Citation Nr: 22012113 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-35 379 DATE: March 2, 2022 ORDER Entitlement to an initial rating in excess of 10 percent prior to January 6, 2016 for service-connected left-knee disability based on limitation of flexion is denied. Entitlement to a rating of 30 percent, but no higher, since January 6, 2016 for the service-connected left-knee patellofemoral pain syndrome is granted. For the entire period on appeal, a separate rating of 10 percent for instability of the left knee is granted. Entitlement to an initial compensable rating prior to July 27, 2015 for hypertension is denied. Since July 27, 2015, a rating of 10 percent, but no higher, for hypertension is granted. FINDINGS OF FACT 1. The objective medical evidence shows prior to January 6, 2016 left-knee patellofemoral pain syndrome did not more closely approximate degenerative arthritis, with x-ray evidence showing involvement of 2 or more major joints, or 2 or more minor joint groups, with occasional incapacitating exacerbations; flexion limited to less than 45 degrees; extension limited to more than 10 degrees. 2. Since January 6, 2016, left-knee patellofemoral pain syndrome more closely approximated left-knee ankylosis at a favorable angle in full extension or in slight flexion between 0 and 10 degrees. 3. For the entire period on appeal, the Veteran's left knee disability is manifested by slight instability. 4. Prior to July 27, 2015, the Veteran's hypertension is not manifested by diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more requiring continuous medication for control, diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more, diastolic pressure predominantly 120 or more or diastolic pressure predominantly 130 or more. 5. Since July 27, 2015, the hypertension is manifested by diastolic pressure predominantly 100 or more. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to January 6, 2016 for service-connected left-knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260-5019. 2. Since January 6, 2016, the criteria are met for a rating of 30 percent, but no higher, for the service-connected left-knee disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256. 3. The criteria for an initial compensable rating prior to July 27, 2015 for service-connected hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6. 4.104, Diagnostic Code 7101. 4. Since July 27, 2015, the criteria for a rating of 10 percent for hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6. 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1984 to September 2005. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the relevant overall temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as "pyramiding," must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury, so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14. 1. Left knee disability A November 2005 rating decision granted service connection for left-knee patellofemoral pain syndrome at a 10 percent rating, effective October 1, 2005. The Veteran did not appeal that decision, but later sought a higher initial disability rating by filing a claim received by VA on July 31, 2012. That date of claim commences the current appeal period. The Board notes the Veteran underwent an August 2021 private left-knee arthroscopy with partial medial meniscectomy and knee injection, for which he was granted a temporary total rating (100 percent) following the procedure for convalescence from August 11, 2021 through September 30, 2021. As such, for that brief period the issue of a higher initial disability rating is considered moot. The rating was returned to 10 percent from October 1, 2021. The Veteran's left knee disability, diagnosed as left-knee patellofemoral pain syndrome, is rated under Diagnostic Code 5260-5019 for most of the appeals period. It is currently rated under Diagnostic Code 5003-5260. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27 (2020). In this case, the Agency of Original Jurisdiction (AOJ) originally assigned a hyphenated diagnostic code to recognize left-knee limitation of flexion (Diagnostic Code 5260) as the Veteran's underlying diagnosis and Diagnostic Code 5019 for bursitis as providing the relevant rating criteria. See 38 C.F.R. § 4.20. Put more simply, the Veteran's left knee has been diagnosed with a form of limitation of motion, but it is rated under the code criteria for the resulting arthritis. Subsequently, degenerative arthritis (Diagnostic Code 5003) became the underlying diagnosis and Diagnostic Code 5260 for limitation of flexion now provides the relevant rating criteria. In either case, Diagnostic Code 5003 remains applicable, as Diagnostic Code 5019 directs the rater or adjudicator to rate bursitis as degenerative arthritis under Diagnostic Code 5003. At the outset, the Board will note that some of the schedular ratings for knee disorders, as well those for some forms of arthritis, were revised, effective February 7, 2021. The revisions will be applied only to those examinations and treatment records dated on or after February 7, 2021 and the Board will address the revisions to the diagnostic codes when appropriate to do so. In the period prior to February 7, 2021, Diagnostic Code 5003 provides, when established by x-ray findings, degenerative arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion to be "combined," not added together, under Diagnostic Code 5003. See 38 C.F.R. § 4.25. