, the September 2020 examiner indicated that the Veteran had a meniscal tear and repair. Although the examiner indicated that the Veteran had frequent episodes of joint pain and joint effusion, there was no meniscal dislocation. The Board finds that a separate 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, is not warranted, as the examiner specifically indicated that there was no dislocated semilunar cartilage. Additionally, there has been no evidence of right knee ankylosis, cartilage dislocation or removal, impairment of the tibia or fibula, or genu recurvatum at any time during the appeal period. Therefore, separate/higher ratings are not warranted under DCs 5256, 5258, 5259, 5262, or 5263 at any time during the appeal period. As the preponderance of the evidence is against higher or separate ratings, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. A rating in excess of 10 percent for right knee lateral instability. For the following reasons, a rating in excess of 10 percent for left knee instability is not warranted. The Veteran’s right knee instability did not more nearly approximate moderate instability. For example, during the VA examinations, the Veteran did not report instability; however, he did report during the September 2014 examination a giving way. The September 2014 examination report shows that instability and joint stability testing were normal. At the September 2020 examination, the examiner indicated that the Veteran was unable to perform stability testing due to pain; however, he indicated that there was no history of recurrent subluxation or lateral instability. In sum, the evidence reflects that the flare up symptoms and other functional impairments have not been so severe, frequent and/or prolonged to warrant the next higher percent ratings. A preponderance of the evidence shows that even considering pain, flare up symptoms, and other functional factors, the Veteran’s right knee symptoms have not been shown to have been so disabling to actually or effectively result in moderate right knee instability. Therefore, a rating in excess of 10 percent for right knee instability is not warranted. Accordingly, the preponderance of the evidence is against a rating in excess of 10 percent for right knee lateral instability. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. The issue of service connection for an upper respiratory disability, to include a sinus disability and as due to exposure to environmental hazards in the Southwest Asia theater of operations, is remanded. The Veteran claims that during service he experienced upper respiratory and sinus symptoms, such as difficulty breathing, irritation in eyes, sinus infections, and that he has continued to experience such symptoms since service. See Board hearing transcript dated August 2019. The Veteran attributes his above symptoms to his exposure to environmental hazards, such as dust, sand, chemical, toxic fumes from burn-pits, and environmental pollutants, during his service in Southwest Asia. In January 2020, the Board remanded the appeal to schedule the Veteran for a VA examination and for an examiner to provide an opinion as to whether the Veteran had an upper respiratory disability or sinus disability or whether any symptoms may be attributed to an undiagnosed illness or a medically unexplained chronic multi symptom illness pursuant to 38 C.F.R. § 3.317. In September 2020, the Veteran was afforded VA examinations. The examiner diagnosed allergic rhinitis and indicated that the Veteran had not been diagnosed as having a respiratory or sinus disability. The September 2020 VA examiner opined that the Veteran’s “sinus symptoms/allergic rhinitis” did not manifest in service and was not otherwise related to service, to include as due to an environmental exposure in Southwest Asia. The examiner reasoned that the Veteran’s service and medical records did not show shortness of breath, respiratory or sinus conditions until October 2018 when a VA treatment provider diagnosed allergic rhinitis. The examiner concluded that allergic rhinitis occurred as acute reactions to allergens, such as pollen, mold, animal dander, or dust. The September 2020 opinion is flawed for two reasons. First, the examiner failed to consider the Veteran’s reports of sinusitis/rhinitis and respiratory symptoms in and since service. To this extent, the examiner indicated that the Veteran’s service and medical records did not show symptoms of sinus symptoms or allergic rhinitis. During the August 2019 Board hearing, the Veteran testified that when he was stationed in Southwest Asia, there was “no sick call”; rather a medic assigned to the section who did not document medical treatment. Also, during the September 2020 VA examination, the Veteran reported that his shortness of breath began when he returned from his deployment in Kuwait. Second, the examiner did not address whether the Veteran’s reported symptoms where a chronic disability resulting from an undiagnosed illness related to his Southwest Asia service, or whether they were a medically unexplained chronic multi symptom illness defined by a cluster of signs or symptoms. Therefore, in light of the flawed September 2020 opinion, a remand is necessary to address the Veteran’s claim of service connection for an upper respiratory disability, to include a sinus disability. 