Citation Nr: 22013772 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 10-16 964 DATE: March 10, 2022 ORDER Entitlement to a rating in excess of 10 percent for right knee limitation of motion from August 24, 2016, is denied. Entitlement to a rating in excess of 10 percent for right elbow lateral epicondylitis is denied. Entitlement to a rating in excess of 10 percent for left elbow lateral epicondylitis is denied. FINDINGS OF FACT 1. From August 24, 2016, Veteran's right knee disability is not manifested by objective evidence of flexion limited to 30 degrees or less; extension limited to 15 degrees or more; recurrent subluxation or objective evidence of slight lateral instability; dislocated semilunar cartilage with frequent locking, pain, or effusion into the joint; or impairment of the tibia or fibula. 2. The Veteran's lateral epicondylitis of the right elbow is not manifested by limitation of flexion of less than 100 degrees or limitation of extension greater than 45 degrees. 3. The Veteran's lateral epicondylitis of the left elbow is not manifested by limitation of flexion of less than 100 degrees or limitation of extension greater than 45 degrees. 4. The Veteran failed to appear at the VA examinations for his knee and elbow disabilities in December 2020 and failed to provide good cause for his absence. These VA examinations were necessary to decide the increased rating claims. CONCLUSIONS OF LAW 1. From August 24, 2016, the criteria for a rating in excess of 10 percent for right knee status post arthroscopy torn medial meniscus are not met. 38 U.S.C. § 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260. 2. The criteria for an initial rating in excess of 10 percent for lateral epicondylitis of the right elbow have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5024. 3. The criteria for an initial rating in excess of 10 percent for lateral epicondylitis of the left elbow have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5024. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army National Guard as an enlisted soldier from November 1992 to May 1993, and as a commissioned officer from September 1995 to April 1996, October 2001 to May 2002, and July 2005 to March 2009. The matters on appeal were denied by the Board of Veterans' Appeals (Board) in a September 2017 decision that was subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2019 the Court, pursuant to a Joint Motion for Partial Remand (JMPR), in pertinent part, vacated the Board's decision with respect to the issues on appeal and remanded these matters to the Board for readjudication. The Board, in turn, remanded the issues on appeal to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) in May 2019 and July 2020 for additional development. The case has since been returned to the Board for appellate review. During the pendency of the appeal, an April 2020 rating decision assigned a 10 percent evaluation for the Veteran's right and left elbow disabilities for the entire period on appeal. As these ratings are not the maximum allowable, the issues remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's 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 practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Failure to Report for Examinations Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160(b). When a Veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the Veteran lacked good cause to miss the scheduled examination. See 38 C.F.R. § 3.655 (a); Turk v. Peake, 21 Vet. App. 565, 569 (2008). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. In this case, an examination was necessary to establish entitlement to the benefits sought because the examination was necessary to address the crucial question of the current manifestations of the Veteran's service-connected elbow disabilities and right knee disability. The Veteran was scheduled for VA examinations in February 2020 and December 2020, but he did not appear. As explained in more detail below, when contacted by VA to schedule another examination, the Veteran reported that he would not attend. Given the AOJ actions and the Veteran's choice not to undergo a December 2020 examination, the Board finds that VA has no remaining duty with regard to a medical examination and opinion in conjunction with this claim. Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). 1. Entitlement to a rating in excess of 10 percent for right knee limitation of motion from August 24, 2016 The Veteran's right knee is currently assigned a 10 percent rating under Diagnostic Code 5260 for limited flexion from August 24, 2016. 38 C.F.R. § 4.71a. Diagnostic Code 5260 concerns limitation of leg flexion. A noncompensable evaluation is assigned where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. Finally, a 30 percent rating applies where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5261, pertaining to limitation of leg extension, is also of relevance here. Under that Code section, a noncompensable evaluation is assigned where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. Finally, a 50 percent evaluation is warranted where extension is limited to 45 degrees. Id. As mentioned above, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Diagnostic Codes 5258, 5259, 5261 and 5260 were not changed under the amended criteria. Prior to the regulatory change, Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, or a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Id. Under the amended criteria, DC 5257 (knee, other impairment of) indicates that recurrent subluxation or instability should be rated as follows: 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 warrants a 30 percent rating. 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 warrants a 20 percent rating. 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 warrants a 10 percent rating. 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 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). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Precedent opinions of the VA's General Counsel have held that dual ratings may be given for a knee disorder, with one rating for instability (Diagnostic Code 5257) and one rating for arthritis with limitation of motion (Diagnostic Codes 5003 and 5010). VAOPGCPREC 9-98 (63 Fed. Reg. 56,704 (1998)) and 23-97 (62 Fed. Reg. 63,604 (1997)). Another such opinion held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (69 Fed. Reg. 59988 (2004)). On VA examination of the right knee in August 2016, the Veteran reported having aching right kneecap pain. He stated that he had flare-ups of increased right knee pain with increased squatting and kneeling. Forward flexion of the knee was from 0 to 140 degrees. Extension was from 140 degrees to 0 degrees. There was pain on flexion. There was evidence of pain with weight bearing. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions. There was no additional loss of function or loss of range of motion after three repetitions. Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. Flexion was from 0 to 140 degrees and extension was from 140 to 0 degrees. There was disturbance of locomotion and interference with sitting due to pain. There was no ankylosis of the right knee. Joint stability tests were normal. The Veteran did not have recurrent patellar dislocation, "shin splints," stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. Right knee x-rays showed medial compartment joint space narrowing and confirmed a diagnosis of osteoarthritis. December 2017 VA treatment reflects that the Veteran had full range of motion in his knees. In his March 2018 statement, the Veteran reported that his knee disability should be reevaluated because his symptoms had drastically increased. May 2019 VA treatment reflects that the Veteran had full range of motion in his knees. After the May 2019 Board remand, in February 2020, a VA examination was scheduled, but the Veteran failed to appear. Pursuant to the July 2020 Board remand, another examination was scheduled for December 2020. The RO noted in a December 2021 supplemental statement of the case that it had been informed that the Veteran cancelled the examination, stating that he was not going to attend because he had already received a 100 percent disability evaluation. During September 2021 VA treatment, the Veteran rated his pain at a 0/10. He denied taking any pain medication within the prior 24 hours. Upon review of the evidence, the Board further finds that from August 24, 2016, the Veteran's right knee disability does not warrant a rating in excess of 10 percent. Specifically, the Board finds that the evidence does not suggest, even when functional loss due to pain is considered, that the Veteran's right knee disability is so disabling as to approximate the level of impairment required for the assignment of a rating in excess of 10 percent for flexion or extension of the knee. The Veteran has shown flexion to no worse than 140 degrees on repetitive motion testing, as shown at the August 2016 VA examination. At the August 2016 examination, the Veteran had full extension with pain on motion. His VA treatment records reveal full range of motion. As for instability, the August 2016 VA examination report found no instability. Thus, no separate or higher ratings are warranted for the Veteran's right knee disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, 5261. The Board notes that the February 2019 JMR found the August 2016 examination failed to reflect testing with weight-bearing or provide any information as to whether pain occurred on weight-bearing. However, the examiner did indicate the Veteran experienced pain with weight-bearing. Furthermore, as the Veteran refuses to attend VA examinations, remand for another examination would be futile. Thus, while the Veteran experiences pain, the Board finds that the 10 percent evaluation assigned for the knee adequately contempleates any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his right knee. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Therefore, a higher evaluation from August 24, 2016 for the right knee disability based on functional loss is not warranted. See DeLuca, supra. Moreover, the Board has also considered other diagnostic codes from August 24, 2016, to determine if a higher evaluation is warranted. However, evaluation of the relevant evidence of record reflects that the record contains no evidence of ankylosis, malunion or nonunion of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Accordingly, the Board finds that the evidence is persuasively against the assignment of a rating in excess of 10 percent for right knee from August 24, 2016, and the claim is denied. 2. Entitlement to a rating in excess of 10 percent for right elbow lateral epicondylitis 3. Entitlement to a rating in excess of 10 percent for left elbow lateral epicondylitis The Veteran's right and left elbow disabilities are each rated as 10 percent disabling for the entire period on appeal under 38 C.F.R. § 4.71a, Diagnostic Code 5206, which governs limitation of flexion of the forearm. 38 C.F.R. § 4.71a, Diagnostic Code 5206. Under Diagnostic Code 5206, limitation of flexion of either the major or minor forearm to 100 degrees warrants a 10 percent rating; limitation of flexion of either forearm to 90 degrees warrants a 20 percent rating; limitation of flexion of the major forearm to 70 degrees warrants a 30 percent rating; limitation of flexion of the major forearm to 55 degrees warrants a 40 percent rating; and limitation of flexion of the major forearm to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5206. Under Diagnostic Code 5207, limitation of extension of either the major or minor forearm to 45 or 60 degrees warrants a 10 percent rating; limitation of extension of either forearm to 75 degrees warrants a 20 percent rating; limitation of extension of the major forearm to 90 degrees warrants a 30 percent rating; limitation of extension of the major forearm to 100 degrees warrants a 40 percent rating; and limitation of extension of the major forearm to 110 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5207. Also, under Diagnostic Code 5213, a 10 percent rating requires impairment of supination to 30 degrees or less for either the major or minor forearm and a 20 percent rating for limitation of pronation, when pronation is lost beyond the middle or last quarter of the arc in either major or minor forearm. The normal range of motion of the elbow is flexion to 145 degrees and extension to 0 degrees. Normal pronation is from zero to 80 degrees and normal supination is from zero to 85 degrees. 