Citation Nr: 21016098 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 15-12 509 DATE: March 19, 2021 ORDER Entitlement to service connection for a cervical spine disability is granted. Entitlement to a separate disability rating of 10 percent, but no more, for left knee instability is granted on and after November 1, 2012, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 10 percent for a left knee medial meniscus tear is denied. Entitlement to an initial compensable rating for left foot second toe hammertoe and surgery residuals is denied. FINDINGS OF FACT 1. The probative evidence of record is at least in equipoise as to whether the Veteran’s cervical spine disability is etiologically related to active duty service. 2. For the period on appeal, the Veteran’s left knee medial meniscus tear was manifested as painful motion and slight lateral instability, but not ankylosis, limitation of flexion to 45 degrees, limitation of extension to 10 degrees, dislocated or removed semilunar cartilage, or impairment of the tibia or fibula. 3. The Veteran’s left foot second toe hammertoe and surgery residuals affects two toes of the left foot. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 2. With resolution of reasonable doubt in the Veteran’s favor, on and after November 1, 2012, the criteria for a separate rating of 10 percent, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2020). 3. The criteria for a disability rating in excess of 10 percent for a left knee medial meniscus tear have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2020). 4. The criteria for a compensable disability rating for left foot second toe hammertoe and surgery residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5282 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from June 1986 to October 2012, including service in the Iraq War. The Veteran’s decorations included the Bronze Star Medal. These matters are on appeal from January 2013 and November 2013 rating decisions. In an August 2018 decision, the Board remanded the issues being decided below to attempt to obtain additional records and to afford the Veteran additional VA examinations and an additional VA medical opinion.  The Agency of Original Jurisdiction (AOJ) has done so.  The July 2019 VA examinations for knee and lower leg, foot, and cervical spine conditions are adequate because they were based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, and because they described his left knee, left foot, and neck in detail sufficient to allow the Board to make fully informed determinations.  There was therefore substantial compliance with the remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).   1. Cervical Spine Disability The Veteran has a current diagnosis of a cervical spine disability, which he contends had its onset during active duty service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran was afforded a VA examination in June 2012, four months prior to his separation from active duty service. The clinician did not diagnose a cervical spine disability and therefore did not provide an opinion with regard to a nexus to service. The Veteran was afforded an additional VA examination in July 2019. The Veteran reported that his symptoms had their onset in 2008 when his vehicle was struck by another vehicle as part of a training exercise, causing a whiplash injury that he did not report because he did not want to jeopardize an upcoming deployment. The clinician diagnosed cervical strain and opined that it was at least as likely as not incurred in or caused by active duty service because the clinician’s examination findings were consistent with the type of injury the Veteran described and the Veteran sought treatment for neck pain less than a year after his separation from active duty service. The July 2019 VA medical opinion is favorable to the Veteran’s claim with regard to direct service connection. The opinion includes a convincing rationale and the record contains no medical opinion to the contrary with regard to this theory of service connection. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran’s favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s cervical spine disability is etiologically related to his active duty service. Accordingly, the Board finds that granting service connection for a cervical spine disability is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2020). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. “Staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Given the nature of the present claims for higher initial evaluations, the Board has considered all evidence of severity from the effective dates for the awards of service connection.  Fenderson v. West, 12 Vet. App. 119 (1999).   Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 2. Left Knee Instability 3. Left Knee Medical Meniscus Tear The Veteran contends that his left knee medial meniscus tear warrants a higher rating than that currently assigned. The left knee is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of leg flexion, with a 10 percent rating on and after November 1, 2012. The full period of service connection is on appeal. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. In this case, at least the minimum compensable rating has been in effect during the entire appeal period. Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Limitation of flexion of the leg is evaluated as follows: flexion limited to 15 degrees (30 percent); flexion limited to 30 degrees (20 percent); flexion limited to 45 degrees (10 percent); and flexion limited to 60 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of the leg is evaluated as follows: extension limited to 45 degrees (50 percent); extension limited to 30 degrees (40 percent); extension limited to 20 degrees (30 percent); extension limited to 15 degrees (20 percent); extension limited to 10 degrees (10 percent); and extension limited to 5 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2020). For VA purposes, a normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. There are additional Diagnostic Codes that apply to knee disorders. 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2020) pertains to ankylosis of the knee. Recurrent subluxation or lateral instability of the knee is evaluated as follows: severe (30 percent); moderate (20 percent); and slight (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5257. Meniscal conditions are evaluated as follows: dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint (20 percent); and symptomatic removal of semilunar cartilage (10 percent). 