Citation Nr: 21032408 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-26 893 DATE: May 27, 2021 ORDER Entitlement to a disability rating greater than 10 percent for right knee strain is denied. Entitlement to service connection for a right shoulder disability is denied. FINDINGS OF FACT 1. The record evidence shows that, throughout the period on appeal, the service-connected right knee strain is manifested by, at worst, complaints of painful motion. 2. The record evidence shows that the Veteran's claimed right shoulder disability is not related to active service. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent disabling for right knee strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5256-5263 (2019). 2. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1991 to October 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs Regional Office (RO). Both issues were remanded to the RO in November 2018 for development. Following completion of that development, a supplemental statement of the case (SSOC) was issued to the Veteran in September 2020 and the case was returned to the Board. Increased Rating 1. Entitlement to a disability rating greater than 10 percent for right knee strain. The medical evidence of record shows that, on June 2014 VA examination, the examiner noted a diagnosis for right knee strain. Although the exam was not conducted during a flare, the Veteran described not being able to walk as much during the pain from flares. Range of motion (ROM) testing revealed flexion to 75 degrees and no limitation of extension. Neither movement produced objective evidence of painful motion. Repetitive-use ROM testing gave the same results; however, the examiner noted functional loss in the form of less movement than normal after repetitive use. palpation of the joint incurred tenderness and pain. Muscle strength testing was normal, as was joint instability testing. Upon review of available medical records and imaging, the examiner determined the Veteran's history was negative for arthritis, patella subluxation, or other significant findings. During the exam, the Veteran reported constant cane use. The examiner concluded that the Veteran's right knee condition did not impact his ability to work. An October 2015 VA MRI revealed a nondisplaced horizontal tear of the medial meniscus posterior horn, and focal medial patellar facet osteoarthritis. VA records from November 2015 show the Veteran reported a significant increase in pain around two years prior. He described his pain a 5/10, sharp, searing, primarily when flexed, sitting, or negotiating stairs. He denied popping or buckling. On exam, the provider noted mild patellar crepitus, no laxity, range of motion from 0-110 degrees, and normal strength. VA records from June 2016 show the Veteran reported a significant increase in pain around two years prior. He described his pain a 5/10, sharp, searing, primarily when flexing his knee, sitting, or negotiating stairs. He also reported frequent popping. On exam, the provider noted mild patellar crepitus, no laxity, range of motion from 0-110 degrees, and normal strength. VA records show that in June 2016 the Veteran was fitted for a patellar stabilization, j-lat style, knee brace for pain. During a March 2017 VA appointment the Veteran asked to add Naproxen to his medication list to treat right knee pain. VA medical imaging from April 2017 was unremarkable with no signs of degenerative changes. During the appointment, the Veteran characterized his right knee pain as 5-6/10 on a pain scale (with 10/10 being the worst imaginable pain). VA records show the in August 2017 the Veteran reported taking Naproxen to dull the pain in his knee; however, he would take tramadol when the pain became unbearable. The September 2017 VA examination report shows the examiner noted a diagnosis for right knee strain. Although the exam was not conducted during a flare, the Veteran described flares resulting in immobilizing pain, and reported functional loss after repetitive use over time. Range of motion testing showed flexion to 100 degrees and extension to 0 degrees. Pain was noted during flexion; however, the examiner noted that the pain did not result in functional loss. The examiner further observed no evidence of pain on either passive ROM testing or non-weight bearing testing. The Veteran was able to perform repetitive use testing with no further loss of motion. The examiner noted that the exam was not conducted after repeated use over time; however, he also noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength testing was normal. The right knee disability was not found manifested by ankylosis, a history of subluxation, or instability; however, histories of shin splints and meniscal tear were noted. palpation of the joint did not reveal objective evidence of pain, but it did reveal crepitus. The examiner concluded that the Veteran's right knee condition impacted his ability to perform occupational tasks such as standing, walking, or infrequent lifting. The December 2019 VA examination report shows the examiner noted a diagnosis for right knee degenerative arthritis. Although the exam was not conducted during a flare, the Veteran described flares resulting pain reaching 7-8/10, requiring him to apply pressure and not move for 5-10 minutes, occurring anywhere from three times a week to not at all, worse with weather changes and cold weather. The Veteran also reported functional loss in that he was not able to get down on his knees and could only squat briefly. Initial range of motion testing was all normal, with pain not causing functional loss noted on exam. There was no evidence of pain with weight bearing. Neither was additional loss of function noted after repetitive-use testing. Repetitive use over time and flares were noted to increase the Veteran's pain, significantly limiting functional ability. Muscle strength testing was normal. The right knee disability was not found manifested by conditions such muscle atrophy, ankylosis, subluxation, or instability; however, a