Citation Nr: 21026205 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-33 774 DATE: April 30, 2021 ORDER Since there is new and material evidence, the petition to reopen a claim of entitlement to service connection for a right elbow disability is granted; however, the underlying claim for service connection is denied. Entitlement to a rating in excess of 10 percent for right knee instability is denied. Entitlement to a rating in excess of 10 percent for left knee instability is denied. Entitlement to an initial rating in excess of 10 percent for right knee arthritis is denied. Entitlement to an initial rating in excess of 10 percent for left knee arthritis is denied. REMANDED Entitlement to initial “staged” ratings in excess of 0 percent (noncompensable) prior to December 17, 2019, and in excess of 10 percent since, for right partial scaphoid excision (previously rated as a right wrist condition) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Additional evidence since submitted or otherwise obtained, when considered with the record as a whole, is neither cumulative nor redundant of the evidence of record at the time of the last final and binding denial of the claim for service connection for a right elbow disability and raises a reasonable possibility of substantiating this claim. 2. The preponderance of the evidence is still, though, against finding that the Veteran has a right elbow disability that was caused or aggravated by his service or a service-connected disability. 3. The evidence is against finding that he has more than mild or slight instability of either knee. 4. The evidence is against finding that his right and left knee arthritis results in extension limited to 5 degrees or greater or flexion limited to 60 degrees or less. CONCLUSIONS OF LAW 1. Evidence received since the last final and binding denial of the claim of entitlement to service connection for a right elbow disability is new and material; consequently, this claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.302, 20.1103 (2018). 2. But the criteria still are not met for entitlement to service connection for a right elbow disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria are not met for entitlement to a rating in excess of 10 percent for right knee instability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 4. The criteria are not met for entitlement to a rating in excess of 10 percent for left knee instability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 5. The criteria are not met for entitlement to a rating in excess of 10 percent for limitation of motion due to the right knee arthritis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5260. 6. The criteria are not met for entitlement to a rating in excess of 10 percent for limitation of motion due to the left knee arthritis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5260 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1992 to April 1996 and from April 2009 to August 2012. These claims were previously before the Board in December 2018 but were remanded back to the Agency of Original Jurisdiction (AOJ), i.e., back to the local Regional Office (RO) for further development and consideration – including especially to obtain relevant treatment records and for a medical nexus opinion concerning the origin of the claimed right elbow disability, particularly in relation to the Veteran’s military service. There has been the required compliance – certainly acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).   New and Material Evidence and Service Connection 1. Entitlement to service connection for a right elbow disability This claim previously was considered and denied in an April 2013 RO rating decision that was not appealed so is a final and binding determination based on the evidence then of record. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In that April 2013 rating decision, the RO found no evidence of a then current right elbow disability, so, for all intents and purposes, no then current disability to, in turn, relate or attribute to the Veteran’s military service. A claim that has been previously considered, denied, and not appealed – therefore, has a final and binding determination concerning it, will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a); see also Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). The claims file now includes clinical evidence that the Veteran may have a right elbow disability; thus, under the “low” threshold espoused in Shade, the claim is reopened. In October 2014, the RO also reopened the claim – albeit then denied it on a de novo basis; thus, the Board may proceed to adjudicating the claim on its underlying merits without potential prejudice to the Veteran since the RO already has. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation (“nexus”) between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also 38 U.S.C. § 1110; 38 C.F.R. § 3.303.   In 2012, when separating from service, the Veteran filed a claim of entitlement to service connection for a right elbow disability and stated that he had had an infection in his blood stream while on active duty. The Board acknowledges that, during his service, he complained of a swollen olecranon, redness, and pain, with a consequent diagnosis of right upper extremity cellulitis, which was treated with medication (see May 2010 Family Medicine record). However, that was more than two years prior to his separation from service, and the most probative evidence of record indicates that infection in service resolved, so there are no chronic residuals. The most probative evidence also is against finding that he has any current right elbow disability of any sort owing to his service. Thus, service connection is not warranted. A September 2014 Disability Benefits Questionnaire (DBQ) reflects that the Veteran reported that the pain from his cellulitis in service had resolved, but that he now gets pain in this elbow after repetitive use. But, on examination, he had full range of motion with no objective evidence of painful motion. An X-ray showed normal mineralization and alignment, with no evidence of fracture or dislocation. An October 2017 primary care annual evaluation note shows the Veteran reported chronic aching/pain in multiple joints, including in his “hands as well – [but] not elbows”. If he had chronic elbow pain, it seems reasonable that he would have reported it, rather than contrarily specifically denying it. Rheumatology clinical records, when annotating musculoskeletal exams, indicate the Veteran’s right elbow was not tender and had no soft tissue swelling (see, e.g., January 2019, July 2019). Nevertheless, as already alluded to, the Board remanded this claim back to the RO in December 2018, partly for additional medical comment concerning