Citation Nr: 21021179 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-05 622 DATE: April 12, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to a rating in excess of 10 percent for left knee bursitis is denied. FINDINGS OF FACT 1. The competent evidence of record shows that the Veteran does not have current diagnoses of hypertension which could be attributable to his active service. 2. For the entire rating period on appeal, the Veteran’s left knee arthritis was manifested by pain, and at worst, flexion and extension limited to 130 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 2. The criteria for an initial rating in excess of 10 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5003-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1976 to October 30, 1980 and from October 31, 1980 to September 1986. The Veteran’s discharge in September 1986 was issued under dishonorable conditions for VA purposes and is a bar to any rights or benefits based on active duty performed from October 31, 1980 through September 23, 1986. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2018 and February 2021, when it was remanded for further development. 1. Hypertension The Veteran asserts that he experiences hypertension as a result of his active service. Specifically, the Veteran asserts that his claimed hypertension is service-connected to his psychiatric disorder. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2019). The question for the Board is whether the Veteran has a current diagnosis of hypertension which either began during active service or is etiologically related to an in-service disease or injury. The Board finds that there is no competent, credible, and probative evidence that would establish that the Veteran experiences hypertension that is etiologically related to his active service, or to a service-connected disability. In short, the Veteran’s claim fails at prong (1) a current disability, as the Veteran does not have a diagnosis of hypertension. Regarding the first element of service connection (i.e. a current disability), importantly, the Veteran’s medical records do not show a diagnosis of hypertension. The Veteran’s service treatment records do not show any hypertension complaints or treatment. The Veteran’s post-service treatment records show that the Veteran has never complained of hypertension. All treatment records in evidence are completely silent for a diagnosis of hypertension. The Veteran underwent a hypertension examination in February 2021. See Medical Opinion Disability Benefits Questionnaire (DBQ), February 16, 2021. The examiner opined that the Veteran did not have a diagnosis of hypertension, and had never been diagnosed with hypertension. The examiner noted that, while the Veteran did have an elevated blood pressure reading during a hospital admission in July 2014, this elevation was transient. The examiner opined that the Veteran’s blood pressure is normal, and a temporary elevation in blood pressure could be due to overexertion, lack of sleep, or many other factors. As such, the Veteran's claim for entitlement to service connection for hypertension fails. He did not have a diagnosis of hypertension either in or after active service. And, the best evidence of record shows that the Veteran does not have a current diagnosis of hypertension. In the absence of proof of a present disorder (and, if so, of a nexus between that disorder and the active military service), there can be no valid claims for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that “a Veteran seeking disability benefits must establish... the existence of a disability [and] a connection between the Veteran's service and the disability.” Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Board has considered whether the Veteran experienced hypertension at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence of hypertension at any time during the pendency of this appeal. The Veteran also has not identified or submitted any competent evidence, to include a diagnosis of the disorder, or a medical nexus, relating his claimed hypertension to active service. The Board has considered the Veteran’s lay statements in support of his claim. Although laypersons are competent to provide opinions on some medical issues, as to the specific issues in this case, diagnosing hypertension, this issue falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (laypersons not competent to diagnose cancer). As a layperson, the Veteran has not been shown to possess the medical expertise to diagnose hypertension and its etiology. The claims file does not contain any medical records diagnosing the Veteran with hypertension, or linking his self-reported symptoms to his active service. In sum, there is no evidence, medical or otherwise, to support the Veteran’s statements. Thus, as previously stated, the medical evidence of record is against the Veteran’s service connection claim. Accordingly, service connection for hypertension is not warranted because the Veteran has not satisfied the first requirement of service connection, i.e., a current diagnosis of a disability. See 38 C.F.R. § 3.303; see again Gilpin, 155 F.3d at 1353; Brammer, 3 Vet. App. at 225. In reaching the above conclusion, the Board has considered the benefit-of- the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for hypertension, that doctrine does not apply. 38 U.S.C. § 5107 (b) (2012). The claim of entitlement to service connection for hypertension is denied. 2. Left Knee Disability The Veteran asserts that a higher rating is warranted for his left knee disability. His left knee disability is rated as 10 percent disabling under Diagnostic Code 5003-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2019). Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Generally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms “flare up,” to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Under Diagnostic Code 5003, a rating of 10 percent is provided for degenerative arthritis of a major joint or group of minor joints that is established by x-ray findings with pain and noncompensable limitation of motion. A rating under Diagnostic Code 5003 cannot be combined with a rating based on limitation of motion. A 20 percent rating is warranted with incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2019). Under Diagnostic Code 5260, limitation of flexion of the knee to 60 degrees warrants a zero percent rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. Limitation of flexion to 30 degrees warrants a 20 percent rating. Limitation of flexion to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2019). The Schedule provides that the normal range of motion of the knee is zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2019). Other diagnostic codes relating to the knee are Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (recurrent subluxation or lateral instability), Diagnostic Codes 5258 and 5259 (symptomatic dislocation and/or removal of semilunar cartilage), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of tibia and fibula) and Diagnostic Code 5263 (genu recurvatum). 