Citation Nr: 21020858 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-43 102 DATE: April 8, 2021 ORDER Entitlement to a compensable evaluation prior to March 18, 2020, and a 10 percent evaluation thereafter, for left knee osteoarthritis is denied. Effective March18, 2020, a separate 10 percent evaluation for limitation of extension the left knee is granted. Entitlement to an evaluation greater than 10 percent since March 18, 2020, for left knee instability is denied. Entitlement to a compensable evaluation for bilateral hearing loss is denied. REMANDED Entitlement to a compensable evaluation for traumatic brain injury (TBI) is remanded. Entitlement to service connection for migraine headaches, to include as secondary to the service-connected TBI, is remanded. FINDINGS OF FACT 1. Prior to March 18, 2020, the Veteran’s left knee osteoarthritis was manifested by swelling and weakness. However, there was no pain on motion or instability, and the ranges of motion were normal even when considering repetitive use over time. 2. Since March 18, 2020, the Veteran’s left knee osteoarthritis has been manifested by extension of 10 degrees but less than 15 degrees and flexion greater than 60 degrees with pain on motion. 3. Since March 18, 2020, the Veteran’s left knee osteoarthritis has been manifested by slight recurrent subluxation or lateral instability. 4. The Veteran’s bilateral hearing loss has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation prior to March 18, 2020, and a 10 percent evaluation thereafter, for left knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5260. 2. Effective March 18, 2020, a separate 10 percent evaluation, but no higher, is granted for limitation of extension for the left knee. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 3. The criteria for an evaluation greater than 10 percent since March 18, 2020, for left knee instability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 4. The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from July 1965 to November 1972. These matters are on appeal from a March 2017 rating decision. In December 2019, the Board of Veterans’ Appeals (Board) remanded these matters for further development. The Board also remanded the issue of entitlement to a compensable evaluation for prostate cancer. In December 2020, the Veteran was granted a 100 percent evaluation for his prostate cancer for the entire appeal period. This is a full grant of the benefits sought and this issue is no longer before the Board. Increased Ratings Disability ratings are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. Separate Diagnostic Codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous....” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. 1. Entitlement to a compensable evaluation prior to March 18, 2020, and a 10 percent evaluation thereafter, for left knee osteoarthritis. 2. Entitlement to an evaluation greater than 10 percent since March 18, 2020, for left knee instability. The Veteran is in receipt of a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5260 for osteoarthritis of the left knee, effective March 18, 2020. He is also in receipt of a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for his left knee instability, effective March 18, 2020. Since service connection was established, the Veteran’s limitation of flexion of the left knee has been rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5260. In this regard, if a veteran has an unlisted disability, as in this case, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20. Under Diagnostic Code 5010, post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Here, the appropriate limitation of motion codes for the knee are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, a noncompensable (0 percent) rating is assigned for limitation of flexion of the leg to 60 degrees. A 10 percent rating is warranted for limitation of flexion of the leg to 45 degrees. A 20 percent rating is warranted for limitation of flexion of the leg to 30 degrees. A 30 percent rating is warranted for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides the criteria for limitation of extension of the leg. Under Diagnostic Code 5261, a noncompensable (0 percent) rating is assigned for limitation of extension of the leg to 0 degrees. A 10 percent rating is assigned for limitation of extension of the leg to 10 degrees. A 20 percent rating is assigned for limitation of extension of the leg to 15 degrees. A 30 percent rating is warranted for limitation of extension of the leg to 20 degrees. 38 C.F.R. § 4.71a. For comparison, normal range of motion in the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. Slight recurrent subluxation or lateral instability warrants a 10 percent rating. Moderate recurrent subluxation or lateral instability warrants a 20 percent rating. Severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Effective February 7, 2021, Diagnostic Code 5257 was revised to the following: sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation is rated as 10 percent disabling; one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation is rated as 20 percent disabling. Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation is rated as 30 percent disabling. 38 C.F.R. § 4.71a. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker is rated as 10 percent disabling. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker is rated as 20 percent disabling. Patellar instability consisting of a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker is rated as 30 percent disabling. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38 C.F.R. § 4.71a, Diagnostic Code 5257. Descriptive words such as “slight,” “moderate,” and “severe,” as used in the various diagnostic codes, are not defined in VA’s Rating Schedule. Thus, rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. In other words, the use of these descriptive terms is not altogether dispositive of the rating that should be assigned, but it is nonetheless probative evidence to be considered in making this important determination. 