Citation Nr: 21012170 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 20-05 111 DATE: March 3, 2021 ORDER The appeal for an increased rating for multilevel lumbar degenerative disc disease and joint disease with myofascial pain and scoliosis is dismissed. Service connection for arachnoid cyst is denied. Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease with chondrocalcinosis is denied. Entitlement to a separate 10 percent rating for right knee instability from October 15, 2009, is granted. REMAND Entitlement to a higher initial rating for diabetes mellitus with erectile dysfunction is remanded. FINDING OF FACT 1. In November 2020, prior to the promulgation of a Board decision, the Veteran indicated that he wished to withdraw his appeal for an increased rating for multilevel lumbar degenerative disc disease and joint disease with myofascial pain and scoliosis. 2. The probative medical evidence does not establish an arachnoid cyst at least as likely as not onset in service and/or is otherwise related to service. 3. Since the effective date of the grant of service connection, the Veteran’s left knee disability is manifest by limitation of flexion to no less than 100 degrees, swelling, and slight instability. CONCLUSION OF LAW 1. The criteria for withdrawal of the appeal for an increased rating for multilevel lumbar degenerative disc disease and joint disease with myofascial pain and scoliosis by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for arachnoid cyst have not been met. 38 U.S.C. §§ 1110, 1131, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an initial rating in excess of 10 percent for left knee degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5260. 4. Since the effective date of the grant of service connection, the criteria for an initial 10 percent rating, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to July 1990. He is in receipt of the Combat Infantryman Badge and Purple Heart among other awards and decorations. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2017, March 2018, and July 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. A transcript is of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800 (c). Although new evidence was received following the statements of the case, the evidence was duplicative and/or irrelevant to the issues being decided herein. Accordingly, no waiver or supplemental statement of the case is necessary concerning the issues decided herein. 1. The appeal for an increased rating for multilevel lumbar degenerative disc disease and joint disease with myofascial pain and scoliosis is dismissed. 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. The withdrawal may be made by the appellant or by his or her authorized representative, and it must be in writing or be made on record during a hearing. 38 C.F.R. § 20.204. During his November 2020 Board hearing before the undersigned and prior to the promulgation of a Board decision, the Veteran indicated that he wished to withdraw his appeal of the claim for an increased rating for multilevel lumbar degenerative disc disease and joint disease with myofascial pain and scoliosis. See November 2020 Board hearing transcript at 2-3. He expressed on the record that he fully understood the consequences of the withdrawal. Thus, the Board finds the Veteran has explicitly, unambiguously, and with a full understanding of the consequences withdrawn the appeal with respect to this issue and there remains no allegations of error of fact or law for appellate consideration with respect to this issue. 38 U.S.C. § 7105; 38 C.F.R. § 20.204; see Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review this issue, and dismissal is warranted. 2. Service connection of arachnoid cyst is denied. The Veteran seeks service connection for arachnoid cyst. For the reasons that follow, the Board finds entitlement to service connection is not warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran contends his arachnoid cyst onset in service when he was blown headfirst into a sandbag wall during a firefight without medical attention. The Veteran served in Vietnam from April 1968 to June 1969. He engaged in combat while on active duty as exemplified, in part, by his award of the Combat Infantryman Badge and Purple Heart as shown on his DD Form 214. In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304 (d). The Federal Circuit has held that in the case of a combat veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A June 2018 VA examination report reflects a current diagnosis of brain arachnoid cyst. Thus, the question for the Board is whether the Veteran’s current condition began during active service or is otherwise related to an in-service injury or disease. The Board finds that the most probative medical evidence of record shows that it did not. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In reaching this conclusion, the Board notes that the Veteran’s service treatment records, which span many years and appear to be complete, fail to show a diagnosis of an arachnoid cyst. Although the Board will presume the Veteran’s current assertion that he flew headfirst into a sandbag during a firefight, it is noted that he affirmatively denied ever having experienced a head injury on numerous Reports of Medical History completed in connection with physical examinations after he returned from Vietnam, including on the report completed in May 1990 when he was discharged from service. Review of medical records dated in January 2009 and February 2009 shows an MRI was ordered by the audiology department in January 2009 due to asymmetric low frequency hearing loss. During the course of review of the MRI findings, the current arachnoid cyst was discovered. A March 2009 VA treatment record shows the sinus mass was noted to have imaging features typical of an arachnoid cyst. Subsequent treatment records reflect an ongoing diagnosis of sinus neoplasm and/or arachnoid cyst. The Veteran has submitted a private medical opinion in support of service connection. In October 2017, Dr. E.N. conducted an independent medical review. Her report indicates the Veteran reported being blown headfirst into a sandbag wall during a firefight in November 1968. The Veteran indicated he may have been briefly unconscious but quickly recovered, and no medical attention was received. Dr. E.N. noted six MRIs were conducted in February and March 2009 and revealed a 2.5 by 1-centimeter lesion centered slightly anterior to Meckel’s cave in the brain that is consistent with an arachnoid cyst. She also stated that an “Army doctor” had explained to the Veteran that the cyst was