Citation Nr: 21012928 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-31 300A DATE: March 8, 2021 ORDER Service connection for a right arm disorder, to include as due to Lyme disease or as secondary to the service-connected cervical spine disability, is denied. Service connection for left arm disorder, to include as due to Lyme disease or as secondary to the service-connected cervical spine disability, is denied. An initial evaluation in excess of 10 percent for service-connected left knee anterior cruciate ligament tear (a “left knee disability”) is denied. FINDINGS OF FACT 1. Despite VA meeting its duty to assist the Veteran is developing his claim, there is no evidence of a diagnosed right arm disability and no evidence that the reported right arm sensitivity causes any functional impairment. 2. Despite VA meeting its duty to assist the Veteran is developing his claim, there is no evidence of a diagnosed left arm disability and no evidence that the reported left arm sensitivity causes any functional impairment. 3. The Veteran’s left knee disability is manifested by normal extension and flexion to 115 degrees; there is no evidence of ankylosis, recurrent subluxation or lateral instability, dislocated cartilage, extension limited to 10 degrees, flexion limited to 30 degrees, impairment of the tibia and fibular, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a right arm disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2019). 2. The criteria for establishing entitlement to service connection for a left arm disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2019). 3. The criteria for establishing entitlement to an initial evaluation in excess of 10 percent for a service-connected left knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5263 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service in the United States Air Force from October 1987 to January 2010. The Veteran received the Southwest Asia Service Medal. The matters are on appeal from a January 2011 rating decision. In April 2018 and July 2020, the Board remanded the case for additional development. The matter has since been returned to the Board. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection – Legal Criteria Service connection is granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). A disability which is proximately due to or the result of another service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2019). This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim, that is, the probative weight of the negative evidence must be greater than that of the positive evidence. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Service connection for right arm disorder, to include as due to Lyme disease and as secondary to the service-connected cervical spine disability. 2. Service connection for left arm disorder, to include as due to Lyme disease and as secondary to the service-connected cervical spine disability. The Veteran contends that his current right and left arm disorders began during active service. Specifically, in a December 2014 statement, the Veteran reported that he has experienced bilateral arm sensitivity since active service, which he believes to be a symptom of Lyme disease. Service treatment records are negative for reports of, treatment for, or a diagnosis of a left arm disorder. Records dated in November 2006 show the Veteran sought treatment for a right wrist injury; right wrist contusion was diagnosed, and an x-ray report was negative for a right wrist fracture. Records dated in 2008 reference the Veteran’s history of Lyme disease. Post-service private and VA outpatient treatment records include an October 2010 VA examination report. At the time, the Veteran reported bilateral arm sensitivity. The examiner found no current Lyme disease or left or right arm disorder. The examiner noted the Veteran’s subjective reports but concluded that there was no current diagnosis. An August 2014 VA examination report notes the Veteran’s report of bilateral arm sensitivity, which developed during service in 1999, while being treated for Lyme’s disease. Upon examination and review of the record, the examiner found that there was no current diagnosis. The examiner noted the Veteran’s neurological examination of the bilateral upper extremities was unremarkable, as there was no evidence of weakness, decreased sensation, or unusual reaction to stimuli. The examiner also noted that there were no findings of radiculopathy or related neurological abnormalities. In July 2020, the Board acknowledged that the record was negative for a diagnosis of a bilateral arm disorder but remanded the claims for an examination to determine whether the bilateral arm symptoms resulted in functional impairment. The Veteran was scheduled for a VA examination in October 2020 to assess the nature and cause of his claimed bilateral arm disorder, but he failed to appear for the examination. The record documents that the RO tried to contact the Veteran numerous times in September and October 2020, by letter and telephone; however, the Veteran failed to respond, answer calls, or return calls. Further, in an October 6, 2020, Report of General Information, the RO documented that the Veteran answered the telephone and hung up after the RO identified the reason for the call. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in the process of developing this evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board acknowledges the Veteran's reports that his symptoms of right and left arm sensitivity began during active service; however, the Veteran—as a lay person—is not qualified to diagnose a medical condition with multiple potential causes or to provide a medical opinion about a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (explaining that lay persons are qualified to report observable symptoms and medical events but not to provide medical opinions about complex medical questions). The Board has fully considered the Veteran's assertions about observable symptoms (which he is qualified to report) and is not questioning the credibility or accuracy of his statements that his current symptoms of arm sensitivity began during service. Despite lack of a formal diagnosis, symptoms may count as a disability for VA compensation purposes if they cause functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (2018). The claims were remanded in July 2020 for the express purpose of identifying whether the Veteran’s bilateral arm symptoms resulted in functional impairment. VA was unable to obtain this information because the Veteran failed to cooperate with the RO’s attempts to provide him with a medical examination and opinion; as a result, there is neither evidence of a diagnosed bilateral arm disability nor evidence that the reported bilateral arm symptoms cause any functional impairment. Without a current disability, there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, service connection for right and left arm disorders must be denied. Increased Rating – Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2019). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2019). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1, 4.2. There is nothing in the record leading to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability manifested with symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, VA must consider the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2019). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2019). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. § 4.40. Although pain may cause functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain may result in functional loss only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, VA assesses the level of disability by measuring whether movement of the joint is reduced in various different directions, as well as whether there is more or less than movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or muscle atrophy from disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is intended to recognize that painful motion with joint or periarticular pathology causes disability. Thus, joints that are actually painful, unstable, or malaligned due to a healed injury, should receive at least the minimum compensable rating for that joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and (if possible) compared to the range of motion of the opposite undamaged joint. 38 C.F.R. § 4.59. These factors should be addressed when raised by the claimant or reasonably raised by the record, even in a non-arthritis context. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). [CONTINUED ON NEXT PAGE] 3. An initial evaluation in excess of 10 percent for a left knee disability Limitation of flexion of the leg to 60 degrees warrants a noncompensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of flexion to 45 degrees warrants a 10 percent rating. Id. Limitation of flexion to 30 degrees warrants a 20 percent rating. Id. Full range of motion of the knee is to 0 degrees extension and 0 to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II (2017). The Veteran’s left knee disability is rated as 10 percent disabling under Diagnostic Codes 5260 (limitation of flexion). See 38 C.F.R. § 4.71a. He contends that his service-connected left knee disability is more severe than his current 10 percent rating. Specifically, in his September 2014 substantive appeal, he reported that his left knee was unstable and buckled frequently. Contemporaneous VA outpatient treatment records note the Veteran’s ongoing reports of left knee pain and swelling. An October 2010 VA examination shows the Veteran maintained range of motion from zero degrees extension, to 115 degrees forward flexion, with consideration of repetitive testing. There was no objective evidence of painful motion. There was no objective evidence of left knee instability. An x-ray of the left knee was normal. The examiner noted that there was no evidence of functional impairment. An August 2014 VA examination shows the Veteran maintained range of motion from zero degrees extension, to 140 degrees forward flexion, with consideration of repetitive testing. There was no objective evidence of painful motion. There was no objective evidence of left knee instability. An x-ray of the left knee was normal. The examiner noted that there was no evidence of functional impairment. The examiner noted that the range of motion testing revealed full range of motion of the left knee. Based on the medical examination reports, as noted above, the Veteran does not meet the criteria for a 10 percent rating. In addition, consideration of functional loss or impairment does not lead to a higher rating. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011); Deluca v. Brown, 8 Vet. App. 202, 204-06 (1995). In the present case, the Veteran was capable of full range of motion of the left knee during initial range of motion testing and repetitive testing, on examination in August 2014. The October 2010 VA examination report shows slightly limited forward flexion, to 115 degrees; however, such limitation does not meet the criteria for a compensable evaluation pursuant to the applicable diagnostic codes. Further, the October 2010 VA examiner noted that there was no additional loss of range of motion upon repetitive testing. The Veteran, however, was nonetheless assigned a 10 percent rating based on pain and functional loss considerations. Accordingly, the evidence of record does not demonstrate that a higher initial rating is warranted for the service-connected left knee due to functional loss. See 38 C.F.R. § 4.71a. The Board has also considered whether any other relevant Diagnostic Code might permit a higher or separate evaluation. Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). However, the preceding codes are not applicable to the Veteran's claim. The Veteran has maintained a nearly full range of motion and did not exhibit limitation of extension. As such, Diagnostic Codes 5256 and 5261 are inapplicable. The VA examiner also concluded that there was no impairment of the semilunar cartilage, no impairment of the tibia and/or fibula and no genu recurvatum. Therefore, Diagnostic Codes 5258, 5259, 5262 and 5263 are inapplicable, too. The Board recognizes that the Veteran reported symptoms of the left knee instability and does not doubt the credibility or accuracy of his statements about frequently experiencing observable feelings that his left knee was unstable and buckled. However, this does not necessarily indicate that a separate evaluation is warranted under Diagnostic Code 5257 for lateral instability. In this case, objective medical testing demonstrated that the Veteran's knee was stable and that he did not experience either recurrent subluxation or lateral instability. Therefore, a separate rating under Diagnostic Code 5257 is not warranted. In so finding, the Board notes that the Veteran is competent (that is, qualified) to report his observable symptoms; however, his lay statements are outweighed by medical evidence that evaluates the true extent of his left knee impairment based on objective data coupled with the lay reports of symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In this regard, VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's knee disability and to provide the information VA needs to evaluate the disability according to the VA Rating Schedule. For these reasons, greater evidentiary weight is placed on the VA examination findings with respect to the type and degree of impairment. Here, the evidence of record does not reveal a change in symptom severity that warrants a higher evaluation. In addition, the Veteran failed to appear for multiple VA examinations that were scheduled to assess a possible change in his symptoms since his prior examination. In this regard, the record shows that the Veteran failed to appear for examinations scheduled for October 2019, January 2020, and October 2020. Moreover, the RO tried to contact the Veteran numerous times in September and October 2020, by letter and telephone; however, the Veteran failed to respond, answer calls, or return calls. Further, in an October 6, 2020, Report of General Information, the RO documents that the Veteran answered the telephone and hung up after the RO identified the reason for the call. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing that evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991). [CONTINUED ON NEXT PAGE] For these reasons, the preponderance of the evidence is against assigning an increased initial rating in excess of 10 percent for a left knee disability. Because the preponderance of the evidence is against the claim, the “benefit of the doubt provisions” are inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 56. Accordingly, the claim must be denied. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Schinnerer, 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.