38 C.F.R. §§ 4.2, 4.6. VA’s General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). More recently, the General Counsel held that a separate rating could also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The U.S. Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 do not apply to ratings under Diagnostic Code 5257. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). In February 2017, the Veteran was afforded a VA knee and lower conditions examination. The VA examiner diagnosed left knee strain. The Veteran endorsed weakness and swelling of the knee. Bilateral knee ranges of motion showed flexion to 140 degrees and extension to zero degrees. There was no objective evidence of localized tenderness or pain on palpation of the joint and associated tissue or weight-bearing. The Veteran was able to perform repetitive-use testing without additional loss of function or range of motion after three repetitions. The examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The Veteran was unable to estimate ranges of motion after repetitive use over time. Muscle strength and stability testing was normal. There were no meniscal conditions noted. There was no pain in non-weight bearing or passive range of motion. Passive range of motion was the same as active range of motion. The Veteran was asymptomatic at the examination. Finally, the Veteran underwent his most recent VA examination in March 2020. The Veteran endorsed left knee pain with prolonged sitting, standing, or walking. The VA examiner diagnosed osteoarthritis of the bilateral knees. Right knee ranges of motion were normal. The Veteran had left knee flexion to 130 degrees and extension to zero degrees. Pain was noted and caused functional loss. The Veteran was able to perform repetitive use testing without any additional functional loss or range of motion. The examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The VA examiner indicated that pain and fatigue would limit the Veteran’s functional ability with repeated use over time. She estimated that the Veteran’s left knee flexion would be limited to 120 degrees and his extension would be limited to 10 degrees with repeated use over time. Muscle strength testing was normal. Stability testing indicated left knee instability of zero to 5 millimeters. There was no recurrent patellar dislocation, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The Veteran had never had a meniscus condition. He reported chronic persistent swelling of the left knee joint. The Veteran did not require assistive devices. The VA examiner indicated that the Veteran’s left knee disability caused difficulty with prolonged standing, walking, sitting, and climbing stairs. There was no pain on passive range of motion or non-weight bearing. Based upon the forgoing, the Board finds that the Veteran’s left knee osteoarthritis does not warrant a compensable evaluation prior to March 18, 2020. The Veteran’s left knee osteoarthritis was manifested by swelling and weakness. However, there was no pain on motion, and stability and ranges of motion of the left knee were normal, when considering repetitive use over time. The Veteran has not submitted any evidence to contradict the February 2017 VA examination findings. The Veteran’s VA treatment records for the period are silent regarding treatment for his left knee disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5260. In order to warrant a higher 20 percent rating under Diagnostic Code 5003 since March 18, 2020, the evidence must establish that the Veteran’s left knee is manifested by occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. Unfortunately, there is no medical or lay evidence of record to suggest the Veteran’s left knee osteoarthritis is manifested by occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Veteran is also not entitled to a higher evaluation for limitation of flexion of the left knee. The Veteran’s left knee flexion has exceeded 60 degrees throughout the appeal period, even with consideration of his functional impairment, to warrant a higher disability rating under the appropriate limitation of motion code for the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5260. However, since March 18, 2020, the Board finds that the Veteran is entitled to a 10 percent disability under Diagnostic Code 5261. The March 2020 VA examiner found that that the extension of the left knee would be limited to 10 degrees after repeated use over time. A separate 10 percent disability rating is granted for the limitation of extension of the left knee osteoarthritis, effective March 18, 2020. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 20 percent rating is not warranted, effective March 18, 2020, because the Veteran’s extension of the left knee was not limited to 15 degrees at the March 2020 VA examination. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board has considered the Veteran’s complaints of pain in the knee. However, the lay and medical evidence does not show that this symptom results in additional functional limitation to the extent that the disability would approximate the criteria for a higher disability rating under Diagnostic Codes 5260 or 5261. 38 C.F.R. § 4.71a. The Veteran could achieve the ranges of motion of the knee on examinations despite the presence of pain. See Mitchell, 25 Vet. App. at 32. However, his ranges of motion of the knee during a flare-up are not sufficient to warrant higher disability ratings under Diagnostic Codes 5260 or 5261. 38 C.F.R. § 4.71a. Additionally, the Veteran is not entitled to a higher disability rating under Diagnostic Code 5257 under either version of the Diagnostic Code, as the evidence does not show moderate recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a. The March 2020 examination findings showed slight instability. The Veteran did not use a knee brace. His lay statements lack sufficient detail to demonstrate moderate recurrent subluxation or instability at any point during the appeal period. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The treatment records and the Veteran’s lay statements do not provide contrary evidence. Based on the evidence, the Board finds that the Veteran has, at worst, been manifested by slight recurrent lateral instability of the knee. The examiners found that the Veteran did not have a history of lateral instability or subluxation. Thus, the Veteran is not entitled to a disability rating in excess of 10 percent under Diagnostic Code 5257 for moderate recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a. The remainder of the Diagnostic Codes pertaining to the knee and leg also do not justify a higher disability rating for the service-connected left knee disabilities. 38 C.F.R. § 4.71a. Diagnostic Code 5256 is not applicable because there is no ankylosis of the Veteran’s knee. He has retained significant motion in his left knee. 38 C.F.R. § 4.71a. Diagnostic Code 5258 is applicable where there is dislocated cartilage of the knee, and Diagnostic Code 5259 is applicable where there is removal of cartilage of the knee. The Veteran has not undergone knee surgery; hence, there has not been removal of the semilunar cartilage. Examinations and treatment have shown no knee deformity or otherwise indicated that there is dislocation of the semilunar cartilage. 38 C.F.R. § 4.71a. Diagnostic Code 5262 describes malunion or nonunion of the knee. These codes have not been raised by the medical evidence, as there were no structural abnormalities of the Veteran’s knee or dislocated cartilage documented. Diagnostic Code 5263 refers to acquired, traumatic genu recurvatum, which has also not been demonstrated by the evidence of record. Thus, these remaining Diagnostic Codes do not justify a higher disability rating for the service-connected knee disabilities. 38 C.F.R. § 4.71a. In sum, a separation 10 percent evaluation for left knee flexion is granted effective March 18, 2020. However, the preponderance of the evidence is against the assignment of a compensable evaluation prior to March 18, 2020, and a 10 percent evaluation thereafter, for left knee osteoarthritis at any time during the appeal period. The preponderance of the evidence is also against the assignment of an evaluation greater than 10 percent since March 18, 2020, for left knee instability at any time during the appeal period. 38 U.S.C. § 5107. 3. Entitlement to a compensable evaluation for bilateral hearing loss. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). A February 2017 VA examination report reveals that the Veteran reported difficulties during conversations and hearing the television and radio. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:   HERTZ   1000 2000 3000 4000 Avg CNC RIGHT 15 40 60 55 42.5 94% LEFT 15 45 55 60 43.75 96% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and I Level in the left ear. Applying the resulting bilateral numeric designations to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is not shown. October 2020 VA treatment records document that the Veteran does not have hearing loss. There is no indication that the Veteran’s bilateral hearing loss has worsened since his last VA examination. Based on the evidence above, a compensable evaluation for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s statements that he cannot hear from his right ear and has diminished hearing in his left ear. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable evaluation for bilateral hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a compensable evaluation for TBI is remanded. 2. Entitlement to service connection for migraine headaches, to include as secondary to the service-connected TBI, is remanded. In December 2019, the Board remanded the issues of entitlement to a compensable evaluation for TBI and entitlement to service connection for migraine headaches to obtain adequate VA opinions and to afford the Veteran a contemporaneous VA examination. In October 2020, the Veteran underwent a VA examination. The VA examiner opined that the Veteran’s migraine headaches were less likely than not incurred in or caused by his in-service head injury. She also opined that the Veteran’s headaches were less likely than not proximately due to or aggravated beyond their natural progression by the service-connected TBI. The examiner explained that there was a long interval gap between the Veteran’s in-service head injury and his current onset of migraines. She stated that the Veteran’s November 1979 physical examination was normal and neuropsychological testing from December 2009 indicated that his cognitive deficiency was from his stroke and not his TBI during service. The Board finds these opinions to be inadequate because they are not supported by sufficient rationale. There is no rationale for why the Veteran’s current cognitive deficits are unrelated to his service-connected TBI. The VA examiner has only stated that the Veteran’s cognitive deficits in 2009 were unrelated to his TBI. Regarding the migraine opinion, there is no rationale supporting the conclusion of why the Veteran’s migraines are not aggravated or caused by his service-connected TBI. Based upon the forgoing, there has not been substantial compliance with the Board’s prior remand directives. Therefore, a remand is required to obtain adequate medical opinions. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s cognitive deficits are at least as likely as not related to his service-connected TBI. If the VA examiner cannot provide an opinion without examining the Veteran, the Veteran should be scheduled for an examination. A rationale must be provided for any opinion. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s migraine headaches are at least as likely as not proximately due to or aggravated by the service-connected TBI. A rationale must be provided for any opinion. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran’s satisfaction, send him a Supplemental Statement of the Case, and provide an   opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.R. Watkins, 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.