Citation Nr: 21023494 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 11-11 656 DATE: April 20, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for left knee degenerative joint disease, irrespective of a temporary total rating based on convalescence from February 12, 2015 to May 1, 2015, is denied. Entitlement to a separate disability rating of 10 percent, but no greater, under Diagnostic Code 5259 for left knee partial meniscectomy is granted. Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease is denied. REMANDED Entitlement to service connection for radiculopathy of the bilateral upper extremities is remanded. Entitlement to service connection for radiculopathy of the bilateral lower extremities is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a prostate disability is remanded. FINDINGS OF FACT 1. The Veteran’s degenerative changes of the left knee has not manifested in severe recurrent subluxation or lateral instability; flexion limited to 30 degrees and extension limited to 15 degrees has not been shown, nor is ankylosis present. 2. The Veteran’s left knee partial meniscectomy has resulted in removal of some of the meniscus with symptoms of pain. 3. The Veteran’s degenerative changes of the right knee has not manifested in recurrent subluxation or lateral instability; flexion limited to 30 degrees and extension limited to 15 degrees has not been shown, nor is ankylosis present. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for left knee degenerative joint disease, irrespective of a temporary total rating based on convalescence from February 12, 2015 to May 1, 2015, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003-5260. 2. The criteria have been met for a separate 10 percent disability rating, but no higher, for left knee partial meniscectomy that is symptomatic. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5259. 3. The criteria for an evaluation in excess of 10 percent for right knee degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003-5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1974 until July 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2009 and April 2013 rating decisions of a Department of Veterans Affairs (VA) regional office (RO). In a May 2015 substantive appeal, the Veteran requested that he be scheduled for a Board hearing. However, in April 2016 he, instead, chose to have an informal appearance with a member of the rating board at the agency of original jurisdiction (AOJ). A conference report of that meeting is of record. Additionally, the Veteran’s representative confirmed this choice in the December 2017 Informal Hearing Presentation (IHP). This case was previously before the Board in May 2018 and August 2020 at which time it was remanded for additional development. While on remand, the RO granted service connection for a right ankle disability, sinusitis, and sleep apnea. As this constitutes a full grant of the benefits sought, those issues are no longer apart of the appeal currently before the Board. Ab v. Brown, 6 Vet. App. 35 (1993). Increased Rating The Veteran generally asserts that his bilateral knee disabilities are worse than his current evaluation reflects. The Board notes that the Veteran is presumed to be seeking the maximum possible evaluation. AB v Brown, 6 Vet. App. 35 (1993). Here, the Veteran’s left knee disability is rated at 10 percent from March 2, 2012, with a period of temporary total rating based on convalescence from February 12, 2015 to May 1, 2015; the Veteran’s right knee disability is rated at 10 percent from March 2, 2012. Disability ratings are determined by applying the criteria set forth in 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. Part 4.  If two evaluations are potentially applicable, 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.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3.  Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether they were raised by the veteran, as well as the entire history of the veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59.  The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability.  It is the intention to recognize painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Id.   The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14.  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).  Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995).  Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code (relating to range of motion) where pain does not cause a compensable functional loss. The “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because “pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss.” Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011).  Section 4.59 does not require objective evidence of painful motion.  The regulation does not speak to the type of evidence required when assessing painful motion and therefore certainly does not, by its own terms, restrict evidence to “objective” evidence. Petitti v. McDonald, 27 Vet. App. 415, 427 (2015).  If credible, lay testimony may consist of a veteran’s own statements to the extent that the statements describe symptoms capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).  Rating Criteria for the Knee VA amended the criteria for rating knee disabilities effective February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. For either effective diagnostic criteria, Diagnostic Codes 5256 through 5263 set forth the relevant provisions regarding evaluating knee disabilities. However, in this case, the evidence does not demonstrate ankylosis of the knee (Diagnostic Code 5256), recurrent subluxation or lateral instability (Diagnostic Code 5257), cartilage, semilunar, dislocated with frequent episodes of locking, pain, and effusion into the joint (Diagnostic Code 5258), or impairment of the tibia and fibula (Diagnostic Code 5262); thus, the Diagnostic Codes pertaining to such impairments are not applicable.  