Citation Nr: 21015875 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-30 457 DATE: March 18, 2021 ORDER A rating greater than 10 percent for right knee limitation of extension (previously rated as right knee contusion, patellar tendonitis, and patellofemoral pain syndrome) is denied. REMANDED Service connection for a lower back disorder is remanded. FINDING OF FACT Throughout the period on appeal, the right knee disability manifested by subjective complaints of pain unaccompanied by chronic weakness, fatigability, or incoordination; objective testing did not demonstrate limitation of extension to 15 degrees. CONCLUSION OF LAW The criteria for a rating greater than 10 percent for right knee limitation of extension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, DC 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) in the United States Army from April 2008 to August 2008, and active duty with the United States Army from July 2009 to July 2010, including foreign service in Africa. For his meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal, Overseas Service Ribbon, and Armed Forces Reserve Medal with M Device. The Veteran testified during an April 2019 videoconference hearing. A transcript of this proceeding has been associated with the record. These matters were then remanded by the Board in October 2019 for additional development, which has since been completed for the issue decided herein (specifically, a review examination regarding the current severity of the Veteran’s knee disability has been completed). Briefly, the Veteran submitted new claims in November 2020 and March 2021 which are awaiting adjudication by the Regional Office (RO). As such, these matters are not for the Board’s consideration at this time. Increased Rating The Veteran is currently pursuing a rating greater than 10 percent for his right knee disability. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. 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 service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Historically, the Veteran’s disability was classified as right knee contusion, patellar tendonitis, and patellofemoral pain syndrome under DC 5099-5019. However, his disability was reclassified as limitation of extension of the right knee under DC 5261 in a February 2021 rating decision. The Board finds this alteration of the applicable DC to be appropriate, as DC 5019 mandates that the Veteran’s disability be rated as limitation of motion of the affected parts, as arthritis. Thus, the Veteran has been evaluated for his limitation of motion throughout the entire period on appeal, regardless of the DC applied. Herein, the Board will continue to evaluate the Veteran against DC 5261 for limitation of extension. Such a finding bears no negative impact on the Veteran. The February 2021 rating decision also awarded service connection for right knee limitation of flexion under DC 5260. The Veteran has not disagreed with any aspect of this award, to include the effective date or initial rating as assigned. Thus, the Board will not consider DC 5260 with respect to this appeal. Should the Veteran so desire, he may appeal this award within one year of the rating decision by filing a Notice of Disagreement (NOD) in accordance with VA regulations. Finally, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. Typically, if a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. However, such an analysis is not warranted in this case. Importantly, the criteria of DC 5261 (under which the Veteran is currently rated) were not among the amended regulations. For those DCs which were revised, the Veteran does not demonstrate the relevant disorders during the period on appeal. As such, neither the old nor new regulations for the remaining DCs are relevant to this appeal. Rather, this appeal may be granted upon evidence of the following: • Extension of the knee limited to 15 degrees (20 percent). The Schedule provides that the normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. As stated above, other diagnostic codes pertaining to the knee include DC 5256 (ankylosis), DC 5257 (subluxation or lateral/patellar instability), DC 5258 (dislocation of the semilunar cartilage), DC 5259 (removal of the semilunar cartilage), DC 5262 (impairment of tibia and fibula), and DC 5263 (genu recurvatum). These disorders are not shown in the record for the period on appeal (as set forth in both the old and new regulations), such that application of these DCs is not warranted. See VA examinations dated November 2012, January 2015, November 2019, and December 2020. Upon review of the record, the appeal must be denied. The Veteran underwent multiple VA examinations during the period on appeal. In November 2012, there was no limitation of extension upon initial range of motion testing or objective evidence of painful motion. Limitation of extension did not change upon repetitive use. Rather, the Veteran’s primary symptoms were less movement than normal and pain on movement, absent accompanying weakness, incoordination, or fatigability. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Veteran next underwent VA examination in January 2015. Initial range of motion testing showed extension between 135 and zero degrees. Pain was not observed with extension or upon weight-bearing. The Veteran was able to perform repetitive use testing without additional loss of motion or function. Although pain was reported to contribute to functional loss, the examiner could not estimate said loss in terms of range of motion. Additional symptoms of weakness, incoordination, and fatigability were denied. The occasional use of a brace to assist with ambulation was reported at that time. In November 2019, initial range of motion testing showed extension between 90 and zero degrees. Such range of motion did not in itself contribute to functional loss; however, pain was noted on extension and in nonweight-bearing, which caused functional loss. See Correia v. McDonald, 28 Vet. App. 158 (2016). There was no evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing without additional loss of motion or function. Additional symptoms of weakness, incoordination, and fatigability were denied. However, the Veteran reported the regular use of a brace to assist with ambulation. Most recently, the Veteran underwent VA examination in December 2020. At that time, initial range of motion testing yielded extension between 50 and zero degrees. Such limitation did not contribute to functional loss. Pain was observed upon extension, with weight-bearing, and with nonweight-bearing. The Veteran was able to perform repetitive use testing without additional loss of motion or function. Additional symptoms of weakness, incoordination, and fatigability were denied. Although pain during flare-ups was said to contribute to functional loss, the examiner denied that this symptom would result in further loss of motion. Nonetheless, the Veteran reported the constant use of a brace to assist with ambulation. VA treatment records spanning the period on appeal do not contradict the above findings to any notable degree. Rather, this evidence typically notes the Veteran’s history of chronic right knee pain. Significantly, these records do not contain additional range of motion testing for consideration. During the April 2019 hearing, the Veteran also offered competent lay testimony regarding his right knee disability. At that time, he described chronic right knee pain which limited his capacity for such movement as running, playing basketball, or using stairs. He utilized a brace to assist with perceived weakness or instability. In contemplating the above, a rating greater than 10 percent is not warranted for the Veteran’s right knee disability at any time. Rather, the competent medical evidence establishes that he showed, at worst, limitation of extension between 50 and zero degrees. Such extension is far greater than that enunciated in the criteria for a 20 percent rating, and was not altered with repetitive use or the presence of pain. Although the Veteran also reported intermittent pain on both weight-bearing and nonweight-bearing, his examiners did not conclude that this symptom was productive of additional loss of motion or function. See Correia, 28 Vet. App. 158 (2016). Further, additional symptoms such as weakness, incoordination, and fatigability were routinely denied during examination. DeLuca, 8 Vet. App. at 206-07. As such, the Veteran showed only mild functional impairment due to his disability, such as difficulty bending, lifting, or exercising. Such a disability picture is contemplated in the rating as assigned, and there is no competent evidence to support the assignment of a higher rating in this case. Rather, the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the appeal seeking a rating greater than 10 percent for a right knee disability is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). In offering this finding, the Board has considered the Veteran’s testimony regarding the nature and severity of his symptoms. However, he is not competent to identify a specific level of disability according to the applicable DCs. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno, 6 Vet. App. at 469. In contrast, the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran’s disability and had sufficient facts and data on which to base their conclusions. Thus, greater probative value is afforded to the medical evidence, which is based upon expert assessments including objective testing and directly supports the determination offered herein. Further, the Board notes that the Veteran’s hearing testimony included reports of perceived weakness or instability, which might typically yield a positive decision in this case. However, the Veteran’s reports are wholly uncorroborated by the record, to include the assessments of multiple VA examiners who directly contemplated these exact symptoms. In this case, the Board finds the medical evidence, offered by trained experts and as based upon both objective testing and consideration of the Veteran’s subjective reporting, to be more probative. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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 Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeal. First, the record clearly enunciates the Veteran’s periods of ACDUTRA and active duty as identified in the introduction to this decision. However, the record indicates that he may have completed additional National Guard service through July 2020. See July 2020 Request for Information. As an award of service connection is impacted by the characterization of a veteran’s service, clarification is required on this point. Further, the Board acknowledges that relevant VA nexus opinions were obtained in November 2012, January 2015, November 2019, December 2020, and January 2021. Taken in combination, these opinions do not fully address the considerations relevant to this appeal, to include whether the Veteran’s altered gait (due to his service-connected right knee disability) is etiologically related to his back disorder, or whether service connection is warranted based upon the distinct nature of each period of service. Thus, a clarifying addendum opinion is necessary. The matter is REMANDED for the following actions: 1. Conduct appropriate development and provide a memorandum identifying the exact nature and dates of the Veteran’s military service, including with the Army National Guard and related periods of ACDUTRA/INACDUTRA. It is insufficient to associate the Veteran’s service records with the claims file; a specific memorandum is required on this point. 2. Obtain an opinion addressing the questions below.  If the reviewing examiner determines that the opinions requested may not be offered without first examining the Veteran, then consider whether a telehealth interview may be appropriate.  Schedule an in-person examination only if deemed necessary to answer the questions below.       The claims file and a copy of this remand must be made available for review, and the examination reports must reflect that review of the claims file occurred.  In particular, the examiner must address the following:  (a) Identify all back disorders demonstrated by the Veteran during the pendency of this appeal. If a diagnosis of arthritis is rendered, the examiner must identify the onset of this condition. The examiner must also clearly identify which of the Veteran’s current conditions are congenital. (b) For each non-congenital disorder, indicate whether it is at least as likely as not that the condition: (i) Began in, was caused by, or is otherwise related to a period of active duty or ACDUTRA; (ii) Was caused or aggravated by an injury during a period of INACDUTRA; (iii) If the examiner determines that any of the relevant back disorders arose between his periods of active service or ACDUTRA, the examiner must also address whether the condition was at least as likely as not (50 percent probability or more) aggravated by a subsequent period of service. (c) Further indicate whether it is at least as likely as not that each non-congenital disorder was caused or aggravated by the Veteran’s service-connected right knee disorders or the treatment thereof, to include due to an altered gait. Here, the examiner must address the December 2020 and January 2021 VA opinions which speak to possible aggravation of the Veteran’s back disorder by his right knee disabilities, but utilize an incorrect definition of aggravation. In this respect, the examiner is advised that a permanent worsening of the disorder is not required; rather, any incremental increase in a nonservice-connected condition attributable to a service-connected disability, whether permanent or not, constitutes aggravation. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). In formulating the opinions, the examiners are advised that the term “at least as likely as not” does not mean “within the realm of possibility.”  Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.  A complete rationale must be provided for all opinions or conclusions expressed.  It should be noted that the Veteran is competent to attest to observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.   Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.