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a rating of 10 percent will be assigned with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. The above ratings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The knee is considered 1 major joint. Diagnostic Code 5260 provides a 10 percent rating when flexion is limited to 45 degrees, 20 percent when limited to 30 degrees and the maximum 30 percent rating will be assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Additionally, the Board will also look to closely related or analogous diagnostic codes pertaining to the knee, for the periods prior to and since February 7, 2021, as they affect limitation of motion to determine if a higher evaluation might be available. When evaluating musculoskeletal disabilities, VA, in addition to applying the schedular criteria, may assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). Additionally, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, actually painful, unstable or malaligned joints, due to a healed injury, are recognized as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see also Burton v. Shinseki at 5 (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Turning to the record, the Veteran was afforded a VA examination for knee and lower-leg conditions in June 2013, in which the examiner stated a 1990 diagnosis of retropatellar arthrosis and further diagnosed medial gonarthrosis. He noted the Veteran's report of left-knee pain after walking, climbing stairs or lifting. On range-of-motion testing, left-knee flexion ended at 95 degrees and extension at 0 degrees. No measurements were given to indicate at what degree painful motion commenced. The examiner found the Veteran could perform left-knee repetitive use for 3 repetitions and found post-test flexion ended at 120 degrees and extension at 0 degrees. The examiner further found there were both additional limitation in range of motion and functional loss or impairment of the knee and lower leg, being less movement than normal, pain on movement, swelling, disturbance of location, interference with sitting, standing and weight-bearing. Additionally, pain could significantly limit functional ability during flare ups or when the joint is used repeatedly over a period of time. The examiner noted the Veteran's report of flare-ups causing pain and swelling, occurring twice a week, lasting for some hours, and pain prevented walking unless using a cane or crutch. The examiner found objective evidence of left-knee crepitus. He did not find meniscal conditions, surgical procedures for a meniscal condition or residuals of a meniscectomy. He noted the Veteran made regular use of a brace(s) and crutches. He noted available imaging studies documented degenerative or traumatic arthritis, but showed no evidence of patellar subluxation. He found the left-knee disorder impacted the Veteran's ability to work as restricting lifting to no more than 15 kg, restricting ascending stairs, he could walk up to 100 meters, he could walk up to 1 km with pauses during an 8-hour day, and his sitting and standing at 1 time or for the entire day would be unlimited, if he can change positions for sitting, walking or standing. A January 2016 examiner diagnosed bilateral knee-joint ankylosis, left-knee patellofemoral pain syndrome and left-knee walking difficulty. She noted the Veteran's report of left-knee pain when moving a certain way. The Veteran further reported functional loss due to both right and left-knee disorders included not being able to stand for 35 minutes, can walk for 40 minutes (less than a mile) at a slow pace and sometimes he requires a cane when walking. He added he cannot kneel, squat or "rush." Range-of-motion testing showed left-knee flexion ending at 82 degrees and extension at -8 degrees, indicating hyper-extension. The Veteran was able to perform repetitive-use testing, with left-knee flexion ending at 78 degrees and extension at -15 degrees. There was pain during repetitive-use testing, as well as in weight-bearing or in non-weight-bearing use. The Veteran reported flare-ups as coming with prolonged standing or sitting, with more pain and joint stiffness. The examiner found pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time and estimated flexion ending at 79 degrees and extension at -14 degrees. Further contributing factors of disability were left-knee reduced movement and left-knee swelling. The examiner found no meniscal conditions or left-knee meniscus surgeries. She noted the Veteran's constant use of a brace and occasional use of a cane. She further noted January 2016 left-knee x-rays show no significant signs of left-knee osteoarthritis. Regarding the functional impact of symptoms on the Veteran's ability to work, she repeated the Veteran's description, as reported to her above at the beginning of her examination report. An October 2018 VA examination shows a 1987 left-knee diagnosis of patellofemoral pain syndrome. The examiner noted the Veteran's reports of injuring both knees in an active-service parachute jump. The Veteran added the left knee "gives out" on occasion, requiring use of a knee brace. Range of motion measurements showed left-knee flexion ending at 80 degrees and extension ending at 0 degrees. There was evidence of pain with weight-bearing and non-weight-bearing. The Veteran could perform repetitive-use testing with 3 repetitions. During repeated use over time, the Veteran reported all weight-bearing activities are impaired. The examiner found pain, fatigue and lack of endurance cause functional loss with repeated use over a period of time, with range of motion for left-knee flexion estimated to be reduced to ending at 85 degrees and extension remaining at 0 degrees. The Veteran reported during flare-ups for both knees pain worsens with increased