38 C.F.R. § 4.71a (2019). The Veteran underwent a knee examination in November 2014. See Knee and Lower Leg Conditions DBQ, November 6, 2014. The examiner stated that the Veteran experienced left knee osteoarthritis, which was diagnosed on a 2014 X-ray. The Veteran reported that he experienced flare-ups of his left knee, which consisted of increased pain after prolonged standing, walking, stooping, kneeling, or repetitive climbing of stairs and ladders. The Veteran experienced the functional loss or impairment of no prolonged standing or walking, no frequent stooping or kneeling, and no repetitive climbing of stairs or ladders. Flexion was zero to 110 and extension 110 to zero degrees. The examiner stated that decreased range of motion caused functional loss. Pain was noted on examination and caused functional loss. There was pain on flexion and evidence of pain with weightbearing. There was no tenderness or pain on palpation. The Veteran was able to perform repetitive testing with no additional loss of motion. The examiner reported that pain significantly limited functional ability with repeated use over time. The Veteran stated that he experienced flare-ups once to twice a week, that they were mild, and that they lasted for a day. There was no reduction in muscle strength and no muscle atrophy. There was no ankylosis. Knee stability was normal. The Veteran denied shin splints. There were no meniscal conditions. There were no other pertinent findings. There was no evidence of crepitus. The examiner opined that the Veteran’s left knee condition impacted his ability to perform occupational tasks, as he experienced functional limitations of no prolonged standing or walking, no frequent stooping or kneeling, and no repetitive climbing of stairs or ladders. The Veteran underwent another knee examination in August 2019. See Knee and Lower Leg Conditions DBQ, August 2, 2019. The examiner confirmed diagnoses of bilateral knee osteoarthritis and left knee bursitis. The Veteran denied flare-ups, stated that he had knee pain all the time, that the pain was a burning sensation, that the pain was relieved by sitting, and that he did not experience swelling. The Veteran endorsed occasional swelling around the surgery scar on his left knee. The Veteran related that he was unable to stand for longer than an hour. As for functional impairment, the Veteran stated that he was unable to stand for long periods of time without rest, and was unable to perform any activities that required deep knee bending and lifting. Upon examination, flexion was zero to 130 degrees and extension 130 to zero degrees. The range of motion itself did not contribute to functional loss. Flexion exhibited pain. There was no evidence of pain on weight bearing. There was mild tenderness to palpation noted along the medical joint line. There was no evidence of crepitus. The Veteran was able to perform repetitive testing with no additional loss of motion. Muscle strength was normal, and there was no muscle atrophy and no ankylosis. There was no evidence of joint instability. The Veteran denied shin splints. The examiner noted that the Veteran underwent a meniscetomy. There were no other pertinent findings. The examiner opined that the Veteran’s left knee condition impacted his ability to perform occupational tasks, as he experienced functional limitations of no prolonged standing or walking, no frequent stooping or kneeling, and no repetitive climbing of stairs or ladders. X-rays showed osteoarthritis. The examiner opined that the degree of arthritis experienced by the Veteran was most consistent with his age, long-standing obesity, and lifestyle. VA treatment records show that the Veteran denied pain or swelling, had a normal gait, and denied joint pain. See VA treatment records, May 16, 2019; September 10, 2019; and September 10, 2019. The Board finds a rating in excess of 10 percent is not warranted. During the appeal period, the preponderance of the evidence supports that the Veteran did not have limitation of motion to the extent to warrant a higher rating, nor does the evidence support the Veteran had a condition that would warrant a higher rating under a different diagnostic code. The Board finds the Veteran is not entitled to a rating in excess of 10 percent for left knee arthritis based on limitation of motion. There is no evidence of record indicating he had limitation of flexion to 30 degrees or less to warrant a higher 20 percent rating, even considering the range of motion after repetitive testing and any additional loss of function due to pain or other factors. In fact, examination shows the Veteran's left knee flexion was, at worst, limited to 130 degrees. The Board also notes that at no time was extension of either knee limited to 10 degrees to warrant a separate compensable rating, even when considering any additional loss of motion due to pain and other factors. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2019). Examinations have never shown limitation of extension to 10 degrees. In addition, incapacitating episodes are not shown. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2016). The evidence did not show instability such that any separate compensable rating could be assigned under Diagnostic Code 5257. 38 C.F.R. § 4.71a (2019). The Board considered the Veteran’s contentions of his knee hurting after walking for a long time, deep-kneeling, and climbing stairs. Examiners observed normal gait with slight to no instability. The Veteran did not allege nor was observed to use a cane or assistive walking device. The Veteran’s complaints are considered in the 10 percent rating. Therefore, the Board finds that a separate rating under Diagnostic Code 5258 for the left knee is not warranted. 38 C.F.R. § 4.71a (2019). There is also no evidence, nor did the Veteran contend, that he had ankylosis, symptomatic dislocation, removal of cartilage, impairment of tibia or fibula, or genu recurvatum to warrant consideration under another diagnostic code. 38 C.F.R. § 4.71a (2019). When determining the Veteran is not entitled to a rating in excess of 10 percent for his left knee disability, the Board considered functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2019); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the 10 percent rating adequately compensates the Veteran for any pain, tenderness, and weakness associated with the service-connected left knee disability. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, the Board finds the criteria for an initial 10 percent rating for a left knee disability, and the preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Zenzano Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lech, 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.