38 C.F.R. § 4.71a, Diagnostic Codes 5258 and 5259 (2020). Impairment of the tibia and fibula is evaluated as follows: nonunion with loose motion, requiring a brace (40 percent); malunion with marked knee or ankle disability (30 percent); malunion with moderate knee or ankle disability (20 percent); and malunion with slight knee or ankle disability (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2020). The Veteran was afforded a VA examination in October 2013. The Board, however in its August 2018 decision, found this examination report inadequate for rating purposes because the required testing had not been performed. As such this examination report is of no probative value and will play no role in the Board’s current analysis. In a December 2013 statement, the Veteran reported “constant pain, popping, and instability” in his left knee daily. In a March 2015 statement, the Veteran reported the same symptoms and added that his knee “gives out at least once a month,” that stairs are very painful for his knees, and that he has fallen down stairs “a few times in the last 3 years” due to his left knee giving out. The Veteran has also submitted a March 2015 statement by his spouse, S. O-T., who reported that the Veteran’s left knee “literally gives out (with no warning) on him at least once a month,” that he frequently must rely on the handrails when walking down stairs, and that there “have been a few instances when his left knee has given out sending him tumbling down the stairs.” The Veteran was afforded an additional VA examination in July 2019. The clinician diagnosed a left knee meniscal tear. The Veteran reported pain, popping, and “giving out randomly at least once a month,” mostly when using stairs. He did not report flare ups. He reported functional impairment in the form of inability to walk long distances, kneel for more than a few minutes, or run, needing to use handrails on stairs, and constant pain and popping that was exacerbated by using stairs. On examination, range of motion in the left knee was reported as 0 degrees of extension to 100 degrees of flexion. Pain was noted on flexion but did not cause functional loss. There was objective evidence of moderate localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of pain with weight bearing. There was objective evidence of crepitus. There was no additional loss of range on repetition. The clinician found that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and that, under those circumstances, pain and lack of endurance would further limit the range of motion to 0 degrees of extension to 90 degrees of flexion. There were no additional factors contributing to disability. Muscle strength was normal and there was no muscle atrophy. There was no ankylosis and the clinician found no history of recurrent subluxation, effusion, or instability. Anterior, posterior, medial, and lateral stability testing was normal. There was no tibial or fibular impairment. There was a history of a meniscal tear, with frequent episodes of joint pain, but no dislocation or surgery. The Veteran did not report using any assistive devices. The clinician found that the Veteran’s knee disability would have an impact on his ability to work in the form of difficulty squatting. The clinician also noted that there was no evidence of pain on passive range of motion testing or on non-weight bearing. During the pendency of the appeal, 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. 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). 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. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. As of February 7, 2021, under the amended criteria, a compensable rating for knee instability requires that instability be a diagnosed condition. 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, Diagnostic Code 5257). Because the Veteran’s left knee instability is not a diagnosed condition, these criteria are less favorable to the Veteran and the old criteria will be used throughout the period on appeal. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his left knee instability warrants a separate 10 percent rating throughout the period on appeal. Stability testing during the period on appeal has found no instability but the Veteran has consistently reported his knee giving way. Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). Because the Veteran has competently and credibly reported left knee instability, the Board finds that a separate 10 percent rating is warranted for slight lateral instability of the left knee. The Veteran’s knee instability is not more accurately described as moderate. The medical records do not describe instability of the knee joint and the July 2019 VA examiner found that the knee joint is normal on all stability tests. The Board finds that knee instability that causes functional impairment but is undetectable on all forms of examination is best characterized as slight. Additionally, the July 2019 VA examiner found that there was no history of lateral instability or recurrent subluxation. The preponderance of the evidence described above also shows that the Veteran’s left knee medial meniscus tear does not warrant a rating in excess of 10 percent under Diagnostic Code 5260. The Veteran is already being compensated by the 10 percent rating assigned under Diagnostic Code 5260 for painful motion of the left knee joint. A 10 percent rating under Diagnostic Code 5260 requires limitation to 45 degrees. No examiner or treatment provider has found that the Veteran’s left leg flexion has been limited to less than 90 degrees during this period. The preponderance of the evidence described above also shows that the Veteran’s left knee medial meniscus tear does not warrant a separate rating under Diagnostic Code 5261. A 10 percent rating under Diagnostic Code 5261 requires limitation to 10 degrees. All extension findings during the period on appeal were either to 0 degrees or some degree of hyperextension. The preponderance of the evidence also shows that the Veteran’s left knee disability was not manifested by ankylosis or impairment of the tibia or fibula during this period. The Board acknowledges the Veteran’s left knee meniscal tear and frequent episodes of joint pain, but there is nothing in the record to indicate that the meniscus is dislocated or that there is locking or effusion. A 20 percent rating under Diagnostic Code 5258 requires dislocation and frequent episodes of locking, pain, and effusion. A separate rating under Diagnostic Code 5258 is therefore not warranted. The record also does not show that the Veteran’s left meniscus has been partially or completely removed. A separate rating under Diagnostic Code 5259 is therefore not warranted. The Board has considered the Veteran’s lay statements and those of his spouse. The Veteran and his spouse are competent to report their own observations with regard to the symptoms of the Veteran’s left knee disability and their descriptions are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has accepted those statements as the basis for granting a separate 10 percent rating for instability of the left knee. However, nothing in the Veteran’s or his spouse’s lay statements provides a basis for assigning higher ratings than those assigned herein under any Diagnostic Code pertaining to musculoskeletal disabilities of the knee. In addition, the Board considered whether higher ratings are warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is nothing to indicate that the Veteran’s pain or any other DeLuca factor causes functional impairment equivalent to the criteria for ratings in excess of those already in effect or assigned herein. Because the Board considered the applicable ratings under every Diagnostic Code pertaining to musculoskeletal disabilities of the knee, the Board finds that there are no other potentially applicable Diagnostic Codes by which higher ratings can be assigned. 