stiffness. The examiner in turn estimated during flare-ups flexion was reduced to 85 degrees and extension remained at 0. The examiner found no meniscal conditions or left-knee meniscus surgeries and noted the Veteran's use of a brace and cane as being regular. She noted available imaging studies documented degenerative or traumatic arthritis. She found functional impact affecting work ability to be all weight-bearing activities are impaired. The Board will briefly note here that, although left-knee joint stability findings were normal in the October 2018 examination, a June 2020 addendum to the October 2018 examination states "left-knee instability" is not an unrelated condition to patellofemoral pain syndrome, but rather is a progression of that disorder. Later in June 2020, a Supplemental Statement of the Case (SSOC) granted a separate 10 percent rating for left-knee instability. The Veteran underwent a September 2021 VA examination, in which the examiner diagnosed left-knee osteoarthritis. Additionally, she stated a 1987 diagnosis of residuals of left-knee scope, as well as diagnosing left-knee instability (as stated above, now a separately rated disorder). Range-of-motion testing showed left-knee flexion ending at 70 degrees and extension at 0. Passive range of motion measurements were the same as active range of motion. There was evidence of pain on weight-bearing, active motion, passive motion, and pain caused functional loss due to pain and stiffness. The examiner found on examination no crepitus. Although able to complete 3 repetitions, the Veteran's left-knee flexion was further limited to ending at 60 degrees and extension at 0. The Veteran reported difficulty with prolong walking during repeated use over time. The examiner found functional loss with repeated use over time due to pain and lack of endurance, with range of motion for left-knee flexion estimated to be reduced to ending at 50 degrees and extension remaining at 0. The Veteran reported flare-ups of the left knee occur weekly, they are severe, lasting 1-2 days, they are precipitated by walking for a long period, and they are alleviated by resting. The examiner estimated during flare-ups flexion was reduced to ending at 40 degrees and extension remained at 0. The examiner found the Veteran has a past or current meniscal tear, noting from the record an August 2011 scope with meniscectomy, with residual signs or symptoms, such has pain, scarring and reduced range of motion. She noted the Veteran's use of a brace as regular and his use of a walker as occasional. She further noted available imaging studies document degenerative or traumatic arthritis. She found functional impact to be difficulty with bending, prolonged standing or walking and climbing stairs Based on the foregoing findings in the VA examinations, an increased rating under Diagnostic Code 5260 for limitation of flexion is not warranted. As stated above, that diagnostic code provides a 10 percent rating when flexion is limited to 45 degrees, 20 percent when limited to 30 degrees and the maximum 30 percent rating will be assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. As noted above, throughout the entire appeal period, left-knee flexion was recorded only once as ending at lower than 45 degrees. The September 2021 examiner found during flare-ups flexion range of motion was estimated to end at 40 degrees, allowing for a 10 rating under Diagnostic Code 5260, which is already in effect. Additionally, as left-knee extension indicates motion obverse to flexion, Diagnostic Code 5261 provides a 10 percent when extension is limited to 10 degrees, when limited to 15 degrees a 20 percent rating will be assigned, when limited to 20 degrees a 30 percent rating is available, a 40 percent rating is warranted for limitation at 30 degrees, and when extension limited to 45 degrees a 50 percent rating will be assigned. 38 C.F.R.§4.71a, Diagnostic Code 5261. However, the competent medical evidence of record shows the Veteran had no limitation of left-knee extension, in fact, there was a showing of hyperextension in the January 2016 examination. There is no basis for a higher rating under Diagnostic Code 5261. Looking to other closely related or analogous diagnostic codes addressing limitation of motion, Diagnostic Code 5256 provides a 30 percent rating for favorable angle ankylosis in full extension or in slight flexion between 0 and 10 degrees; a 40 percent rating for ankylosis in flexion between 10 and 20 degrees; a 50 percent rating for ankylosis in flexion between 20 and 45 degrees; and a 60 percent rating for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. See 38 C.F.R. § 4.71a, Diagnostic Code 5256. Although the June 2013 examiner offered no findings for ankylosis, the January 2016 examiner found left-side ankylosis at a "favorable angle in full extension or in slight flexion between 0 and 10 degrees" (recorded at 10 degrees). Therefore, the Board finds this finding warrants an evaluation of 30 percent under the diagnostic code from the date of this examination, January 6, 2016. Diagnostic Code 5257 provides ratings for evidence of recurrent subluxation or lateral instability of the knee. The pre-revision version provides a 10 percent rating with evidence of slight recurrent subluxation or lateral instability of the knee, a 20 percent rating with moderate evidence of recurrent subluxation or lateral instability and a 30 percent rating will be assigned when such evidence of recurrent subluxation or lateral instability is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board will note at this point that descriptive words, such