Citation Nr: 21009885 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-06 716 DATE: February 23, 2021 ORDER Entitlement to a separate disability rating of 10 percent, but no more, for left knee instability is granted on and after October 27, 2010, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a separate disability rating of 10 percent, but no more, for right knee instability is granted on and after October 27, 2010, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome of the left knee is denied. Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome of the right knee is denied. New and material evidence having been submitted, the claim of service connection for chronic obstructive pulmonary disease (COPD) is reopened. REMANDED Service connection for COPD is remanded. FINDINGS OF FACT 1. For the period on appeal, the Veteran’s patellofemoral pain syndrome of the left knee was manifested as painful motion and slight lateral instability, but not ankylosis, limitation of flexion to 45 degrees, limitation of extension to 10 degrees, dislocated or removed semilunar cartilage, or impairment of the tibia or fibula. 2. For the period on appeal, the Veteran’s patellofemoral pain syndrome of the right knee was manifested as painful motion and slight lateral instability, but not ankylosis, limitation of flexion to 45 degrees, limitation of extension to 10 degrees, dislocated or removed semilunar cartilage, or impairment of the tibia or fibula. 3. The Veteran’s claim for service connection for COPD was denied in a March 2007 rating decision on the basis that the evidence failed to establish a current disability. He was notified of this decision and timely disagreed with it, but did not perfect a substantive appeal within one year of the rating decision or 60 days of the Statement of the Case, and it became final. 4. Evidence received since the March 2007 rating decision raises a substantial possibility of substantiating the claim of service connection for COPD. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, on and after October 27, 2010, the criteria for a separate rating of 10 percent, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2020). 2. With resolution of reasonable doubt in the Veteran’s favor, on and after October 27, 2010, the criteria for a separate rating of 10 percent, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. The criteria for a disability rating in excess of 10 percent for patellofemoral pain syndrome of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2020). 4. The criteria for a disability rating in excess of 10 percent for patellofemoral pain syndrome of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5260 (2020). 5. The March 2007 rating decision is final with regard to the issue of service connection for COPD. New and material evidence sufficient to reopen the claim of service connection for COPD has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 19.52, 20.1103 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from May 1982 to April 1997. These matters are on appeal from a December 2011 rating decision. In a June 2018 decision, the Board remanded the issues being decided below to attempt to obtain additional records and to afford the Veteran an additional VA examination.  The Agency of Original Jurisdiction (AOJ) has done so.  The October 2019 VA examination for knee conditions is adequate because it was based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, and because it described his left and right knee in detail sufficient to allow the Board to make fully informed determinations.  There was therefore substantial compliance with the remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).   Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist with regard to the issues being decided below.  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).  Increased Ratings 1. Left Knee Instability 2. Right Knee Instability 3. Patellofemoral Pain Syndrome of the Left Knee 4. Patellofemoral Pain Syndrome of the Right Knee The Veteran contends that his patellofemoral pain syndrome of the left and right knee warrants higher ratings than those currently assigned. The left knee is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of leg extension, with a 10 percent rating on and after April 11, 1997. The right knee is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5260, with a noncompensable rating from April 11, 1997 to January 4, 2004, and a 10 percent rating on and after January 5, 2004. VA received the Veteran’s claim for increased ratings on October 27, 2010. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2020). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. “Staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed.  Hart, at 509; see also 38 U.S.C. § 5110(b)(3) (2012); 38 C.F.R. § 3.400(o)(2) (2020).  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. In this case, at least the minimum compensable rating has been in effect during the entire appeal period. Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2020). 38 C.F.R. § 4.71a, Diagnostic Code 5010 pertains to traumatic arthritis and 38 C.F.R. § 4.71a, Diagnostic Code 5260 pertains to limitation of leg flexion. Diagnostic Code 5010 provides for rating as degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2020). Diagnostic Code 5003 provides, when limitation of motion is noncompensable under the appropriate Diagnostic Code, for a 10 percent rating for each major joint or group of minor joints affected by limitation of motion. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. For rating purposes, the knee is considered a major joint. 