Citation Nr: 21025257 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-43 820 DATE: April 27, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right knee disability is denied. REMANDED Service connection for hypertension is remanded. FINDING OF FACT Even considering the Veteran’s pain and corresponding functional loss, including during flare-ups, the weight of the competent and probative evidence is against finding limitation of flexion of the right knee at less than 30 degrees or extension at less than 15 degrees. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5003-5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 2004 to July 2009 with combat service in Iraq, where the Veteran served from February 2005 to January 2006 and from December 2007 to March 2009. The Veteran’s decorations include the Combat Action Badge and the Parachutist Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2011 and July 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in December 2019. These matters were remanded by the Board in January 2020 for additional development. The Board also notes that the Veteran was awarded a total disability rating based on individual unemployability due to the Veteran’s service-connected PTSD alone (TDIU), effective May 2, 2016, in a January 2020 Board decision. As the effective date of May 2, 2016 is the date following the Veteran’s last full day of employment according to his July 2018 VA Form 21-8940, the Board finds that the Veteran has been granted individual unemployability throughout the entire appeal and the issue is not before the Board. C.f. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). 1. Entitlement to a disability rating in excess of 10 percent for right knee disability. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to be applied, 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury, which would permit rating under several diagnostic codes; however, 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 conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disabilities of the knee are rated under Diagnostic Code 5256 through Diagnostic Code 5263 of 38 C.F.R. § 4.71a. In considering the applicability of other diagnostic codes, the Board finds that Diagnostic Code 5256 (ankylosis of the knee); Diagnostic Code 5257 (recurrent subluxation or instability); Diagnostic Code 5258 (cartilage, semilunar, dislocated); Diagnostic Code 5259 (cartilage, semilunar, removal of, symptomatic); Diagnostic Code 5262 (impairment of the tibia and fibula); and Diagnostic Code 5263 (genu recurvatum), are not applicable in this case, as the evidence does not show that the Veteran has any of those conditions. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that although a VA examination need not be conducted during a flare-up to be adequate for assessing the extent of additional functional loss during a flare-up, an examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the Veteran. Id. at 34-35. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is considered compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. The Veteran asserts that his right knee disability is worse than contemplated by his assigned disability rating. See Hearing Testimony, December 2019. The Veteran is currently rated at 10 percent for right knee degenerative joint disease under DC 5003-5260, effective December 1, 2010. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated 0 percent disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Full flexion of the leg is to 140 degrees and full extension is to 0 degrees. 38 C.F.R. § 4.71, Plate II. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Effective February 7, 2021, the new regulation changed Diagnostic Code 5003 to degenerative arthritis, other than post-traumatic, changed Diagnostic Code 5257 from the subjective terms to detailed types of instability resulting in specific types of impairments, and changed Diagnostic Code 5262 from subjective criteria (slight, moderate, and marked impairment of the knee or ankle), to evaluating under the Diagnostic Codes for the knee or ankle, whichever is the highest rating. The Veteran underwent a VA examination in November 2014. The examiner recorded full range of motion of the right knee with no loss of range of motion following repetitive use, but the Veteran reported pain. In January 2021, a VA examination was conducted where the Veteran again reported current symptoms of knee pain and crepitus with squatting, running, and walking, but did not report flare ups. He stated that his treatment consists of lidocaine treatment, physical therapy, and ibuprofen. The examiner recorded full range of motion of the right knee with no loss of range of motion following repetitive use, but noted pain with flexion, objective evidence of localized tenderness or pain on palpation of the joint in the medial knee with mild severity related to degenerative joint disease, evidence of pain with weight bearing, and crepitus. Medical treatment records show continuous reports of right knee pain, which is aggravated by kneeling, squatting, ascending/descending stairs, and prolonged sitting and noted full range of motion of the right knee. See Medical Treatment Records, October 2006, November 2013, December 2014, and September 2016. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s right knee disability warrants a rating in excess of 10 percent based on arthritis with limitation of motion. For an increased rating based on limitation of motion, the evidence must minimally establish that the Veteran’s right knee disability is manifested by flexion limited to 30 degrees (Diagnostic Code 5260), and/or by extension limited to 15 degrees (Diagnostic Code 5261). At no point during the appeal period has the Veteran’s right knee flexion shown to be less than 140 degrees (January 2021 VA examination report), or extension shown to be other than normal, even with consideration of pain on range of motion testing, and after repetitive range of motion testing. Hence, the criteria for an increased rating under either Diagnostic Code 5260 or 5261 is not met. The Board has considered 38 C.F.R. §§ 4.40, 4.45, and 4.59, but finds that the competent and probative evidence weighs against finding weakened movement, excess fatigability, incoordination, and/or pain after repeated use over time resulting in motion limited to 30 degrees for flexion or 15 degrees for extension. In addition to testing, the Veteran has been asked to describe functional loss and impairment and he did not describe loss of motion to the degree required for a higher rating. Sharp, 29 Vet. App. at 34-35. Simply put, after considering the medical findings and lay statements, the evidence does not suggest that motion is limited to the requisite degree for a higher rating. REASONS FOR REMAND 1. Service connection for hypertension is remanded. The evidence shows that the Veteran has hypertension and his service treatment records show reports of high blood pressure. In the January 2020 Board remand, a medical opinion was requested to discuss the possibility of a relationship between his hypertension and his active service, his service-connected PTSD, or his exposure to burn pits during Gulf War service. In February 2021, a VA examination was conducted where the examiner found that the Veteran does not have a diagnosis of hypertension. In making this conclusion, the examiner noted blood pressure readings from January and February 2021. However, medical treatment records note hypertension blood pressure elevation and treatment with amlodipine in May 2011, a provisional diagnosis of essential hypertension in June 2011, the notation of a history of high blood pressure/vascular hypertension in November 2017, and the notation of benign essential hypertension in April 2020. As such, the Board finds the February 2021 VA examination inadequate as it did not fully discuss the Veteran’s treatment records. Thus, a remand for a medical opinion is warranted. The matters are REMANDED for the following action: Forward the claims file to a VA examiner in regard to his diagnosed hypertension. Following a review of all of the evidence, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran’s hypertension had its onset during service or within one year of service or is otherwise related to service, to include whether it was caused by his service-connected PTSD and/or exposure to environmental toxins while serving in combat in the Persian Gulf. The examiner must discuss the notations of hypertension in the Veteran’s medical treatments, specifically the record of hypertension blood pressure elevation and treatment with amlodipine in May 2011, a provisional diagnosis of essential hypertension in June 2011, the notation of a history of high blood pressure/vascular hypertension in November 2017, and the notation of benign essential hypertension in April 2020. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.