probably the result of a spinal or head injury, which caused a brain stem leak. Dr. E.N. She noted that he never been in an auto accident nor suffered a spinal or neck injury, with the exception of the combat injury in November 1968. On this basis, she opined it is as likely as not that the arachnoid cyst is the result of the Veteran being blown into the sandbag wall causing an undiagnosed (until 2009) brain stem leak. The claims file includes TriCare records. A November 2017 treatment record shows that during the course of treatment for other conditions, the Veteran sought to discuss the 2009 MRI results and further evaluation of the cyst. The note indicates the Veteran had a history of a head injury when in combat. The TriCare records do not contain any nexus opinion specifically linking the current arachnoid cyst to the reported head injury in service, or suggestive of such an etiology. The Veteran underwent a VA examination in June 2018. During the examination, he reported sustaining a head and back injury while in service in 1968 after being thrown into a wall during an explosion. He asserted that he briefly lost consciousness but returned to fight. The examiner indicated that he had reviewed the Veteran’s claim file, including Dr. E.N.’s October 2017 opinion. He also noted that the Veteran’s arachnoid cyst was an incidental finding on the 2009 MRI, and that he had five subsequent MRI’s with the same finding. The examiner indicated that he has no symptoms from the cyst and is not being, and had not been, treated for such. The course since onset has been stable. Following the record review and physical examination, the examiner opined that the arachnoid cyst was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there were no complaints or treatment during service to indicate this cyst was incurred during military service. The examiner also explained that arachnoid cysts are often congenital or present at birth, but there is a rarity that an arachnoid cyst can develop secondary to trauma. The examiner indicated, however, that the cyst would have presented itself right after the trauma or shortly after. For these reasons, he found it less likely than not that the cyst is related to the reported trauma in service. Thus, on the question of medical nexus, there are conflicting opinions in favor of and against the claim. The VA opinion is found to be the most persuasive. The opinion from Dr. E.N. is less probative than the VA opinion as there was no rationale, other than to note that the Veteran has not had an auto accident nor suffered a spinal or neck injury other than his reported 1968 injury. The VA opinion, in contrast, was supported by a rationale that include a more thorough explanation for the examiner’s opinion. The opinion was also based on a thorough medical examination and review of the claims file. In short, the Board finds the competent medical evidence with respect to causal nexus is not at least in relative equipoise as to whether the Veteran’s current arachnoid cyst is related to service. For this reason, service connection for arachnoid cyst is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease, left knee with chondrocalcinosis is denied. 4. Entitlement to a separate, initial 10 percent rating, and no higher, for right knee instability is granted. The Veteran seeks an initial rating in excess of 10 percent for left knee degenerative joint disease with chondrocalcinosis. Service connection for this disability was granted in a November 2017 Board decision and effectuated by a July 2018 rating decision. The RO awarded an initial disability rating of 10 percent rating effective July 9, 2009, pursuant to 38 C.F.R. § 4.71a, DCs 5003-5260. The current appeal stems from this rating decision. A March 2020 rating decision granted a separate 10 percent rating for left knee instability effective February 18, 2020 pursuant to 38 C.F.R. § 4.71a, DCs 5003-5257. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The assigned Diagnostic Code 5003 suggests that the left knee disability has manifested as osteoarthritis and that the left knee disability has not had compensable limitation of motion (i.e. limitation of flexion or extension) at any time during the relevant rating period. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). 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.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The preponderance of the evidence is against a rating in excess of 10 percent for left knee degenerative joint disease with chondrocalcinosis. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and repetitive use. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran has stiffness would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. A May 2010 private urgent care treatment record notes no evidence of effusion, fracture or subluxation, or signs of degenerative or erosive arthritis. An October 2014 VA treatment record notes joint pain localized in the knee. An April 2011 correspondence from the Veteran’s primary care physician noted periodic knee pain, especially after being stationary for a period. The Veteran presented for a VA examination in September 2012. While this examination was not fully compliant with the requirements set forth by Correia, 28 Vet. App. 158 and Sharp, 29 Vet. App. at 33, it does contain some relevant findings that are included below. The September 2012 examination report reflects the Veteran reported flare-ups, including stiffness ten times a year for less than one hour. Range of motion testing revealed left knee flexion to 135 degrees with objective evidence of painful motion at 130 degrees, and left knee extension to 0 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with post-test left knee flexion to 125 degrees and extension to 0 degrees. The examiner noted less movement than normal and pain on movement as contributing factors of disability. Anterior, posterior, and medial-lateral instability tests were normal. No evidence or history of recurrent patellar subluxation/dislocation, meniscal conditions, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment was found on examination. A September 2012 imaging report notes left knee tricompartmental mild degenerative change and mild chondrocalcinosis of the menisci. A June 2015 VA treatment record notes osteoarthritis of the knees. February 2015, September 2015 and April 2016 VA treatment records note joint pain localized in the knee. A June 2016 memorandum from the Veteran’s physician notes persistent left knee instability/laxity, which has been gradually getting worse over time. Subsequent medical records reflect ongoing knee