the nature and etiology of the Veteran’s claimed right elbow disability. A December 2019 DBQ, completed in response to that remand directive, indicates the Veteran reported having intermittent, mild elbow pain, which he described as having reached a level of 2/10 once or twice over the last couple of months He said it can hurt after prolonged driving. Upon examination, he had normal range of motion but reported difficulty with pushups with full extensions. It was observed that he had pain on examination (extension), but that it did not result in functional loss. There would not be any additional limitation with a flare up. The examiner found that the Veteran had “minimal possible strain on the extreme of extension, with normal [range of motion] on examination. The report clarifies that this impairment is not owing to bursitis and not related to the cellulitis in service, as that has resolved with no sequela (residuals). The examiner further determined that the right elbow strain occurring many years after the Veteran’s event in service had no proximal relationship to the remote superficial soft tissue infection in service that had resolved with antibiotics. The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of any current right elbow disability, including in terms of whether related or attributable to anything that occurred during his time in the military. This determination is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The only probative medical opinion addressing this determinative issue of causation is the December 2019 DBQ completed on remand. There is no probative opinion with adequate rationale and based on review of pertinent clinical records contrarily suggesting the Veteran has a current right elbow disability that is as likely as not attributable to his service. For these reasons and bases, service connection is not warranted. And, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).   Increased Ratings Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran’s condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). “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). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings.   VA amended the criteria for rating musculoskeletal disabilities effective as of February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the AOJ (RO) 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 are 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. See 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 date of the new regulation if the prior version was in effect during the pendency of the appeal. Older version (prior to February 7, 2021) for Rating the Knee Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5003, for arthritis, instructs the rater to evaluate the arthritis based on the extent it causes limitation of motion. And since limitation of knee motion, in turn, is determined by Diagnostic Code 5260 (flexion) and 5261 (extension), these other codes are implicated. Limitation of flexion warrants 10, 20, and 30 percent ratings when the limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when the limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran also has separate ratings, meaning apart from the arthritis with consequent limitation of motion, owing to knee instability. VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998).   This “other” knee impairment, including owing to recurrent subluxation or lateral instability, warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Ratings also may be assigned, including separately, when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. See also Lyles v. Shulkin, 29 Vet. App. 107 (2017). Newer Version (from February 7, 2021) for Rating the Knee Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a 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. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for 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.   A 20 percent rating is warranted for 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. A 30 percent rating is assigned for 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. 2. Entitlement to a rating in excess of 10 percent for right knee instability AND 3. Entitlement to a rating in excess of 10 percent for left knee instability The Veteran has had 10 percent ratings for his right and left knee instability under Diagnostic Code 5257 effectively since August 4, 2012. According to a September 2014 DBQ, on joint stability testing, the Veteran had normal results for posterior and medial-lateral and 1+ for anterior instability. January 2018 VA clinical records reflect that the Veteran reported having a “trick” left knee that occasionally causes him to lose balance (occasionally his knee gives out); he requested a left knee brace to assist with stability, as needed. An April 2019 VA record reflects that, upon examination, the Veteran had no medial or lateral laxity, and the anterior/posterior drawer signs were negative. A December 2019 DBQ shows that, on joint stability testing, the Veteran had all normal findings. Higher ratings consequently are not warranted because the evidence does not show more than relatively “slight” instability. In English v. Wilkie, 30 Vet. App. 347 (2018), the Court held that DC 5257 does not “speak to the type of evidence required and, thus, objective medical evidence [is not] required to establish lateral knee instability under that DC.” The Court further held that “[t]he Board [cannot] categorically find objective medical evidence more probative than lay evidence with respect to [DC 5257] without supporting its conclusion with an adequate statement of reasons or bases.” Here, though, as already discussed, the September 2014 examiner found only one area of instability, and the April and December 2019 examiners determined there was no instability. So, despite the holdings in English, the Board finds that the clinical examinations concerning this are more probative than the Veteran’s lay statements regarding the severity of his knee instability (as contemplated in DC 5257) because the clinicians are trained in evaluating the different cartilage and ligaments of the knee and in performing the various tests to assess whether the knee is unstable or subluxed (e.g., varus and valgus, Lachman’s, etc.). Moreover, and importantly, no clinician has found more than slight instability on examination of the Veteran’s knees. Thus, the evidence does not support finding that it is as likely as not that either knee instability is moderate or severe rather than slight. Moreover, under the newer rating criteria, a higher rating is not warranted because he has not had a surgical repair. 