history of meniscal tear was noted. Palpation of the joint did not reveal objective evidence of pain or crepitus. There was no objective evidence of pain on either passive range of motion testing or non-weight bearing. The examiner concluded that the Veteran's right knee condition impacted his ability to perform occupational tasks in that the knee pain and resulting hesitancy increased the amount of time it took the Veteran to perform a job, decreasing job performance. In December 2019 correspondence, the Veteran stated that his knee and back pain has progressed over the years. VA records from March 2020 show the Veteran required a replacement of a single-point cane (SPC) due to right knee pain. During a September 2020 VA appointment, the Veteran reported that issues with his right knee and lungs made physical activity difficult. The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to a disability rating greater than 10 percent for service-connected right knee strain. The Board concludes that the Veteran's disability picture, to include his lay statements, does not more nearly approximate the degree of disability required for a higher or separate rating. The Board notes here that separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. It will evaluate the Veteran's claim by analyzing the record evidence and comparing it to relevant DCs for evaluating knee disabilities. For example, ratings can be assigned 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, DCs 5258, 5259. In this case, while a meniscal tear was noted, the Veteran has not undergone semilunar cartilage removal under DC 5259. While the he reported frequent right knee popping in June 2016, this is the only mention of such symptoms in the record. DC 5258 contemplates "frequent" episodes of such symptoms. As such, these diagnostic codes are not for application. Ratings can be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, DCs 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of the knee. As such, those diagnostic codes are not for application. Ratings can be assigned for knee subluxation or instability under DC 5257. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including DC 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes. For the period beginning February 7, 2021, the Board will consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. In this case, neither the medical evidence nor the Veteran's statements indicate a recent or remote history of joint instability or subluxation. Thus, neither version of the rating criteria for DC 5257 is applicable. Range of motion testing was performed during VA examinations in June 2014, September 2017, and December 2019, and was at worst 75 degrees of flexion and 0 degrees of extension. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. At all of these VA examinations, the Veteran reported flares consisting of pain, usually after repetitive use, reaching 7-8/10, resulting in limited motion or immobilization. While given the opportunity to describe functional limitation related to the disability, the Veteran's statements do not show the requisite limitation of motion necessary for a higher or separate rating. Notably, while the June 2014 and December 2019 VA examiners tested the Veteran's range of motion after repetitive use over time, neither examiner observed changes in range of motion. Both examiners also noted that repetitive use resulted in pain that significantly limited the functional ability of the right knee. The September 2017 VA examiner, in contrast, did not conduct repetitive use testing. That examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability with repeated use over time. Treatment records do not show greater limitation of motion than the examination findings. Given the above, even when considering the impact of the Veteran's reported right knee pain on his physical activities, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, DC 5260, 5261. Regarding instability and subluxation of the knee, the Veteran does not allege and the record does not show that he experienced either instability or subluxation in the right knee during the appeal period. Notably, joint stability testing conducted in June 2014 and December 2019 revealed no instability. Given that the tests performed are generally recognized in the medical community as diagnostic for instability, the results are afforded high probative value. See 38 C.F.R. §§ 4.31, 4.71a, DC 5257. Regarding the version of DC 5257 in effect prior to February 7, 2021, a higher or separate rating is not warranted as the evidence is against a finding of the presence of slight lateral instability or recurrent subluxation. Regarding the version of DC 5257 in effect since February 7, 2021, a rating for recurrent subluxation or instability is not warranted because the evidence is against a finding of persistent instability. There was no right knee instability noted at the June 2014 and December 2019 examinations. This is strong evidence against a finding of persistent instability. Put another way, when multiple medical tests for instability fail to detect instability, constant instability is not present. A compensable rating also is not warranted for patellar instability. The evidence does not show surgical repair involving the patellofemoral complex (quadriceps tendon, the patella, and the patellar tendon), and, as noted, the evidence is against a finding of recurrent instability. While a 10 percent rating can be assigned for the knee joint if there is painful motion without compensable limitation of motion, the current 10 percent rating for the service-connected right knee strain already contemplates such painful motion. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 10 percent for his service-connected right knee strain. In summary, the Board finds that the criteria for a 10 percent rating for right knee strain have not been met. Service Connection 2. Entitlement to service connection for a right shoulder disability is denied. The Veteran seeks entitlement to service connection for a right shoulder disability. Specifically, he states that he tore his right rotator cuff in 1997 and that injury is the cause of his recent shoulder condition. The evidence of record includes the Veteran's service treatment records (STRs), which contain Reports of Medical Examination from October 1990, November 1992, and June 1993 that were silent as to shoulder conditions. The Board notes in this regard that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). STRs also show that in July 2000, the Veteran was diagnosed with mild spasm tendonitis or bursitis. The post-service evidence shows that, in June 2014, x-rays of the Veteran's right shoulder revealed normal joint spaces, normal bony structures, normal positioning of the humeral head, no dislocation, no signs of fracture, and no signs of rotator cuff tear. During a June 2014 VA examination, the examiner opined that the Veteran's right shoulder condition was less likely than not incurred in or caused by the claimed in-service injuries. The examiner reasoned that it was unlikely that disuse of the Veteran's right shoulder was related to a condition as remote as 1997, especially in the absence of abnormal x-ray findings. In August 2020 the Veteran underwent an additional VA examination for shoulder conditions, after which the examiner diagnosed him with a normal shoulder. During this examination, the Veteran reported flares with pain reaching 7/10, with increased discomfort, pain, and tingling, occurring at least weekly depending on activity, lasting 15-30 minutes or when activity causing flare is ceased. He reported functional loss in that he could not play sports, rake, or perform any repetitive motion, and he stated the overhead work he could do was limited. Initial range of motion testing revealed flexion and abduction to 130 degrees, and external and internal rotation to 60 degrees, with functional loss in that he refused to continue the range of motion due to pain he described as sharp, 8/10, in the anterior shoulder. The examiner noted no evidence of pain with weight bearing and no evidence of crepitus. Repetitive-use testing revealed no additional loss of function or range of motion after three repetitions. The examiner noted that pain, weakness, fatigability, or incoordination significantly limited the shoulder's functional ability with repeated use over time, and cited the range of motion testing results. Strength testing was normal. The examiner noted no other conditions such as muscle atrophy, ankylosis, instability, dislocation, rotator cuff condition, or arthritis. While there was objective evidence of pain on passive range of motion testing, there was no objective evidence of pain when the joint was used in non-weight bearing. The examiner concluded that the Veteran's shoulder condition impacted his ability to perform any type of occupation, observing that he was unemployed from previous factory work, reported missing up to one week of work in the last 12 months, and reported needing to limit overhead work while not being able to perform any repetitive motion. The August 2020 VA examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran's in-service right rotator cuff injury was diagnosed in 1997 and treated conservatively. The Veteran was later diagnosed with tendonitis in the right shoulder in July 2000, placed on profile, and referred to physical therapy. The examiner noted that, on the day of the exam, while during the exam he reported being unwilling to flex, abduct, or rotate any further due to pain, post-exam he was observed in the parking lot lifting the trunk and hood of his car, reaching into the trunk and inside of the car, opening and closing car doors, and putting sunglasses on top of his head with full range of motion of the bilateral arms and shoulders. No symptoms of pain were observed during the above-mentioned motions. Additionally, the right shoulder x-ray completed the day of the exam was normal. The examiner concluded that the Veteran does not have a right shoulder condition that is at least as likely as not incurred in or caused by the in-service tendonitis. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to service connection for a right shoulder disability. In this regard, the Board finds the findings of the June 2014 and April 2020 VA examiners the most probative of record. Throughout the period on appeal, the evidence does not show that the Veteran has been diagnosed with a right shoulder disability. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced a right shoulder disability 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). Although the Veteran has complained of right shoulder pain since his service separation, the record evidence does not show that he has been diagnosed as having a right shoulder disability which is related to active service. The Veteran's reported right shoulder pain also does not result in functional impairment such that service connection is warranted even under the low threshold of Saunders. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (finding that service connection is warranted for complaints of pain which result in functional impairment). In this regard, the June 2014 VA examination report noted a same-day x-ray of the Veteran's shoulder revealed a normal shoulder. Similarly, while the April 2020 VA examination report noted reduced range of motion during testing, observations of the Veteran immediately following the exam indicated a full range of motion with no evidence of pain. Based on this evidence, neither examiner found a current diagnosis for the Veteran's claimed right shoulder disability. In other words, the Board finds that the first and third Shedden requirements have not been met. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to service connection for a right shoulder disability. In summary, the Board finds that service connection for a right shoulder disability is not warranted. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Slomka, 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.