Diagnostic Code 5259, which remained unchanged, provides a 10 percent rating for symptomatic removal of semilunar cartilage. Diagnostic Codes 5260 and 5261, which remain unchanged, provide for ratings for limitation of motion of the knee. Limitation of flexion of the leg to 60, 45, 30, or 15 degrees are evaluated as 0, 10, 20, or 30 percent, respectively. Limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees are evaluated as 0, 10, 20, 30, 40, or 50 percent, respectively.  Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II.  The Board notes that the criteria under Diagnostic Codes 5259, 5260, and 5261 are not considered to be overlapping, and therefore separate ratings can be assigned where appropriate symptomatology is shown.  In a February 2008 correspondence, the Veteran stated that his bilateral knee disability was worse than it was currently evaluated and that he should be granted two ratings, one for each knee. June 2007 and April 2012 MRI interpretations indicate that the Veteran’s bilateral meniscus are torn. A March 2009 orthopedic note indicates that the Veteran has some knee effusion into his left knee and is not very symptomatic. July 2009 VA medical records show that the Veteran complains of pain and recurrent effusions in his knees. At a September 2009 VA examination, the Veteran reported increased difficulty getting up-stairs and worsening pain intensity in the anterior aspect of both knees. The VA examiner noted stiffness but failed to diagnose episodes of dislocation, subluxation, locking, instability, or patellar abnormality. The Veteran reported flare-ups on a weekly basis lasting 1 to 2 days each. Crepitus was noted on both knees. The range of motion for the right knee were extension to 0 degrees and flexion to 140 degrees with no objective painful motion; the range of motion for the left knee were extension to 0 degrees and flexion to 140 degrees with no objective painful motion. Medial meniscal tears were suspected for both knees. At a March 2013 VA examination, the Veteran reported that his pain gets worse during cold weather and rainy days; he denied flare-ups, locking, or giving away sensation. The range of motion for the right knee were extension to 0 degrees and flexion to 135 degrees with no objective painful motion; the range of motion for the left knee were extension to 0 degrees and flexion to 135 degrees with no objective painful motion. The Veteran was able to perform repetitive use testing. At a January 2015 VA examination, the Veteran denied locking or giving away sensation. He did, however, report flare-ups weekly lasting less than an hour which impact his prolonged walking and ability to climb stairs. The range of motion for the right knee were extension to 0 degrees and flexion to 135 degrees with objective painful motion and tenderness on palpation; the range of motion for the left knee were extension to 0 degrees and flexion to 135 degrees with objective painful motion and tenderness on palpation. At a May 2016 VA examination, the Veteran reported flare-ups affecting prolonged walking and standing, and his ability to climb stairs. The range of motion for the right knee were extension to 0 degrees and flexion to 40 with objective painful motion; the range of motion for the left knee were extension to 0 degrees and flexion to 50 degrees with objective painful motion. The VA examiner did, however, indicate that the Veteran has bilateral meniscus’ conditions resulting in pain and limited motion. A brace and cane are used for regular support. At a July 2016 VA examination, the Veteran reported constant bilateral knee pain, that his right knee gives way, and that his pain gets worse when walking long distances. The Veteran reported flare-ups, but the VA examiner did not estimate any range of motion loss from them. The range of motion for the right knee were extension to 0 degrees and flexion to 110 with painful motion; the range of motion for the left knee were extension to 0 degrees and flexion to 115 degrees with painful motion. The Veteran’s left knee partial meniscectomy impacted his range of motion and resulted in increased pain. As highlighted by the August 2020 Board decision, the January 2015, May 2016, and July 2016 VA examiners did not estimate the loss of range of motion during flare-ups or on both active and passive motion, in weight-bearing and non-weight bearing positions. In a September 2016 private knee disability benefits questionnaire, the private examiner diagnosed the Veteran with right knee tendonitis, left knee meniscal tear, bilateral knee osteoarthritis, and right knee suprapatellar calcification. The Veteran reported flare-ups resulting in knee pain and difficulty walking. Range of motion testing was not performed. At a September 2020 VA examination, the Veteran failed to report flare-ups. The range of motion for the right knee were extension to 0 degrees and flexion to 100 with painful motion; the range of motion for the left knee were extension to 0 degrees and flexion to 110 degrees with painful motion. While crepitus was noted, pain on weight-bearing was not. Pain residuals due to the Veteran’s February 2015 left knee partial meniscectomy was indicated; the Veteran did not have surgery on his right knee. To warrant a higher 20 percent rating, the Veteran would need to show flexion limited to 30 degrees or extension limited to 15 degrees. As recorded in the medical records mentioned above, the Veteran, at worst, has flexion to 40 degrees and extension to 0 degrees, and therefore does not meet the criteria for a twenty percent rating based on limited range of motion. Further, the Board notes that painful motion does not necessarily constitute limitation of motion for rating purposes. See Mitchell, 25 Vet. App. at 41. Although additional functional loss due to painful motion is alleged by the Veteran, the Board cannot find any objective medical evidence to show that painful motion or additional functional loss caused such an effect as such that would approximate flexion limited to 30 degrees. The