38 C.F.R. § 4.71, Plate I. On VA examination in June 2009, the Veteran complained of bilateral elbow pain on a daily basis. The pain was located in the lateral epicondyle area. He was not taking any prescription treatment for the pain. He reported painless clicking and popping but no swelling, locking or giving out. Physical examination was the same for both elbows. They exhibited tenderness to palpation along the lateral epicondyles. There was positive long finger sign. Distal sensation was intact. Range of motion was from 0 to 145 degrees without pain. The Veteran did not exhibit any increased pain, fatigue, weakness, lack of endurance or incoordination on repetitive motion testing. No swelling was present. There was no crepitus. The diagnosis was recurrent bilateral elbow lateral epicondylitis. During August 2013 VA treatment, the Veteran had full muscle strength in both elbows. On VA examination of the elbows in February 2014, the Veteran reported pain in his bilateral elbows that would spread to his mid forearm, right greater than left. His dominant hand was his right hand. He did not report any flare-ups that impact the function of his elbow and/or forearm. Right elbow flexion was to 145 degrees or greater with no objective evidence of painful motion. There was no limitation of motion with right elbow extension. There was no objective evidence of painful motion on right elbow extension. Left elbow flexion was to 145 degrees or greater with no objective evidence of painful motion. There was no limitation of motion with left elbow extension. There was no objective evidence of painful motion on left elbow extension. Bilateral elbow pronation was from 0 to 60 degrees without pain times three. Bilateral elbow supination was from 0 to 70 degrees without pain times three. The Veteran was able to perform repetitive use testing with three repetitions. Post-test, right elbow flexion was to 145 degrees with no limitation of extension. Post-test, left elbow flexion was to 145 degrees with no limitation of extension. There was no additional limitation in range of motion of the elbows and forearms following repetitive use testing. There was no functional loss and/or functional impairment of the elbows and forearms. There was no localized tenderness or pain on palpation of joints/soft tissue of either elbow or forearm. Muscle strength testing was normal in both elbows. There was no ankylosis of either elbow. There was no flail joint, joint fracture and/or impairment of supination or pronation. During July 2015 VA treatment, the Veteran exhibited normal range of motion and full strength. During August 2016 VA treatment, the Veteran exhibited normal range of motion and full strength. When questioned on his pain, the Veteran only reported ankle pain. On VA examination in August 2016, the Veteran complained of persistent bilateral elbow pain which was worsened by repetitive use. Bilateral x-rays of the elbows taken in August 2016 were normal. The Veteran reported that there were flare ups of bilateral elbow pain in cold weather. Range of motion of the right elbow was normal. Flexion was from 0 to 145 degrees. Extension was from 145 to 0 degrees. Forearm supination was from 0 to 85 degrees. Forearm pronation was from 0 to 80 degrees. Pain was not noted on examination. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of pain with weight bearing. There was no objective evidence of crepitus. Range of motion of the left elbow was normal. Flexion was from 0 to 145 degrees. Extension was from 145 to 0 degrees. Forearm supination was from 0 to 85 degrees. Forearm pronation was from 0 to 80 degrees. Pain was not noted on examination. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of pain with weight bearing. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions, with both elbows. There was no additional loss of function or range of motion after three repetitions with both elbows. With both elbows, there was pain with grasping and pulling. There was no ankylosis of either elbow. The Veteran did not have flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation of either elbow. In his March 2018 statement, the Veteran reported that his disabilities should be reevaluated because his symptoms had drastically increased. As mentioned above, the Veteran failed to appear for a February 2020 VA examination. He then cancelled the rescheduled December 2020 VA examination, stating that he was not going to attend because he had already received a 100 percent disability evaluation. During September 2021 VA treatment, the Veteran rated his pain at a 0/10. He denied taking any pain medication within the prior 24 hours. Based on the evidence of record, the Board finds that initial ratings in excess of 10 percent are not warranted for the right elbow and left elbow disabilities. The VA examinations of record do not show that the Veteran's right elbow and left elbow had limitation of flexion of the forearm to 100 degrees or less or limitation of extension of the forearm to 45 degrees or more, or supination of 30 degrees or less. Therefore, ratings in excess of 10 percent are not warranted under Diagnostic Codes 5206, 5207, or 5213. The evidence also fails to show that the Veteran's right elbow and left elbow had objective evidence of pain on motion. The VA examination reports show that following repetitive use, the range of motion of both the right and left elbows was not additionally limited by pain, fatigue, weakness or lack of endurance. The Board has considered the factors noted in DeLuca and has considered the clinical findings; however, even with such consideration, the evidence does not reflect that the Veteran's symptoms were synonymous with limitation of flexion to 90 degrees or limitation of extension to 75 degrees to warrant higher evaluations. The Board has considered whether the Veteran is entitled to higher ratings under other rating criteria. There is no evidence of joint fracture, with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius. Therefore, a higher rating for either elbow is not warranted under Diagnostic Code 5209. (continued on next page.) In conclusion, the Board finds that initial ratings in excess of 10 percent are not warranted for the right and left elbow disabilities. Consequently, the benefit-of-the-doubt rule is not applicable, and the claims must be denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.