Citation Nr: 21040580
Decision Date: 07/06/21	Archive Date: 07/06/21

DOCKET NO. 15-19 890
DATE: July 6, 2021

ORDER

Entitlement to service connection for a thyroid disability, to include abnormal metabolism, is denied.

Entitlement to a rating in excess of 10 percent, prior to August 14, 2020, for a right knee disability, and in excess of 20 percent, thereafter, is denied.

Entitlement to a rating in excess of 10 percent, prior to August14, 2020, for a left knee disability, and in excess of 20 percent, thereafter, is denied.

FINDINGS OF FACT

1. The Veteran does not have a current diagnosis of a thyroid disability.

2. Prior to August 14, 2020, the Veteran's bilateral knee disability was manifested by subjective complaints of pain and objective findings of flexion in excess of 60 degrees, and normal extension to 0 degrees, even in contemplation of functional loss due to pain and other factors, or as a result of repetitive motion or flareups. There was no demonstration of ankylosis, lateral instability or recurrent subluxation, dislocated semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. 

3. Beginning August 14, 2020, the Veteran's bilateral knee osteoarthritis was manifested by flexion limited to 30 degrees and extension to 0 degrees when considering additional functional loss during repeated use over time or during flareups. There was no demonstration of ankylosis, lateral instability or recurrent subluxation, dislocated semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. 

CONCLUSIONS OF LAW

1. The criteria for service connection for a thyroid disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 

2. Prior to August 14, 2020, the criteria for a disability rating greater than 10 percent for a right knee disability are not met. 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 (DC) 5003-5260. 

3. Prior to August 14, 2020, the criteria for a disability rating greater than 10 percent for a left knee disability are not met. 38U.S.C. §1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003-5260. 

4. Beginning August 14, 2020, the criteria for a disability rating greater than 20 percent for a right knee disability are not met. 38 U.S.C. §1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003-5260. 

5. Beginning August 14, 2020, the criteria for a disability rating greater than 20 percent for a left knee disability are not met. 38 U.S.C. §1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003-5260. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1987 through January 2007.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from September 2013, May 2014, and August 2020 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

In November 2020, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board.

During the period on appeal, the Veteran's pending claim for entitlement to service connection for a sinus disability was granted in an April 2021 rating decision. The grant of service connection is considered a full grant of the benefits sought. As such, this claim is no longer before the Board.

Entitlement to service connection for a thyroid disability, to include abnormal metabolism, is denied.

The Veteran contends that her thyroid disability is related to service.

Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a).

A June 1990 service treatment record documented a slightly enlarged thyroid gland and a diagnosis of thyroiditis. No further treatment or follow up is noted in the service treatment records. Similarly, the Veteran's entrance and exit examinations did not record a diagnosis related to a thyroid disability.

In October 2013, a treatment note problem list documented laboratory findings of nonspecific abnormal results of a function study basal metabolism test. Otherwise, post-service treatment notes are likewise silent for treatment, complaints, or diagnoses related to a thyroid disability. Rather, treatment notes consistently document that the Veteran had no thyroid masses or enlargement. Her thyroid labs were also normal.

In December 2019, the Veteran was afforded a VA examination. The examiner determined that the Veteran did not have a thyroid diagnosis. The examiner explained that there were no findings, signs, or symptoms to support a diagnosis. There were also no diagnostic tests to show a thyroid abnormal. The Veteran's thyroid panel was normal. The examiner opined that it was less likely than not that any thyroid or metabolic disability manifested in or is otherwise etiologically related to the Veteran's active service. It was rationalized that based on medical records review and examination history, the Veteran has no diagnostic testing to confirm any thyroid disease process and her thyroid panel is normal.

Based on the aforementioned, the Board finds that service connection is not warranted for a thyroid disability.

Here, the record does not demonstrate that the Veteran has a current thyroid disability. Absent the required diagnosis of a current disability, a claim for service connection fails. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the Veteran is competent to report her subjective symptoms, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). 

While the Board acknowledges that the record shows a remote abnormal metabolic basal lab testing result, there is no diagnosis associated with such finding. Further, the remaining record does not demonstrate that the Veteran continued to experience abnormal labs. Symptoms or clinical findings, such as laboratory findings, are not disabilities within the law. 

The preponderance of the evidence is against finding service connection is warranted for a thyroid disability. The claim is denied.

Increased Rating

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1.

VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7.

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. 

Additionally, the Court of Appeals for Veterans Claims has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to "perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance." Id. (quoting 38 C.F.R. § 4.40 ). 

With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. See 38 C.F.R. § 4.45. 

Entitlement to a rating in excess of 10 percent, prior to August 14, 2020, for a right knee disability, and in excess of 20 percent thereafter, for a bilateral knee disability is denied.

The Veteran is currently in receipt of separate 10 percent ratings, prior to August 14, 2020, and separate 20 percent ratings, thereafter, for her right and left knee disabilities. Her bilateral knee disabilities are rated under DC 5003-5260.  She raised a claim for an increased rating in January 2013. 

Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 5003 evaluates degenerative arthritis. DC 5260 evaluates limitation of flexion of the knee. In this instance, the hyphenated code represents the Veteran's diagnoses of degenerative arthritis in the bilateral knees that is evaluated based on her resulting limitation of flexion.

Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. Although the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant DCs for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, and lateral instability and recurrent subluxation of the knee. A rating may also be assigned for meniscal impairment if there are non-overlapping symptoms. The Board will explore all possibilities in this case.

VA recently amended the regulations for rating knee disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5257 and 5262). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110  (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to her claim, except that an award based on the amended regulations may not be made effective before the effective date of the change.

The Board notes the only change to DC 5003 is a change in the title to the code, indicating that the criteria apply to all types of degenerative arthritis rather than just to post-traumatic arthritis. Diagnostic Code 5010 may now be rated as limitation of motion, as before, or as dislocation or other specified instability of the affected joint. Changes were not made to the rating criteria for DCs 5260 or 5261. The Board will apply the new criteria for the period beginning February 7, 2021, if the new criteria are more beneficial to the Veteran than the prior version of the regulation. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (regulations may not have retroactive effect unless their language specifies so).

Under DC 5003 for degenerative arthritis, when limitation of motion of the specific joint is noncompensable under the appropriate DC, a rating of 10 percent will be assigned for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. If there is no limitation of motion, ratings of 10 or 20 percent are available if there is x-ray evidence of two or more major joints or two or more minor joint groups, requiring occasional incapacitating exacerbations for a 20 percent rating. 38 C.F.R. § 4.71a.

Similarly, where limitation of motion is not compensable under the specific code for a joint, 38 C.F.R. § 4.59  provides for a minimum compensable rating for actually painful joints in conjunction with a diagnostic code based on limitation of motion, whether or not there is arthritis. Sowers v. McDonald, 27 Vet. App. 472, 479 (2016); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016).

Under both sets of criteria, VA considers normal knee range of motion to be from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate I.

Under DC 5260, a 10 percent rating is assigned for limitation of flexion of the leg to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. Id.

Under DC 5261, a 10 percent rating is assigned for limitation of extension of the leg to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. Id.

Where there is painful or limited motion with both flexion and extension, but the compensable criteria are not met for either flexion (DC 5260) or extension (DC 5261), only one minimum rating of 10 percent should be assigned. Separate ratings may not be assigned for painful or noncompensable limitation of motion using DC 5003 or section 4.59 in connection with 5260, and compensable limitation of extension under DC 5261. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Under the criteria effective prior to February 7, 2021, DC 5257 provides that recurrent subluxation or lateral instability will be assigned a 10 percent rating where it is mild, a 20 percent rating where it is moderate, or a maximum 30 percent rating where it is severe. 38 C.F.R. § 4.71a.

Under the criteria effective February 7, 2021, DC 5257 provides that recurrent subluxation or instability will be assigned 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 will be assigned if there is one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; 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 requires an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. Id.

There are also new criteria for patellar instability under DC 5257. A 10 percent rating is assigned 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 assigned 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. Id. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id. at Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. at Note (2).

Under DC 5258, a dislocated, or torn, semilunar cartilage or meniscus, with frequent episodes of "locking," pain, and effusion into the joint will be assigned a 20 percent rating. Id. DC 5259 addresses post-surgical meniscal conditions. Id.

Initially, the Board notes that with regards to both of her knees, there are several diagnostic codes not for application. For example, she has not been shown to have ankylosis (DC 5256), recurrent subluxation or lateral instability (DC 5257), impairment of the tibia and fibula (DC 5262), or genu recurvatum (DC 5263). Additionally, the Board notes that while the Veteran does have a semilunar cartilage disability (DCs 5258 and 5259), the criteria under DC 5258 are conjunctive, meaning that all criteria must be met to support a higher rating. See Melson v. Derwinski,1 Vet. App. 334 (1991). As discussed in greater detail below, the Veteran does not meet the criteria for a separate rating under DC 5258 and 5289 during the appellate period.

Turning to the relevant evidence on appeal, treatment notes in January 2013 document the Veteran's complaint of bilateral knee pain having a severity of 5 on a 10-point scale. There was no significant swelling, instability, or crepitus. 