4. Entitlement to an initial rating in excess of 10 percent for right knee arthritis AND 5. Entitlement to an initial rating in excess of 10 percent for left knee arthritis The Veteran’s right and left knee arthritis is evaluated as 10-percent disabling for each knee under hyphenated Diagnostic Code 5010-5260, which, as already explained, considers the effect the arthritis has on his range of motion and especially on his flexion. He would be entitled to a higher evaluation if he had flexion limited to 30 degrees or less, but he does not. The September 2014 VA examination report indicates the Veteran had full range of motion of both the right and left knee with no objective evidence of pain. After repetitive use testing, he continued to have full range of motion. He had no tenderness or pain to palpation and had full muscle strength. He had no evidence or history of recurrent patellar subluxation/dislocation. He did not report any flare-ups. He subsequently contended that a goniometer was not used in assessing the range of motion of his knees; however, he has not provided competent and credible evidence that his knee extension was limited to a compensable degree or that his flexion was limited to 45 degrees or less or that the examiner’s evaluation and findings were erroneous. A more recent December 2019 DBQ shows the Veteran goes to physical therapy twice a week. He reported that, on a good day, his pain is an average of 3/10 and, on a bad day, the pain averages 6/10. His nights are pain-free. He reported flares improve by strengthening, limiting walking, or with Tylenol and Motrin. He said prolonged bending without extending them out or going downhill or downstairs is limited. On objective physical examination, he had full range of motion. No pain was noted on examination, including with weight bearing. Moreover, there was no loss of range of motion after repetitive use testing, and the examiner surmised there would be a loss of 5 degrees of flexion after repeated use over time or during a flare-up. The Veteran continued to have full muscle strength. Based on the results of his several medical evaluations, the Veteran does not meet the rating criteria for a compensable rating based on his specific ranges of motion, either on flexion or extension. However, a 10 percent rating may be assigned in this circumstance, nevertheless, if there is painful motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Clinical records note complaints of chronic bilateral knee pain. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause functional loss, pain itself does not constitute functional loss. The Court in Mitchell explained that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (noncompensable) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. Rather, the pain “must actually affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance’ [under] 38 C.F.R. § 4.40 in order to constitute functional loss” warranting a higher rating. See id. at 43. Although the Veteran has reported experiencing pain, the objective clinical findings reflect that he still has not had reduced range of motion and, even after repetitive use testing, would only have an anticipated loss of 5 degrees of flexion. As such, his existing ratings sufficiently compensate him – again, even when considering his pain. The Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). In addition, the regulations do not provide for separate ratings for flexion and extension when neither is limited to a compensable degree. VAOPGCPREC 9-2004 (September 17, 2004). Rather, he is entitled to one rating for each knee for his arthritis and consequent painful motion (meaning aside from the separate ratings he already has for his slight knee instability). For these reasons and bases, the current 10 percent rating for each knee’s arthritis adequately compensates the Veteran for the extent of his disability. REASONS FOR REMAND 6. Entitlement to initial “staged” ratings in excess of 0 percent prior to December 17, 2019, and in excess of 10 percent since, for right partial scaphoid excision (previously rated as a right wrist condition) is remanded. A September 2014 DBQ indicates the Veteran reported experiencing wrist pain at night after using his wrist a lot during that day. Upon examination, he had full range of motion, including after repetitive use testing. He also reported excess fatigability; he had full muscle strength. An August 2015 VA record notes some right wrist pain, and there was “some limitation to wrist flexion” on examination.   A January 2017 VA surgical orthopedic consultation indicates the Veteran reported experiencing right wrist pain and instability for “a couple of years”, which had been gradually getting worse A March 2019 VA clinical record indicates an electrodiagnostic study showed evidence of “severe right medial sensory and motor neuropathy at or about the wrist” and evidence of carpal tunnel syndrome (CTS). A December 2019 DBQ notes reduced range of motion with objective evidence of pain, however, it does not discuss the March 2019 electrodiagnostic study. As the Veteran is in receipt of service connection for excision of the scaphoid (one of the small bones that makes up the carpal tunnel), the Board finds that a medical opinion is needed whether the likelihood his CTS is related to the excision of his scaphoid and, if so, the associated symptoms and impairment because this determination may provide grounds for a higher evaluation under the criteria for rating peripheral nerve injuries. 7. Entitlement to a TDIU prior to December 8, 2016 is remanded. The combined rating for the Veteran’s service-connected disabilities meets the schedular percentage requirements for a TDIU effective from December 8, 2016. He contends that he last worked in 2012. This remaining claim of entitlement to a TDIU is "inextricably intertwined" with the claim for a higher rating for the right wrist disability, so consideration of this derivative TDIU claim must be deferred until completion of the additional development being directed concerning the claim for a higher rating for the right wrist disability.   Accordingly, these remaining claims are REMANDED for the following action: Obtain a medical opinion concerning whether it is as likely as not (50 percent or greater probability) the Veteran’s partial scaphoid surgical excision causes or aggravates an upper extremity nerve and, if so, to what extent, including the level of sensory and/or physical manifestations (e.g., muscle weakness, diminished or absent reflexes, numbness, paresthesias, dysesthesias). The examiner must provide rationale when opining on whether there is a relationship between the Veteran’s service-connected right wrist disability and any nerve impairment, including considering other possible etiologies such as CTS and whether the contalateral left wrist has similar impairment. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.