pain complaints. A July 2019 VA exam scheduling request notes a VA knee examination was cancelled because the Veteran failed to show. The Veteran most recently underwent a VA examination in February 2020. The examiner noted left knee meniscal tear, anterior cruciate ligament tear, chondrocalcinosis, and degenerative arthritis. During the examination, the Veteran reported progressive pain in the left knee that will reach a ‘7/10’ when it becomes unstable. He reported intermittent instability and severe pain several days a year, lasting less than a few minutes. The Veteran did not report flare-ups, but the examiner noted functional loss or impairment of decreased movement. Range of motion testing revealed left knee flexion to 110 degrees and extension to 0 degrees. The Veteran was able to perform repetitive-use testing without additional loss of function or range of motion after three repetitions. The examiner indicated pain significantly limits functional ability with repeated use over a period of time such that flexion is limited to 100 degrees and extension to 0 degrees. No muscle atrophy, ankylosis, recurrent subluxation, recurrent effusion, recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment were found on examination. Slight lateral instability and 0 to 5 millimeters of anterior instability were noted. The examiner noted a history of meniscal dislocation with repair in 2013. The Veteran reported regular use of trekking poles for left knee instability. A February 2020 imaging report notes very mild degenerative changes of the lateral compartment and chondrocalcinosis of the medical and lateral compartment. During his November 2020 Board hearing, the Veteran reported left knee instability, laxity, and use of trekking poles and/or a cane. After a review of the evidentiary record, the Board finds the preponderance of the evidence weighs against entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease with chondrocalcinosis. Notably, the Veteran’s left knee flexion has been limited to no less than 100 degrees. Left knee extension showed no limitation of motion during the appeal period. The Board reiterates that a higher rating under Diagnostic Code 5260 requires limitation of flexion to 30 degrees and a higher rating under Diagnostic Code 5261 requires limitation of extension to 15 degrees. Thus, a higher rating is not warranted for limitation of flexion or extension under Diagnostic Codes 5260 or 5261, even with consideration of the DeLuca factors. The Veteran’s 10 percent rating is based on painful motion of the knee and already reflects consideration of the DeLuca factors. 38 C.F.R. §§ 4.40, 4.45, 4.59. Moreover, while the Board acknowledges the Veteran’s lay reports of pain; there is no evidence of functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time, that is shown to results in limitation of motion more nearly approximating flexion limited to 30 degrees. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Higher or separate ratings under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263 are not warranted because the evidence of record does not demonstrate ankylosis of the left knee, dislocated or removed semilunar cartilage, impairment of the tibia or fibula, and/or genu recurvatum. However, the Board does find that the Veteran’s separate rating for left knee instability is warranted under Diagnostic Code 5257 for the entirety of the appeal period. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Instability As noted, a March 2020 rating decision granted a separate 10 percent rating for left knee instability effective February 18, 2020 pursuant to 38 C.F.R. § 4.71a, DCs 5003-5257. The Veteran has given subjective reports that his left knee gives out, causes him to fall, or statements similarly indicating left knee instability. While the presence of instability and subluxation can be detected on objective testing and the competent medical evidence of record indicates both instability and no instability throughout the appeal period, the Board notes the Veteran is competent to report such symptoms. In consideration of these competent reports, and resolving any doubt in the Veteran’s favor, the Board finds that a 10 percent rating for slight instability is warranted under Diagnostic Code 5257 for the entirety of the appeal period. That is, since the effective date of the grant of service connection for the left knee. In reaching this conclusion, the Board recognizes the regulations regarding Diagnostic Code 5257 were amended effective February 7, 2021. Prior to February 7, 2021, a higher rating is not warranted under the pre-February 7, 2021 amendments as such would require moderate instability and the competent medical evidence of record reflects no more than slight instability throughout the appeal period. See February 2020 VA examination report. The Board further finds a higher rating is not warranted beginning from February 7, 2021; under the revised criteria. This is because the evidence does not reflect a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker; sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability and medical provider prescribes a brace and/or assistive device; and/or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation—as required for a higher rating under the revised Diagnostic Code 5257 criteria. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for left knee degenerative joint disease; however, resolving reasonable doubt in the Veteran’s favor, a separate 10 percent rating for instability is granted for the entirety of the appeal period. In reaching these conclusions, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 43, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 5. Entitlement to a higher initial rating for diabetes mellitus with erectile dysfunction is remanded. The Veteran was last afforded a VA diabetes mellitus examination in February 2017. During his November 2020 Board hearing, the Veteran indicated his diabetes mellitus had worsened such that he now requires regulation of activities as evidenced by a February 2020 private disability benefits questionnaire (DBQ). Notably, this DBQ also indicates a current diagnosis of diabetic retinopathy as a complication of diabetes. Accordingly, this matter is remanded to afford the Veteran an opportunity to undergo an examination to assess the current nature and severity of his diabetes mellitus. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected diabetes mellitus, to include diabetic retinopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.Aoughsten, Associate 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.