4. Left Foot Second Toe Hammertoe and Surgery Residuals The Veteran contends that his hammertoe of the right second toe warrants a higher rating than that currently assigned. It is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5282, for hammer toe, with a noncompensable rating on and after November 1, 2012. The full period of service connection is on appeal. Under 38 C.F.R. § 4.71a, Diagnostic Code 5282, hammer toe affecting all toes of a single foot without claw foot warrants a 10 percent rating and hammer toe affecting single toes warrants a noncompensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5282. The Veteran was afforded a VA examination in June 2012. The Veteran reported pain when putting pressure on the foot. On examination, there was a hammer toe on the second toe of the left foot. The clinician found that the Veteran’s residuals of surgery were equivalent to a moderate foot injury. The Veteran did not report using any assistive devices. The clinician found that the Veteran’s left hammer toe would have no impact on his ability to work. In his January 2014 Notice of Disagreement (NOD), the Veteran reported that his left foot symptoms included constant pain and a painful scar. In a statement submitted with the NOD, the Veteran added that he had pain in his foot “anytime it makes contact with the ground” and that two additional toes on the left foot had “slight hammertoes.” In a March 2015 statement, the Veteran reported similar symptoms but added that the “rest of the toes on the left foot also have slight hammertoes.” The Veteran has also submitted a March 2015 statement by his spouse, who also reported that the “rest of the toes on his left foot appear to have slight hammertoes” and that the Veteran had “constant pain in his left foot.” The Veteran was afforded an additional VA examination in July 2019. The Veteran continued to report pain in the left foot, which he characterized as severe. He reported functional impairment in the form of inability to walk for long distances or kneel. On examination, there were hammer toes on the second and third toes of the left foot. The clinician noted surgery to repair a hammer toe in 2010 and that there was residual pain in the toe and a residual scar. There was functional loss due to pain on movement. There was pain with walking and any use of the second toe. The clinician found that the Veteran’s left hammer toes would have an impact on his ability to work by causing mild to moderate limitations in standing and walking due to pain. The clinician repeated that not all of the toes of the left foot had hammertoe symptoms, only the second and third toes. Based on the evidence described above, the Board finds that the Veteran’s left foot second toe hammertoe does not warrant a compensable rating. As stated above, Diagnostic Code 5282 does not provide for a compensable rating for a hammer toe affecting less than all toes. 38 C.F.R. § 4.71, Diagnostic Code 5282. The VA examinations have found that no more than two toes are affected. The Board acknowledges the Veteran’s report of painful motion, but the provisions of 38 C.F.R. § 4.59 do not apply when the applicable Diagnostic Code does not provide a compensable rating. Sowers v. McDonald, 27 Vet. App. 472 (2016). Therefore, a compensable rating under Diagnostic Code 5282 is not warranted. The Board has also considered whether a compensable rating might be available under another Diagnostic Code. The Board acknowledges the Veteran’s reports that his surgical scar is painful, but he has been granted a separate disability rating for the scar and that rating is not before the Board. When a condition is specifically listed in the rating schedule (flatfoot, in this case), it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333 (2015). Diagnostic Code 5284 does not apply to the eight foot conditions specifically listed in the rating schedule under Diagnostic Codes 5276-5283. Id. at 337. Diagnostic Code 5284 (other foot injuries), along with other Diagnostic Codes, do not need to be considered because the Veteran’s entire service-connected foot disability (hammer toe and scar only) is specifically listed by the schedule. See Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that “[a]n analogous rating... may be assigned only where the service-connected condition is ‘unlisted.’”). The Board has considered the Veteran’s lay statements and those of his spouse. The Veteran and his spouse are competent to report on matters observed or within their personal knowledge, such as pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, however, the Veteran and his spouse are not competent to provide an opinion as to whether his symptoms warrant any medical diagnosis. The Board must determine on a case-by-case basis whether a particular medical issue is within the competence of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran and his spouse in this case are not shown to possess any pertinent medical training or expertise that would make them competent to diagnose the Veteran with any particular left foot disability. Jandreau, 492 F.3d at 1376-77. Thus, to the extent that the Veteran and his spouse contend that all of the toes on his left foot are hammer toes, those are not competent medical opinions and they cannot be assigned any probative weight. The Board finds that the June 2012 VA examiner’s finding of a single hammer toe and the July 2019 VA examiner’s finding of two hammer toes are of greater probative value than the Veteran’s and his spouse’s lay assertions. To the extent that they report pain, those reports do not provide a basis for a compensable rating under the Diagnostic Code pertaining to hammer toes. (Continued on the next page)   In addition, the Board considered whether higher ratings are warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. §§ 4.40, 4.45. Because Diagnostic Code 5282 does not pertain to limitation of motion, the DeLuca factors are not for consideration. N. Stevens Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.