The Veteran was afforded a VA examination for her bilateral knees in March 2013. She reported worsening pain in knees. She did not report flareups. Range of motion testing of the right knee revealed flexion to 120 degrees with pain at 120 degrees and extension to 0 degrees. Her left knee flexion was limited to 110 degrees with extension to 0. There was no objective evidence of pain with extension bilaterally. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of range of motion after three repetitions. Muscle strength testing was normal and there was no muscle atrophy or reduction in muscle strength. There was also no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was performed and was negative for any instability. There was no indication of recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. There was also no indication that the Veteran had or had ever had a meniscus condition.

In January 2015, the Veteran reported difficulty with her knees locking especially during weather changes. 

The Veteran was afforded another VA examination for her bilateral knee disability in December 2019. Here, the Veteran reported flareups that occurred daily and lasted 15 to 20 minutes. She also had constant dull pain. On examination, her right knee flexion was limited to 100 degrees and extension to 0 degrees. Her left knee had flexion to 105 degrees and extension to 0 degrees. There was pain with range of motion testing, tenderness with palpation, and crepitus bilaterally. Repetitive motion testing did not cause additional limitations in range of motion. Estimated limitation with repeated use over time and with flareups resulted in flexion of 95 degrees and extension to 0 degrees bilaterally. Muscle strength testing showed 4 of 5 muscle strength. There was no atrophy or ankylosis. Joint stability testing was normal. The examination documented medial tibial stress syndrome with shin splints. She had a meniscal condition bilaterally with frequent episodes of joint pain. There was also objective evidence of pain on passive range of motion and with non-weightbearing.

In an August 2020 VA examination, the Veteran again endorsed daily flareups. On examination, her right knee flexion was to 90 degrees with extension to 0 degrees. Her left knee flexion was to 75 degrees with extension to 0 degrees. There was no evidence of pain with weightbearing or crepitus bilaterally. The estimated functional loss with repeated use over time and during flareups would result in flexion in 30 and extension to 0 degrees in the right knee and flexion of 20 degrees and extension to 0 degrees in the left knee. Muscle strength was normal. There was no atrophy or ankylosis. Joint stability testing was normal. Medial tibial stress syndrome was not documented. There was a meniscal condition causing frequent episodes of locking and joint pain.

Based on the aforementioned, the Board findings that separate ratings in excess of 10 percent, prior to August 14, 2020, and in excess of 20 percent, thereafter, for the bilateral knee disabilities are not warranted.

Prior to August 14, 2020, the Veteran is a assigned a 10 percent rating under degenerative arthritis in two major joints with noncompensable limitation of motion under DC 5003. She was not prescribed bed rest for either knee disability; consequently, a 20 percent rating is not warranted under 38 C.F.R. § 4.71 (a), DC 5003. Furthermore, the Veteran did not demonstrate left or right knee flexion limited to 30 degrees or extension limited to 15 degrees; consequently, increased ratings are not warranted under 38 C.F.R. § 4.71  (a), DCs 5260 or 5261. Rather, the Veteran had flexion in excess of 75 degrees, even when considering additional limitations during repeated use over time and during flareups. Pursuant to DC 5260, a 20 percent evaluation is only warranted if flexion is limited to 30 degrees or less. As such a disability rating greater than 10 percent is not warranted for the Veteran's bilateral knee disability pursuant to DC 5003-5260. 

Beginning August 14, 2020, the Veteran had estimated limited flexion limited to 30 degrees in her right knee and 20 degrees in her left knee during flareups and with repeated use over time. Such findings are consistent with a rating of 20 percent. However, a higher rating is not warranted unless the record demonstrates limitation of flexion to 15 degrees or less. The record does not demonstrate that the Veteran's bilateral knee disability has caused limitation of flexion that warrants a higher rating. Furthermore, a separate compensable rating is not warranted under DC 5261 as the Veteran had extension to 0 degrees throughout the period on appeal.

The Board accepts that the Veteran has functional impairment, pain, and pain on motion) and finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher rating at any point during the period on appeal. The Board finds that the medical evidence provided by the VA examiners of record is highly probative, as it was provided by competent medical clinicians and based on objective testing.

With regard to DC 5258 and 5259, the Board considered whether a separate rating was warranted. However, DC 5258 and 5289 requires the showing of a meniscus condition resulting in locking, pain, and effusion. VA examinations in January 2019 and August 2020 do not show that the Veteran has all three requisite symptoms. Rather, only frequent joint pain and locking was demonstrated. As such, a separate rating is not warranted. 

Likewise, the Board has considered whether a separate rating is warranted under DC 5262. The December 2019 VA examination documented the presence of tibia or fibula impairment requiring shin splints. After a review of the Veteran's treatment notes and arguments of record, the Board finds that this condition was documented in error, as treatments do not document a diagnosis related to tibia or fibula impairment or use of shin splints. Further, the Veteran, nor her representative has not alleged that the Veteran has such conditions. Thus, a separate rating is not warranted under DC 5262.

 

 

Bethany L. Buck

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N.B. Mmeje, 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.