as "slight," "moderate" and "severe," as used in Diagnostic Code 5257, are not defined in the Rating Schedule. Therefore, rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. In the June 2013 examination, in each of 3 joint stability tests, results for left knee were normal. The examiner also found no evidence or history of recurrent patellar subluxation/dislocation. The January 2016 examiner, although finding recurrent effusions, as the left knee swelled with exertion, found no history of recurrent left-knee subluxation or history of lateral instability. In each of 4 joint stability tests, the results were normal. Although in the October 2018 examination, the Veteran reported frequent left-knee swelling, all joint stability tests showed normal results. As stated, Diagnostic Code 5257 was extensively revised, effective February 7, 2021, and consequently, the revised version would also be applicable to the findings made in the September 2021 VA examination. The revised version now provides for recurrent knee subluxation or instability a 10-percent rating for 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 available for 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 (e.g., cane(s), crutch(es), walker) for ambulation. (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Assignment of 30 percent is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. If there is patellar instability, 10 percent is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) which does not require a prescription from a medical provider for a brace, cane or walker. 20 percent is available 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. 30 percent will be assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair which requires a prescription by a medical provider for a brace and either a cane or a walker. The following notes to the diagnostic code provide further explanation: Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components which 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). Although 3 of 4 joint stability test were normal in the September 2021 examination, the left-knee medial-instability test result showed 1+ (0-5mm), indicating to the examiner "slight" left-knee recurrent subluxation or persistent instability. She further found left-knee recurrent patellar instability. Although the examiner also found for both findings the Veteran does not request a prescription by a medical provider for any assistive device for ambulation, the Board, based on its review of the record, notes several instances indicating the Veteran requested VA to provide assistive devices. Specifically, in August 2012 and December 2015 treatment notes, while still residing in Germany after his 2005 retirement from military service, the Veteran requested a hinged knee brace, without specifying which knee, which was fitted and issued to him at a United States Army medical facility in Germany, presumably with a prescription. Additionally, an October 2017 treatment note shows an order put in for a 4-point cane. A March 2019 VA occupational therapy note shows the Veteran being instructed in the use of a knee brace. In a January 2020 follow-up visit to VA, the treatment provider noted the Veteran's report of his knees being "a little bit unstable" and his request for articulated knee braces for stability and the treatment provider further noting "we will request these from[] Physical Therapy today." The same treatment provider in June 2020 noted the specific knee brace for the support the Veteran needs has to be ordered. Although the above treatment notes do not identify which knee requires a brace, a September 2020 VA rehabilitation medication clinic note shows the treatment provider noted the Veteran's request for "bilateral" knee braces for "stability," with a "referral sent to P.T. [the Physical Therapy department] to evaluate him for stock knee braces." From this, the Board can reasonably conclude prescriptions were issued for the requested braces and likely remain outstanding. As stated, the examiner found both "slight" left-knee recurrent subluxation or persistent instability and recurrent patellar instability. Moreover, the record indicates the Veteran in August 2021 underwent a left-knee arthroscopy with partial medial meniscectomy and knee injection. As stated earlier in this decision, in August 2021, the Veteran underwent a private left-knee arthroscopy with partial medial meniscectomy and knee injection. In the August 2021 Operative Report for the procedure, the report states under "Description of the Procedure" the scoping first revealed a medial meniscus tear. The report continued, "The medial meniscus tear was then debrided with a combination of shaver and meniscal biters until the meniscus was found to be stabled [sic]. We then turned our attention to the lateral compartment which demonstrated a well maintained compartment. The meniscus was stable upon probing. The equipment was removed, and the knee drained. The knee was closed with 3-0 nylon." The Board understands the foregoing to state loose material of some sort in fact was removed or cleaned out (debrided) from the meniscus tear space, the meniscus was otherwise found to be stable, the adjacent compartment was well-maintained, and on final probing the meniscus itself was stable. In short, there was no procedure which addressed patellofemoral components which contribute to an underlying instability, therefore, no surgical repair of a component or components. Nevertheless, in resolving all reasonable doubt in the Veteran's favor, the Board finds that a separate rating for slight instability of the left