38 C.F.R. § 4.45. As the Veteran is already in receipt of a 10 percent rating based on painful motion throughout the period on appeal, further discussion of Diagnostic Code 5010 is not warranted. Limitation of flexion of the leg is evaluated as follows: flexion limited to 15 degrees (30 percent); flexion limited to 30 degrees (20 percent); flexion limited to 45 degrees (10 percent); and flexion limited to 60 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of the leg is evaluated as follows: extension limited to 45 degrees (50 percent); extension limited to 30 degrees (40 percent); extension limited to 20 degrees (30 percent); extension limited to 15 degrees (20 percent); extension limited to 10 degrees (10 percent); and extension limited to 5 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5261. For VA purposes, a normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. There are additional Diagnostic Codes that apply to knee disorders. 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2020) pertains to ankylosis of the knee. Recurrent subluxation or lateral instability of the knee is evaluated as follows: severe (30 percent); moderate (20 percent); and slight (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5257. Meniscal conditions are evaluated as follows: dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint (20 percent); and symptomatic removal of semilunar cartilage (10 percent). 38 C.F.R. § 4.71a, Diagnostic Codes 5258 and 5259 (2020). Impairment of the tibia and fibula is evaluated as follows: nonunion with loose motion, requiring a brace (40 percent); malunion with marked knee or ankle disability (30 percent); malunion with moderate knee or ankle disability (20 percent); and malunion with slight knee or ankle disability (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2020). In a statement VA received in April 2011, the Veteran reported that his knee pain was “above 7 and 8 now on a scale 1 to 10.” The Veteran was afforded a VA examination in November 2011. The Veteran reported constant anterior pain. The Veteran also reported that his symptoms included giving way, stiffness, and swelling, but not deformity, instability, incoordination, effusions, or episodes of dislocation, subluxation, or locking. The Veteran also reported severe flare ups twice a week for 30 minutes at a time, precipitated by overactivity. He reported that he was able to stand for one hours and walk for three quarters of a mile. He also reported intermittent, occasional use of a brace. On examination, range of motion was reported as 5 degrees of extension to 125 degrees of flexion on the left and 0 degrees of extension to 135 degrees of flexion on the right. There was no objective evidence of pain with active motion on the left side, but the clinician did not answer this question with regard to the right side. There was no objective evidence of pain following active motion or additional limitation of motion on repetition. There was no ankylosis. The clinician noted no significant effects on the Veteran’s usual occupation. In his February 2015 substantive appeal (VA Form 9), the Veteran reported that his knee symptoms had worsened since the November 2011 VA examination and now included “more pain on a daily basis, more swelling and less extension.” The Veteran was afforded an additional VA examination in October 2019. The Veteran reported constant pain that was sharp in the left knee. He also reported that his knees tend to buckle at times. He did not report any flare ups or functional loss or impairment. On examination, range of motion in each knee was reported as 0 degrees of extension to 90 degrees of flexion. The range of motion did not contribute to functional loss. Pain was noted on flexion and extension and caused functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing. There was objective evidence of crepitus, but only in the right knee. There was no additional loss of range on repetition. The clinician found that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or flare ups but that, under those circumstances, pain, weakness, fatigability or incoordination would not significantly limit functional ability. There were no additional factors contributing to disability. Muscle strength was normal and there was no muscle atrophy. There was no ankylosis and the clinician found no history of recurrent subluxation, effusion, or instability. Anterior, posterior, medial, and lateral stability testing was normal. There was no tibial or fibular impairment. There was no history of a meniscal condition or knee surgery. The Veteran did not report using any assistive devices. The clinician found that the Veteran’s knee disabilities would have no impact on his ability to work. The clinician also noted that there was no objective evidence of pain on non-weight bearing and that the passive range of motion for each knee was the same as the active range. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his left and right knee instability warrants a separate 10 percent rating for each knee throughout the period on appeal. Stability testing during the period on appeal has consistently found no instability but the Veteran has consistently reported his knee giving way. Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). Because the Veteran has competently and credibly reported left and right knee instability, the Board finds that a separate 10 percent rating is warranted for slight lateral instability of each knee. The Veteran’s knee instability is not more accurately described as moderate. The medical records do not describe instability of the knee joint and the November 2019 VA examiner found that the knee joints are normal on all stability tests. The Board finds that knee instability that causes functional impairment but is undetectable on all forms of examination is best characterized as slight. The Veteran did not provide a lay description of the frequency or severity of his instability other than what was documented in his medical records. Additionally, the October 2019 VA examiner found that there was no history of lateral instability or recurrent subluxation. The preponderance of the evidence described above also shows that the Veteran’s patellofemoral pain syndrome of the left knee does not warrant a rating in excess of 10 percent under Diagnostic Code 5261. No examiner or treatment provider has found that the Veteran’s left leg extension has been limited to more than 5 degrees during this period. The preponderance of the evidence also shows that the Veteran’s left knee disability was not manifested by ankylosis or impairment of the tibia or fibula or a meniscal condition during this period. The preponderance of the evidence described above also shows that the Veteran’s patellofemoral pain syndrome of the left knee does not warrant a separate rating under Diagnostic Code 5260. The Veteran is already being compensated by the 10 percent rating assigned under Diagnostic Code 5261 for painful motion of the left knee joint. A 10 percent rating under Diagnostic Code 5260 requires limitation to 45 degrees. No examiner or treatment provider has found that the Veteran’s left leg flexion has been limited to less than 90 degrees during this period. The preponderance of the evidence described above also shows that the Veteran’s patellofemoral pain syndrome of the right knee does not warrant a rating in excess of 10 percent under Diagnostic Code 5260. No examiner or treatment provider has found that the Veteran’s right leg flexion has been limited to more than 90 degrees during this period. The preponderance of the evidence also shows that the Veteran’s right knee disability was not manifested by ankylosis or impairment of the tibia or fibula or a meniscal condition during this period. The preponderance of the evidence described above also shows that the Veteran’s patellofemoral pain syndrome of the right knee does not warrant a separate rating under Diagnostic Code 5261. The Veteran is already being compensated by the 10 percent rating assigned under Diagnostic Code 5260 for painful motion of the right knee joint. A 10 percent rating under Diagnostic Code 5261 requires limitation to 10 degrees. All extension findings during the period on appeal were either to 0 degrees or some degree of hyperextension. The Board has considered the Veteran’s lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his knee disabilities and his descriptions are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has accepted those statements as the basis for granting separate 10 percent ratings for instability of each knee. However, nothing in the Veteran’s lay statements provides a basis for assigning higher ratings than those assigned herein under any Diagnostic Code pertaining to musculoskeletal disabilities of the knee. In addition, the Board considered whether higher ratings are warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is nothing to indicate that the Veteran’s pain or any other DeLuca factor causes functional impairment equivalent to the criteria for ratings in excess of those already in effect or assigned herein. Because the Board considered the applicable ratings under every Diagnostic Code pertaining to musculoskeletal disabilities of the knee, the Board finds that there are no other potentially applicable Diagnostic Codes by which higher ratings can be assigned. 5. COPD – New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence is neither cumulative nor redundant of evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim of entitlement to service connection, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Veteran was denied service connection for depression in a March 2007 rating decision. He submitted a Notice of Disagreement in May 2007 but did not perfect an appeal within one year of the rating decision or within 60 days of the May 2008 Statement of the Case. Therefore, the March 2007 rating decision is final. 38 U.S.C. § 7105 (b)(1); 38 C.F.R. §§ 19.52, 20.1103. The basis for the March 2007 denial was a lack of evidence of a current disability. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in March 2007, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has COPD. The evidence that was of record at the time of the March 2007 rating decision included the Veteran’s service treatment records, VA treatment records, and a VA examination report. Since the March 2007 rating decision, the Veteran has been afforded VA examinations in November 2011 and October 2019, both of which included a diagnosis of COPD. As the record now contains more evidence pertinent to the issue of a current disability than it did in March 2007, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. REASONS FOR REMAND 1. Service connection for COPD is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In a January 2007 statement, the Veteran ascribed his COPD to post-service “sinus attacks.” At the time, the Veteran’s sinusitis was not service-connected. The AOJ granted service connection for maxillary sinusitis in an August 2020 rating decision. None of the VA medical opinions of record have addressed this theory of service connection. For this reason, a remand for an additional medical opinion is warranted. The matters are REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran’s COPD. The entire claims file and a copy of this remand must be made available to the clinician for review. A new physical or telehealth examination is only required if deemed necessary by the clinician. The clinician must provide opinions as to the following:  a. Whether it is as likely as not (a probability of 50 percent or greater) that any current COPD began in service, or; was caused by service, or; is otherwise related to the Veteran’s active service. b. Whether it is as least as likely as not that any current COPD caused by the Veteran’s service-connected maxillary sinusitis and allergic rhinitis.  c. Whether it is as least as likely as not that any current COPD was aggravated beyond its natural progression by the Veteran’s service-connected maxillary sinusitis and allergic rhinitis.  Although an independent review of the claims file is required, the Board calls the clinician’s attention to the Veteran’s January 2007 statement reporting multiple post-service “sinus attacks” and ascribing his COPD to them. The rationale for any opinion expressed should be provided. Note that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 2. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Then, readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.