2. The issue of service connection for a right lower extremity disability, to include as secondary to service-connected right and left knee disabilities and as due to exposure to environmental hazards in the Southwest Asia theater of operations, is remanded. 3. The issue of service connection for a left lower extremity disability, to include as secondary to service-connected right and left knee disabilities and as due to exposure to environmental hazards in the Southwest Asia theater of operations, is remanded. In January 2020, the Board remanded the appeal to obtain an opinion to address whether the Veteran’s right and left lower extremity disabilities manifested in service or is otherwise related to service, to include as due to environmental exposures during service in Southwest Asia. In September 2020, the Veteran was afforded a VA examination. The examiner diagnosed sciatica in the right and left lower extremities and opined that they were less likely than not related to his military service. Although the examiner attributed the Veteran’s sciatica to his non-service-connected low back disability, the examiner did not provide a rationale as to why the Veteran’s disabilities did not manifest in service or were due to his service. Therefore, in light of the flawed September 2020 opinion, a remand is necessary to address the Veteran’s claims of service connection for right and left lower extremity disabilities. 4. The issue of a rating in excess of 10 percent for kidney stones, prior to September 25, 2020, is remanded. 5. The issue of a rating in excess of 30 percent for kidney stones since September 25, 2020, is remanded. During an April 2020 VA treatment visit, the Veteran identified relevant outstanding private treatment records. Specifically, he indicated that in 2019, he had kidney stones that required two surgeries; the kidney stones were removed. He reported that he was scheduled to “follow up with his private urologist.” A remand is required to allow VA to obtain authorization and request these records. The matters are REMANDED for the following action: 1. Request the Veteran’s private urology treatment records regarding his treatment for his kidney stones since 2013. 2. Obtain an opinion from an examiner regarding the Veteran’s claim of service connection for an upper respiratory disability, to include a sinus disability. The Veteran does not need to be examined, unless the examiner determines it is necessary. The examiner is requested to address each of the following questions: (a.) Whether any of the Veteran’s reported upper respiratory and sinus symptoms, such as difficulty breathing, irritation in eyes, sinus infections, shortness of breath reported during the Board hearing and the September 2020 examination are attributable to a known clinical diagnosis. (b.) For any identified diagnosis, to include allergic rhinitis, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disability manifested in service or is otherwise related to service, to include as due to environmental exposures in Southwest Asia, such as dust, sand, chemical, toxic fumes from burn-pits, burning oil wells, and environmental pollutants. (c.) Alternatively, if any of the Veteran’s symptoms cannot be attributed to a known clinical diagnosis, the examiner should indicate whether such symptomatology represents an objective indication of chronic disability resulting from undiagnosed illness related to the Veteran’s Southwest Asia service, or a medically unexplained chronic multi symptom illness defined by a cluster of signs or symptoms. If the Veteran’s symptoms are found to represent an objective indication of chronic disability resulting from either an undiagnosed illness or a chronic multi symptom illness, the examiner should also describe the extent to which the illness has manifested. The examiner should consider the Veteran’s report that when he was stationed in Southwest Asia, there was “no sick call”; rather a medic assigned to the section who did not document medical treatment. The examiner must provide a rationale for each opinion. 3. Obtain an opinion from an examiner regarding the Veteran’s claims of service connection for right and left lower extremity disabilities. The Veteran does not need to be examined, unless the examiner determines it is necessary. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right and left lower extremity disabilities (diagnosed as sciatica), had its/their onset in service or is/are otherwise related to service, to include as due to environmental exposures in Southwest Asia. The examiner must provide a rationale for the opinion. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.