knee disability is warranted for the entire period on appeal, pursuant to the regulations in effect prior to February 7, 2021. Of other related knee codes offering ratings above 10 percent, the June 2013, January 2016, October 2018, and September 2021 examiners made no findings for dislocated semilunar cartilage, with frequent episodes of "locking," pain and effusion into the joint (Diagnostic Code 5258) or for any type of left-knee tibial or fibular impairment (Diagnostic Code 5262). Additionally, as each knee is 1 major joint, the higher evaluation of 20 percent under Diagnostic Code 5003 is not available for degenerative arthritis unless the evidence shows x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. The Board notes, based on the Veteran's reports, symptoms of functional loss due left-knee patellofemoral pain syndrome were noted by the VA examiners, as well as changes affecting normal working movements, which also were sufficiently reviewed, included in the examination findings and considered for the disability evaluations now assigned. That rating for left knee compensates the Veteran for his limited motion and functional loss, including due to pain. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. at 204-07; Mitchell v. Shinseki, 25 Vet. App. at 37; Burton v. Shinseki, 25 Vet. App. at 5. The Board has carefully considered the Veteran's lay evidence submitted in the appeal period of his statement accompanying the August 2014 Notice of Disagreement and the statement accompanying his July 2017 Veterans Appeals Form 9, as well as his reports to treatment providers and examiners as they appear throughout the record. The Board understands lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there would be no reason otherwise to doubt his credibility. Nonetheless, the Veteran's lay evidence in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The Veteran's essential contention in his statements and reports is left-knee pain has worsened over the years, it limits his ability to walk and exercise and this in turn affects some of his other disorders. The Board has addressed the Veteran's symptoms above in the discussion of findings in no less than 4 VA examinations. The Veteran has been compensated for pain and in the period from January 6, 2016 through to October 19, 2018 the Board has found the Veteran's disability evaluation is to be increased to 30 percent for ankylosis. However, findings on medical examination after that period no longer satisfy the rating criteria for such an increase. Moreover, the Veteran's lay evidence providing what he is competent to observe and report, for the reasons stated, does not support the assignment of separate ratings and for higher ratings under the criteria of other applicable related or analogous diagnostic codes. The Board therefore assigns greater probative weight to the findings of the several VA examiners. They are medical professionals who examined and tested the Veteran during in-person sessions, 3 of whom thoroughly reviewed the Veteran's medical history and record and the findings of all examiners, for the reasons discussed above, therefore are adequate for VA rating purposes. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). Based on the findings above, the Board is assigning a separate 10 percent rating for instability for the entire period on appeal, and an increased rating of 30 percent, effective from January 6, 2016. 2. Hypertension A November 2005 rating decision granted service connection for hypertension at noncompensable disability evaluation, effective October 1, 2005. The Veteran did not appeal that decision, but later sought a higher initial disability rating by filing a claim received by VA on July 31, 2012. An April 2020 rating decision awarded a 10 percent rating, effective October 19, 2018. The Veteran's service-connected hypertension is rated under Diagnostic Code 7101, which pertains to hypertensive vascular disease (hypertension and isolated systolic hypertension). Under that diagnostic code, a 10 percent rating is assigned for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or where an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure predominantly 120 or more. The maximum rating, 60 percent, is assigned for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Appended to the diagnostic code is Note (1), stating in part, "Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days." Turning to the record, the Veteran underwent a June 2013 VA examination for hypertension, in which the examiner stated a 2005 diagnosis of that disorder. He noted the Veteran's report of requiring regular daily medication since his initial diagnosis. Blood pressure readings, all recorded on that day's examination showed 140/95, 140/90 and 143/98. The examiner found hypertension or isolated systolic hypertension impacts the Veteran's ability to work as not being able to do heavy lifting beyond 15 kg, tolerate stress and undergo "changing-shifts" when working. A July 2015 Disability Benefits Questionnaire (DBQ) for hypertension, conducted by Dr. C.M.T., a physician at the United States Army medical facility in Germany at which the Veteran received treatment, shows the same diagnosis as in the June 2013 examination. She noted from the Veteran's report diastolic blood pressure elevation is often elevated to greater than 100, with varying diastolic readings from 69 116, most of which are less than 100, usually in the 80s 90s. Dr. C.M.T. noted blood pressure readings, 2 of which were taken on different days in February 2015 and a third taken that day in July 2015 as 146/96, 138/77 and 183/116. She