Citation Nr: 21011990 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-07 207 DATE: March 3, 2021 ORDER An evaluation in excess of 20 percent for left knee retropatellar pain syndrome with instability is denied. An evaluation in excess of 20 percent for right knee retropatellar pain syndrome with degenerative joint disease and instability is denied. An evaluation in excess of 10 percent for left knee chondromalacia patella syndrome with limitation of motion is denied. An evaluation in excess of 10 percent for right knee chondromalacia patella syndrome with degenerative joint disease and limitation of motion is denied. REMANDED Entitlement to service connection for a right ankle disorder, to include as secondary to service-connected right and left knee disabilities, is remanded. Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected right and left knee disabilities, is remanded. Entitlement to service connection for a right shoulder disorder, to include as secondary to service-connected right upper extremity cubital and carpal tunnel syndromes is remanded. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected bilateral upper extremity cubital and carpal tunnel syndromes is remanded. Entitlement to service connection for a left shoulder disorder, to include as secondary to service-connected left upper extremity cubital and carpal tunnel syndromes is remanded. Entitlement to an evaluation in excess of 20 percent for cubital tunnel syndrome and carpal tunnel syndrome of the left upper extremity is remanded. FINDINGS OF FACT 1. The Veteran’s left knee disability is manifested by complaints of pain with flexion limited to no worse than 70 degrees, with full extension and no objective findings of severe instability. 2. The Veteran’s right knee disability is manifested by complaints of pain with flexion limited to no worse than 70 degrees, with full extension and no objective findings of severe instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003-5010, 5260, 5261 (2020). 2. The criteria for a rating in excess of 10 percent for right knee chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003-5010, 5260, 5261 (2020). 3. The criteria for a rating in excess of 20 percent for left knee retropatellar pain syndrome with instability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2020). 4. The criteria for a rating in excess of 20 percent for right knee retropatellar pain syndrome with instability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1994 to May 1998. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in May 2018. Duties to Notify and Assist Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. 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). The Veteran offered testimony before the undersigned at a Board hearing in September 2017. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2020); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the May 2018 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2020). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155, 38 C.F.R. § 4.1 (2020). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2020). Where entitlement to compensation has 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, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2020). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2020). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. See DeLuca, 8 Vet. App. 202. Although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain 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.” Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in a non-arthritis context, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). VA amended portions of the criteria for rating Musculoskeletal System and Muscle Injuries effective from February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As there is no evidence dated subsequent to February 7, 2021 of record, the Board will apply the prior versions of the applicable regulations. 1. An evaluation in excess of 20 percent for left knee retropatellar pain syndrome with instability is denied. 2. An evaluation in excess of 20 percent for right knee retropatellar pain syndrome with degenerative joint disease and instability is denied. The Veteran’s left and right knee instability are rated as 20 percent disabling under Diagnostic Code 5257. A 30 percent evaluation is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “severe” means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). VA examinations were conducted in November 2010, April 2012, September 2016, and December 2019. The Veteran reported instability at each of those examinations. Upon objective testing, there was normal stability at each of those examinations. VA examiners indicated that left knee or right knee subluxation was not noted. Even when considering the Veteran’s credible hearing testimony and statements, severe instability was not asserted. She reported falls and give-way. The VA treatment records, however, do not indicate severe instability causing falls and/or give-way. Several VA records, including those dated in 2013, indicated there were no falls. In 2011, 2012, 2018, and 2020 records, the Veteran denied falls. Additionally, those records demonstrate normal gait. The Board assigns less probative value to the Veteran’s lay statements based on a lack of supporting evidence of instability and the conflicting evidence of no reported falls in treatment records. Accordingly, an increased evaluation is not warranted. 3. An evaluation in excess of 10 percent for left knee chondromalacia patella syndrome with limitation of motion is denied. 4. An evaluation in excess of 10 percent for right knee chondromalacia patella syndrome with degenerative joint disease and limitation of motion is denied. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1). Diagnostic Code 5260 concerns limitation of leg flexion. Ten, 20, and 30 percent ratings are warranted where flexion is limited to 45, 30, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Standard range of motion of a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Diagnostic Codes 5260 and 5261. The Veteran’s left and right knee limitation of motion (flexion) disability are rated as 10 percent disabling under Diagnostic Code 5260. At her Board hearing the Veteran indicated that she was taking Naproxen for pain and inflammation of her knees. Sometimes when walking her knee would give out and when bending down to get something it was difficult to stand back up. Her knees would swell if she walked to long and they would often “crack, snap, crackle, and pop.” She could walk maybe a third of a mile before having problems with her knees. She wanted to wear a knee brace but was told not to wear one as it might limit her mobility. On a recent vacation the Veteran was barely able to walk up and down one floor of stairs. VA examinations in November 2010, April 2012, September 2016 and December 2019, showed left knee flexion from 70 to 140 degrees, and right knee flexion from 70 to 140 degrees. Thus, the evidence does not show left knee or right knee flexion limited to 30 degrees. Accordingly, an increased evaluation is not warranted. The Board has considered additional limitation of function due to factors such as knee pain, weakness, incoordination, and fatigability. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has made credible complaints of knee pain and other functional impairments, such as credible complaints that her knee pain has resulted in limiting her standing, walking, and squatting activities. Although flare-ups have been noted, the December 2019 VA examiner noted that such resulted in just 5 degrees of additional limitation of flexion to 115 degrees. Throughout the appeal period, there have been findings such as pain during both passive and active range of motion testing, and with weight-bearing, has been noted. However, the Veteran has been able to perform left knee and right knee repetitive-use testing, and muscle strength testing of the knees has been at least 4/5 and mostly 5/5 in the appeal period. In sum, there have been no findings regarding functional impairment from any examiner indicating that the Veteran has a left knee or right knee disability picture approximating more limited range of motion that would warrant a higher evaluation. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2020); DeLuca. All potentially applicable diagnostic codes have been considered. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (holding that the Board must consider all potentially applicable regulatory provisions). Diagnostic Code 5261 pertains to limitation of leg extension. Ten, 20, 30, 40, and maximum 50 percent ratings are warranted where extension is limited to 10, 15, 20, 30, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A claimant who has both limitation of flexion and limitation of extension of the same leg may receive separate ratings under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-2004. A claimant who has arthritis and instability of the knee may receive separate ratings under Diagnostic Codes 5003 and 5257. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-98; VAOPGCPREC 23-97. In each of the VA examinations reports and in VA treatment records, there was full extension or zero degrees extension. Thus, no higher or separate evaluations are warranted. The evidence does not reflect left knee or right knee ankylosis, semilunar cartilage involvement, impairment of the tibia and fibula, or genu recurvatum. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263. Although a history of right knee meniscal tear was noted, the 2016 VA examination report noted there were no current symptoms. The other VA examination reports indicated no meniscus involvement. Based on the foregoing, separate or increased ratings are not warranted. The Board has been mindful of the “benefit-of-the-doubt” rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit more favorable determinations. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 5. Entitlement to service connection for a right ankle disorder, to include as secondary to service-connected right and left knee disabilities, is remanded. 6. Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected right and left knee disabilities, is remanded. Remand is required to attempt to obtain verification of a prior period of active duty service and to attempt to obtain any service treatment records associated with that service. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records. 38 C.F.R. § 3.159(c)(2). In the Veteran’s DD-214, it notes 6 months prior active service. In a July 2011 VA examination report, the Veteran reported a knee injury on AIT in March-April 1993. She reported she was given a profile and symptoms resumed. No such records are associated with the claims file, and it does not appear any attempts were made to obtain these records. Remand is also required for an addendum opinion that addresses all diagnoses of record. A November 2010 VA examination diagnosed ankle strain. A July 2011 VA examination diagnosed bilateral plantar calcaneal spurs, and the 2019 VA examination diagnosed tendonitis. The opinions do not address each of these. 7. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected bilateral upper extremity cubital and carpal tunnel syndromes is remanded. 8. Entitlement to service connection for a left shoulder disorder, to include as secondary to service-connected left upper extremity cubital and carpal tunnel syndromes is remanded. 9. Entitlement to service connection for a right shoulder disorder, to include as secondary to service-connected right upper extremity cubital and carpal tunnel syndromes is remanded. 10. Entitlement to an evaluation in excess of 20 percent for cubital tunnel syndrome and carpal tunnel syndrome of the left upper extremity is remanded. Remand is required to obtain adequate VA examinations and opinions. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As for the issue of service connection for cervical spine disability, the July 2020 VA addendum opinion stated that the Veteran’s cervical spine disability was not likely related to service. In doing so, the examiner appeared to rely solely on the lack of objective documentation of cervical spine treatment in the service treatment records and failed to address the Veteran’s lay statements of continuity of symptomatology. The July 2020 VA addendum opinion also did not provide an adequate opinion concerning whether the Veteran’s left and right shoulder disabilities were aggravated by the service-connected left and right carpal tunnel syndrome disabilities. As such, additional examinations must be scheduled. Based on the foregoing, and development ordered herein, the issue of entitlement to an evaluation in excess of 20 percent for cubital tunnel syndrome and carpal tunnel syndrome of the left upper extremity is remanded as likely intertwined with the above-noted issues. The matters are REMANDED for the following action: 1. Attempt to verify the Veteran’s ACDUTRA and INACDUTRA periods prior to her active duty service. Obtain the Veteran’s service treatment records from that period. If any requested information or records are not available, or the search for any such information or records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records or such information must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her representative. 2. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after June 25, 2020. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and the representative. 3. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the appellant which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and the representative. 4. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the ankle disorders from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. First, he examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral ankle strain, bilateral ankle tendonitis, and bilateral calcaneal spurs, had onset in, or are otherwise related to, active service, or are due to a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA. The examiner must address the following: (1) any relevant service treatment records; (2) the 2010 VA examination report; (3) the 2011 VA examination report; (4) the 2019 VA examination report; (5) March 2006 and October 2010 VA treatment records wherein the Veteran reported ankle pain and then ankle pain of 2 years, respectively. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her cervical spine disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion whether the Veteran’s cervical spondylosis at least as likely as not (50 percent or greater probability) had onset in, or within one year of service discharge, or was otherwise caused by, military service. Second, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spondylosis was aggravated by the bilateral upper extremity carpal and cubital tunnel syndromes? 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of the left and right shoulder disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion whether the Veteran’s left or right shoulder disability at least as likely as not (50 percent or greater probability) had onset in, or within one year of service discharge, or was otherwise caused by, military service. Second, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left or right shoulder disability was aggravated by the bilateral upper extremity carpal and cubital tunnel syndromes? 5. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2020). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.