Board notes that the August 2020 Board decision based its bases for remand, in part, on the VA examiners’ failure to estimate the additional loss of motion during a flare-up. However, the Veteran has since denied flare-ups at the September 2020 VA examination. However, the Board finds that a separate 10 percent rating is warranted under Diagnostic Code 5259 for left knee symptomatic removal of his bilateral semilunar cartilage. The May 2016 and September 2020 VA examiners concluded that the Veteran’s residuals of his February 2015 left knee partial meniscectomy included limited motion and pain. For this reason, a separate 10 percent rating for the Veteran’s left knee partial meniscectomy is warranted; this is the only evaluation allowed by this code. In reaching the above conclusions, the Board acknowledges that the Veteran sincerely believed that his symptoms are more severe than contemplated by his disability ratings currently assigned. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of pain and other symptomatology. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). While the Board has considered the lay statements of record, the Board has given them appropriate weight where they are consistent with the objective medical evidence of record. However, the Board has accorded greater weight to the objective evidence of record as VA clinicians and examiners have the requisite medical training and expertise to make complex medical determinations. Therefore, the medical evidence is more probative regarding the Veteran’s claim in this case. While the Board acknowledges that VA amended its musculoskeletal rating criteria, the Board has considered the new rating criteria where appropriate in this decision. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that the Board is not required to remand a claim for additional development when it would impose unnecessary burdens on VA with no additional benefit flowing to the veteran). In this case, a rating in excess of 10 percent for the Veteran’s left knee degenerative joint disease, irrespective of a temporary total rating based on convalescence from February 12, 2015 to May 1, 2015, is denied, as well as, entitlement to a rating in excess of 10 percent for right knee degenerative joint disease is denied. However, the Veteran is entitled to a separate 10 percent rating for the symptomatic left knee partial meniscectomy under Diagnostic Code 5259. The benefit of the doubt doctrine has been applied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral lower extremity radiculopathy is remanded. 2. Entitlement to service connection for bilateral upper extremity radiculopathy is remanded. Preliminarily, the Board notes that the August 2020 Board decision fully outlined the complex procedural history of this claim. However, it is worth reiterating that the Veteran filed his petition to reopen these claims in November 2012; it is from this date, therefore, that the appeal period runs. The Veteran asserts that he has bilateral lower and upper extremity radiculopathy secondarily related to his service-connected back and neck disabilities. As explained in the August 2020 Board remand, the Veteran submitted an October 2012 private medical opinion from Dr. L.E.F.C. in support of his petition to reopen. Therein, Dr. L.E.F.C. stated that it was more likely than not that the Veteran’s lumbar radiculopathy disabilities were related to service. As rationale, Dr. L.E.F.C. stated that the Veteran’s lumbar 4 and lumbar 5 polyradiculopathy was caused by the inflammatory comprising of the nerve roots structures due to the Veteran’s back and neck disabilities. On remand, the August 2020 Board decision instructed the addendum VA examiner to discuss the [1] October 2004 VA lumbar spine examination showing a diagnosis of clinical bilateral lumbar radiculopathy; [2] March 2008 VA cervical spine examination showing a diagnosis of cervical radiculopathy; [3] private EMG and nerve conduction studies from as early as December 2006 appearing to show radiculopathy in the bilateral upper and lower extremities; [4] the March 2013 VA examination indicating that the Veteran is negative for radiculopathy of the lower extremities; and [5] more recent private studies from September 2014 which appear to only show radiculopathy of the bilateral lower extremities and not the upper extremities. At a September 2020 VA examination, the Veteran reported a “burning like pain sensation.” However, the VA examiner concluded that the Veteran was not diagnosed with bilateral lower or upper extremity radiculopathy. The VA examiner reasoned that there was no objective evidence of radiculopathy during physical examination. It is unclear if the September 2020 VA examiner performed an MRI, EMG, or NCS to verify whether radiculopathy is present. Additionally, the VA examiner stated that he could not accept the December 2006 and June 2014 EMGs showing bilateral lower and upper extremity radiculopathy as it was proffered by Dr. L.E.F.C. The medical examiner mentioned that, according to a Department of Labor Office of Workers Compensation Program (OWCP) report, Dr. L.E.F.C. was charged with fraud by the Department of Justice and the Federal Bureau of Investigation. The OWCP report quoted by the examiner stated that Dr. L.E.F.C. would prepare fraudulent medical reports by diagnosing claimants with a non-existent injury in order to persuade the OWCP to grant worker’s compensation benefits. The Board has reviewed the September 2020 VA examiner’s charge of fraud against Dr. L.E.F.C. and finds that it carries merit. See https://oig.ssa.gov/sites/default/files/audit/full/pdf/nr_owcp_fraud_9-5-13.pdf. This claim of fraud against Dr. L.E.F.C. calls into question the validity, and credibility, of his December 2006, October 2012, and June 2014 medical findings of radiculopathy. Nevertheless, the Board cannot make a fully informed decision on these issues at this time as it is not clear that the September 2020 VA examiner performed the necessary medical imaging necessary to rule out radiculopathy. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Despite the September 2020 VA examiner’s finding that the Veteran did not have radiculopathy, such conclusion cannot be verified without this necessary associated medical testing. For these reasons, the Board will remand this claim to clarify the Veteran’s radiculopathy diagnosis. The addendum VA examiner must perform any necessary imaging tests to determine the presence of radiculopathy. 3. Entitlement to service connection for a left ankle disability is remanded. The August 2020 Board remand directives asked the addendum VA examiner to opine, in relevant part, whether the Veteran’s left ankle disability was caused or aggravated by the Veteran’s service-connected lumbar or cervical spine disabilities. The September 2020 VA examiner did not provide this requested opinion. Remand is therefore necessary to obtain it. Stegall v. West, 11 Vet. App. 268 (1998). 4. Entitlement to service connection for a prostate disability The August 2020 Board remand directives asked the addendum VA examiner to opine, in relevant part, whether the Veteran’s prostate disability was secondarily caused by medications used to treat his service-connected disabilities. While the September 2020 VA examiner provided an opinion that his prostatitis was related to prostate hypertrophy and a 2012 bacterial infection, the VA examiner did not discuss the role the Veteran’s service-connected disability medications has in its relation to it. Remand is therefore necessary. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral upper and lower extremity radiculopathy. The examiner(s) must review the claims file in its entirety and that review should be noted in the examination report. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests that are deemed necessary for an accurate assessment, to include MRI, EMG, or NCS testing must be conducted. The examiner must record all pertinent medical complaints, symptoms and clinical findings in detail. The examiner must separately address each item and the identified relevant evidence: Whether the Veteran has a diagnosis of radiculopathy of the lower and upper extremities during the appeal period beginning in November 2012. The VA examiner must address separately the [1] October 2004 VA lumbar spine examination showing a diagnosis of clinical bilateral lumbar radiculopathy; [2] March 2008 VA cervical spine examination showing a diagnosis of cervical radiculopathy; [3] private EMG and nerve conduction studies from as early as December 2006 appearing to show radiculopathy in the bilateral upper and lower extremities; [4] the March 2013 VA examination indicating that the Veteran is negative for radiculopathy of the lower extremities; and [5] more recent private studies from September 2014 which appear to only show radiculopathy of the bilateral lower extremities and not the upper extremities. The Board highlights the December 2006, October 2012, and September 2014 diagnoses of radiculopathy by Dr. L.E.F.C. and the September 2020 VA examiner’s charge of fraud against him. See https://oig.ssa.gov/sites/default/files/audit/full/pdf/nr_owcp_fraud_9-5-13.pdf. The VA examiner is asked to clarify whether any or all the Veteran’s radiculopathy diagnoses in this appeal period are stained, or not, by this charge of fraud against Dr. L.E.F.C. In other words, is there any diagnosis of radiculopathy that is not tainted by this development? 2. Obtain an addendum VA medical opinion to determine the nature and etiology of the Veteran’s left ankle and prostate disabilities. In-person examinations (or telehealth interviews or similar action, if in-person examinations are not feasible) need not be scheduled unless it is deemed necessary by the examiner(s) or otherwise required by the evidence. The examiner(s) must review the claims file in its entirety and that review should be noted in the examination report. The examiner(s) must separately address each item and the identified relevant evidence: Left Ankle (a) Is it at least as likely as not that the Veteran’s left ankle disability was caused by or is otherwise related to active service? (b) Is it at least as likely as not that the Veteran’s left ankle disability was caused by his service-connected bilateral knee, lumbar spine, cervical spine, or right ankle disabilities? (c) Is it at least as likely as not that the Veteran’s left ankle disability was aggravated (any incremental increase in disability) by his service-connected bilateral knee, lumbar spine, cervical spine, or right ankle disabilities? The examiner must address the Veteran’s October 2001 diagnosis of left ankle mild degenerative joint disease, his lay complaints that his left ankle pain is constant, and the July 2012 Social Security Administration medical records indicating that he has an antalgic gait and walks with short steps due to his bilateral knee conditions and appeared to lose balance while walking in tandem. Prostate (a) Is it at least as likely as not that the Veteran’s prostate disability is caused by service or is otherwise related to service? (b) Is it at least as likely as not that the Veteran’s prostate disability is caused by the Veteran’s service-connected disability, to include the medications he takes for them? (c) Is it at least as likely as not that the Veteran’s prostate disability is aggravated (any incremental increase in disability) by the Veteran’s service-connected disabilities, to include the medications he takes for them? The VA examiner must address the November 2012 lay statement that he experiences a prostate disability secondary to medications he used to treat his service-connected disabilities. The VA examiner must also address the March 2012 diagnosis of prostatitis, and March 2013 VA examination diagnosis of prostate hypertrophy with an onset in 2012. B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, Associate 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.