noted several non-service-connected disorders associated or possibly secondary to uncontrolled hypertension. Dr. C.M.T. further found the Veteran's hypertension or isolated systolic hypertension does not impact his ability to work. In an October 2018 VA examination, the examiner diagnosed hypertension. She noted the Veteran's reported medical history of blood pressure having been difficult to control, it has required multiple medication changes, but is better controlled with current treatment. She stated blood pressure readings, each taken that day, as 170/100, 176/98 and 164/104, with an average of 170/101. This examiner found hypertension impacts the Veteran ability to work, as his fatigue interferes with his ability to participate in any strenuous activities. The Board finds that a rating of 10 percent is warranted from July 27, 2015, the first indication that the Veteran's diastolic blood pressure was predominately 100 or more. See July 2015 Private DBQ. However, a compensable initial disability rating is not warranted prior to July 27, 2015 because the evidence does not show the Veteran has diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. For example, the records show blood pressure readings of 160/97 in May 2013, 148/108 in June 2013, 105/106 in June 2013, 140/95, 140/90 and 143/98 in the June 2013 VA examination, 161/104 in August 2013, 140-150/90-100 in October 2013 (reported home readings, exact number unknown and therefore counted as 1 reading)), 157/90 in October 2013, 154/99 in January 2014, 161/103 and 169/99 in May 2014, 169/99 in June 2014, 139/92 in August 2014, 145/96 in February 2015. As to whether a rating higher than 10 percent since July 27, 2015 is warranted, the Board finds the evidence does not support this assertion. Here, blood pressure readings in this stage of the appeal period show 197/121 and 180/135 in September 2019 and 170/100, 176/98 and 164/104 on the day of the October 2018 VA examination, 172/112 and later 150/113 on the same day in January 2020, 170/120+ and a second reading at 140-50/80 on the same day in June 2020, 138/85 in July 2020, 167/96 in September 2020, 147/99 in December 2020, 125/81 and a second reading at 120/70 on the same day in January 2021, 133/87 in August 2021, and 138/92, a second reading at 133/87 and again at 110/76 in August 2021. As set forth above, a 20 percent rating is assigned for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure predominantly 120 or more. The maximum rating, 60 percent, is assigned for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Five of the above 15 readings show diastolic pressure of 110 or more, but once again, one third of the readings does not represent "predominantly 110 or more." There are no systolic readings at 200. The higher ratings under the diagnostic code each require ever higher predominating readings. As such the medical evidence does not support any higher rating than the 10 percent already assigned in this stage of the appeal period. The Veteran's contends in his statement accompanying the August 2014 Notice of Disagreement, the statement accompanying his July 2017 Veterans Appeals Form 9 and his reports to treatment providers and examiners that the treatment he currently receives does not effectively manage his condition, despite frequent adjustments to treatment. The Veteran is competent to report what he sees and knows from the effects of his treatment. However, the adverse effects of what the Veteran states is not entirely effective treatment is not reflected in findings made on examination and during treatment to a degree which satisfy the rating criteria for higher evaluations, as shown by the record discussed at length above. As such, the Board assigns greater probative weight to the findings of the June 2013 and October 2018 VA examiners, to Dr. C.M.T. in her July 2015 examination and to the numerous VA treatment providers who amassed findings during the Veteran's treatment. They conducted in-person examinations of the Veteran and thoroughly reviewed the evidence of record. Therefore, their findings are adequate for VA rating purposes. However, as set forth above, Diagnostic Code 7101 also provides a compensable rating at 10 percent when an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. This refers to blood pressure readings taken before a veteran began medication to control hypertension. As such the Board will look the Veteran's blood pressure readings prior to the period on appeal, to include during active service. Wilson v. McDonough, No. 19-6020 (2021). Of the approximately 180 blood pressure readings recorded during the period of active service from November 1984 to September 2005, only 12 show a diastolic reading of 100 or more. From this, the Board finds the Veteran's history of diastolic pressure was not predominantly 100 or more requiring continuous medication for control, regardless of the Veteran's report to the June 2013 examiner of requiring regular daily medication since his initial diagnosis. For these reasons, and based on the evidence of record, both medical and lay, the Board finds in the period prior to July 27, 2015, an absence of an approximate balance of evidence favoring the claim for an initial compensable disability evaluation for service-connected hypertension and thereafter an absence of an approximate balance of evidence favoring the claim for an increased evaluation in excess of 10 percent. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As there is no approximate balance of the evidence for the claims, the doctrine is not applicable, and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED