Citation Nr: 21027826 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 13-30 758 DATE: May 6, 2021 ORDER An initial 10 percent rating for service-connected left knee disorder is granted, subject to the rules and regulations governing the award of monetary benefits. An initial 10 percent rating for service-connected right knee disorder is granted, subject to the rules and regulations governing the award of monetary benefits. REMANDED Entitlement to service connection for a breathing disorder is remanded. Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for a left elbow disorder is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the evidence is at least in equipoise as to whether the Veteran's left knee has been manifested by painful motion. 2. For the entire period on appeal, the evidence is at least in equipoise as to whether the Veteran's right knee has been manifested by painful motion. CONCLUSIONS OF LAW 1. The criteria for a 10 percent disability rating, but no higher, for service-connected left knee disorder have been met. 38 U.S.C. § §§ 1155, 5107; 38 C.F.R. § §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for a 10 percent disability rating, but no higher, for service-connected right knee disorder have been met. 38 U.S.C. § §§ 1155, 5107; 38 C.F.R. § §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2007 to June 2010. The Veteran died in December 2016, while these claims were pending. The Appellant is his surviving spouse and the Agency of Original Jurisdiction (AOJ) has accepted her request to be substituted for the deceased Veteran for the purpose of processing this claim to completion. See April 2019 Correspondence. In a decision issued in June 2019, the Board denied entitlement to initial compensable ratings for the left and right knees and service connection for breathing, neck, and left elbow disorders. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court issued an order granting a Joint Motion for Remand (JMR) which vacated the Board's June 2019 decision and remanded this matter on appeal for adjudication consistent with the instructions outlined in the JMR. The Board notes that the issue of entitlement to service connection for the cause of the Veteran's death will be discussed and determined in a separate decision to be issued under a separate AMA docket number. 1. Entitlement to initial compensable ratings for service-connected left and right knee disorders. 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. §§ 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). 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). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. §§ 4.40. It is important that when evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. §§ 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. §§ 4.45. It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is also the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. §§ 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). The Veteran's left and right knee disorders are rated pursuant to DC 5260. Under 38 C.F.R. § 4.71a, DC 5260, a noncompensable rating is warranted where knee flexion is limited to 60 degrees, a 10 percent rating is warranted where knee flexion is limited to 45 degrees, a 20 percent rating is warranted where knee flexion is limited to 30 degrees, and a 30 percent rating is warranted where knee flexion is limited to 15 degrees. For rating purposes, normal range of motion of the knee is from 0 to 140 degrees. See 38 C.F.R. § 4.71a, Plate II. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Where there is a question as to which of two evaluations shall 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In January 2012, the Veteran underwent a VA examination to evaluate his bilateral knees. The Veteran reported knee pain that occurred constantly and limited his ability to run. The Veteran also reported flareups that occurred 2 to 3 times per week and resulted in swelling. The examiner diagnosed the Veteran with iliotibial band syndrome and documented normal range of motion with no objective evidence of painful motion. There was also no additional loss of range of motion on repetitive use testing, no instability, and no functional impact. Throughout the entirety of the appeal period, the Veteran's VA treatment records documented bilateral knee pain/arthralgia, without range of motion loss. Considering the clinical findings in the VA treatment notations in conjunction with the Veteran's consistent competent and credible reports of pain under 38 C.F.R. § §§ 4.40, 4.45, and 4.59, the Board concludes that the Veteran is entitled to increased 10 percent ratings based on pain of the left and right knee joint. His credible lay statements are sufficient to demonstrate a painful left and right knee joints under C.F.R. § 4.59. There is, however, no clinical evidence of limitation of motion of the left or right knee, or other relevant symptomatology, to warrant higher ratings under DCs 5260 and 5261. In reaching the above conclusion, the Board acknowledges that any VA examinations of the Veteran's bilateral knees must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). The Board has also considered the United States Court of Appeals for Veterans' Claims (Court's) holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), addressing 38 C.F.R. § 4.40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." In light of these requirements, the Board has carefully considered the VA examination of record and whether it complied with Correia and Sharp. Significantly, however, to the extent that the examination findings of record relative to the bilateral knees are not completely in compliance with Correia and/or Sharp, the Board finds that remand for additional evidence, to include a medical opinion, would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In that regard, the record reflects that the Veteran passed away in December 2016 and any retrospective opinion would merely impose an additional burden on VA with no benefit flowing to the Appellant, as the VA would be asking an examiner to speculate. REASONS FOR REMAND 1. Entitlement to service connection for a breathing disorder, neck disorder, and left elbow disorder are remanded. In September 2011, the Veteran underwent a VA examination to evaluate his breathing disorder, neck disorder, and elbow disorder. The Veteran reported that he had a chronic cough since 2010, was exposed to burning garbage during service, and did not seek medical care while on active duty. The Veteran also reported that he had a left elbow abrasion during service and the abrasion healed without sequelae. The examiner found no evidence of a neck injury. The VA examiner also found no objective evidence of any respiratory condition because there was no cough or dyspnea. The examiner concluded she could not provide a diagnosis for any respiratory condition related to exposure to Persian Gulf War service and explained that a cough was a normal physiological function of the body and the shortness of breath was more likely a symptom associated with anxiety than a respiratory condition. Significantly, however, since the September 2011 VA examination was conducted, the Veteran appears to have been diagnosed with bronchitis and abnormal chronic cough and there was evidence of neck pain with decreased range of motion. As such, the Board finds that the September 2011 VA examination was insufficient for rating purposes because it did not consider more recent/relevant evidence that is highly pertinent to the claim. The Board also notes that the September 2011 VA examiner failed to provide an opinion as to whether the Veteran's left elbow scar was etiologically related to service. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Accordingly, remand is warranted for new VA medical opinions consistent with the directives herein. The record also reflects that there are outstanding service treatment records and VA and private treatment records that have not been obtained or requested. In that regard, based on the Veteran's reports, he received treatment during active duty service at Camp Bastian, Afghanistan and Landstuhl Regional Medical Center, Germany; was treated at Milwaukee VA immediately following service, and was treated in March 2016 at Wheaton Franciscan for bronchitis. On remand, additional development is requested to attempt to obtain these records. See 38 C.F.R. § 3.159(c)(1). The matters are REMANDED for the following actions: 1. With the Appellant's assistance, attempt to obtain outstanding treatment records as indicated above. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the record development above, obtain a VA medical opinion from an appropriate examiner to assess the etiology of the Veteran's breathing disorder. Based on a review of the evidence of record, the examiner should respond to the following: a) The examiner must provide a diagnosis for any breathing disorder present during the applicable appeal period, including bronchitis and abnormal chronic cough. b) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed breathing disorder is related to active duty service. In rendering the above opinions, the examiner must specifically consider and discuss: i) the Veteran's reports of a chronic cough since Afghanistan and being exposed to burning garbage during service (See September 2011 VA Treatment records and September 2011 VA Examination report) and ii) the VA treatment records showing diagnoses for bronchitis and an abnormal chronic cough (See March 2012 and July 2013 VA Treatment records). The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Following the record development above, obtain a VA medical opinion from an appropriate examiner to assess the etiology of the Veteran's neck disorder. Based on a review of the evidence of record, the examiner should respond to the following: a) The examiner must provide a diagnosis for any neck disorder present during the applicable appeal period. In rendering such diagnosis, the examiner is reminded pain that causes functional impairment of earning capacity may constitute a disability even if there is no formal diagnosis. b) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed neck disorder is related to active duty service. In rendering the above opinions, the examiner must specifically consider and discuss the VA treatment records showing neck tenderness and limited range of motion when looking to the left. See December 2014 VA Treatment records. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Following the record development above, obtain a VA medical opinion from an appropriate examiner to assess the etiology of the Veteran's left elbow disorder. Based on a review of the evidence of record, the examiner should respond to the following: a) The examiner must provide a diagnosis for any left elbow disorder present during the applicable appeal period. b) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed left elbow disorder is related to active duty service. In rendering the above opinions, the examiner must specifically consider and discuss the Veteran's reports of sustaining an abrasion during active duty service and the September 2011 VA examination report showing a left elbow scar. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.