Citation Nr: A24029717 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 191024-42794 DATE: June 6, 2024 ORDER Entitlement to an increased rating of 10 percent, but no higher, for a left knee disability (based on limitation of extension), effective March 16, 2017, is granted. Entitlement to a compensable rating for a left knee disability (based on limitation of flexion) is denied. REMANDED Entitlement to a compensable rating for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. The Veteran's left knee disability is manifest by normal extension and flexion of 60 degrees at its worst. 2. The Veteran has had left knee pain for the entire period on appeal which causes a functional impact due to difficulty walking, standing, and kneeling. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for a left knee disability due to limitation of flexion and extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260 and 5261. 2. The criteria for a 10 percent rating, but no higher, for a left knee disability due to pain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, 4.59, Diagnostic Code 5260 and 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1986 until his honorable discharge in June 2006. In the October 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On December 20, 2023, the Veteran withdrew the hearing request. Therefore, the Board may only consider the evidence of record at the time of the July 2019 Regional Office decision on appeal, as well as any evidence submitted by the Veteran or representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the Regional Office issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of increased rating for GERD, any evidence the Board could not consider will be considered by the Regional Office in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 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. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 1. Entitlement to an increased rating in excess of 10 percent for a left knee disability (based on limitation of extension). 2. Entitlement to a compensable rating for a left knee disability (based on limitation of flexion). The Veteran asserts that he is entitled to an increased rating for his left knee disability. He was first awarded service connection in an August 2006 rating decision. The Veteran was awarded a noncompensable rating. The Veteran was sent a letter notifying him of this decision on August 16, 2006. New and material evidence nor a timely appeal were received within one year and so that decision was final. VA then received a claim for an increased rating on March 16, 2018, and so the period on appeal is from one year prior to that date, March 16, 2017, to the present. Currently, the Veteran's left knee disability is rated under Diagnostic Codes (DC) 5260 for limitation of flexion with a noncompensable rating and 5261 for limitation of extension with a 10 percent rating effective March 16, 2018. The Board notes that the 10 percent rating was awarded based on the presence of pain. See 38 C.F.R. § 4.59. DC 5260, limitation of flexion, awards a noncompensable rating for limitation of flexion to 60 degrees and a compensable 10 percent rating for limitation of flexion to 45 degrees, with higher ratings available. DC 5261, limitation of extension, awards a noncompensable rating for limitation of extension to 5 degrees and a compensable 10 percent rating for limitation of flexion to 10 degrees, with higher ratings available. Here, the Veteran has had two VA examinations, in May 2018 and May 2019. In the May 2018 VA examination, his initial range of motion resulted in forward flexion of the left knee was 90 degrees and extension was normal at zero degrees due to pain. Pain was present on weight bearing, but crepitus was not present. Observed repetitive use testing took place with additional loss of range of motion caused by pain and lack of endurance. Flexion decreased to 80 degrees and extension was normal. Repeated use over time decreased flexion to 70 and extension remained normal. The examination did not take place during a flare-up. The examiner found that the examination was consistent with the Veteran's statements and that flare-ups caused a decrease in flexion to 60 degrees and extension was normal. The examiner noted that there was "less movement than normal due to ankyloses, ect." and interference with standing. The examiner later stated that ankylosis was not present. The examiner noted that the Veteran's knee disability caused a functional impact due to pain with running, walking, standing, and kneeling. In the May 2019 VA examination, his initial range of motion was normal. Pain was noted but did not cause functional loss to range of motion. Pain was not present on weight bearing, but there was pain on palpation and crepitus was present. Observed repetitive use testing took place with no additional loss of range of motion. Repeated use over time did not take place but the examiner found that the examination was consistent with the Veteran's statements. Flexion decreased to 130 degrees and extension was normal. The examination did not take place during a flare-up. The examiner found that the examination was consistent with the Veteran's statements and that flare-ups did not cause further decrease in range of motion. The examiner noted that there was "less movement than normal due to ankyloses, adhesions, ect.", disturbance of locomotion, and interference with sitting and standing. The examiner later stated that ankylosis was not present. The examiner noted that the Veteran's knee disability caused a functional impact as left knee pain with prolonged sitting, standing, walking, bending, kneeling and stair climbing. In addition, when VA evaluates musculoskeletal disabilities under the Rating Schedule, it must determine whether or not the factors listed in 38 C.F.R. §§ 4.40, 4.45, and 4.59 are properly accounted for within the applicable DC criteria. Under section 4.40, VA must consider whether there is evidence of functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2001). Pain on movement, standing alone, is not sufficient to warrant a higher rating under section 4.40. Id. (reaffirming that pain must affect some aspect of "the normal working movements of the body... in order to constitute functional loss"). Section 4.45 expands upon the concept of functional loss, noting six factors that VA must consider when evaluating a disability, namely: (1) less or (2) more movement than is normal; (3) weakened movement; (4) excess fatigability; (5) incoordination; and (6) pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.45. Noticeably, the aspects of functional loss listed in section 4.40 closely parallel the factors listed in section 4.45. Section 4.45 applies to muscles, nerves, as well as the entire musculoskeletal system. DeLuca v. Brown, 8 Vet. App. 202, 207 (1995). Under section 4.59, a veteran may be awarded the minimum compensable evaluation available under a given musculoskeletal DC, even if application of that DC would not support a compensable evaluation, where there is evidence of "actually painful, unstable, or malaligned joints." 38 C.F.R. § 4.59; Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). Section 4.59 does not require medical evidence; it may be satisfied with lay and other non-medical evidence. Id. at 428. Thus, pain alone is compensable under section 4.59 for joint disabilities in general. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The VA treatment records support the Veteran's statement that he was pain in the left knee but do not include findings on flexion and extension. An October 2014 record from prior to the period on appeal states that movements of the knee is normal. As a result, the Board finds that the Veteran is not entitled to a higher rating for his left knee disability under DC 5260 or 5261. However, the Veteran is entitled to a minimum ten percent rating for the entire period on appeal due to pain under section 4.59. As a result, the Board will grant him a 10 percent rating under DC 5261 effective the start of the period on appeal, March 16, 2017. He is not entitled to a ten percent rating under both DC 5260 and 5261 due to pain under section 4.59 as that would constitute impermissible pyramiding. His flexion was 60 degrees at its worst which would entitle the Veteran to a noncompensable rating under DC 5260. His extension has always been normal and so he is not entitled to a compensable rating for limitation of extension. REASONS FOR REMAND 3. Entitlement to a compensable rating for gastroesophageal reflux disease (GERD). The Veteran's only VA examination for GERD in May 2019 is inadequate for rating purposes. The examination failed to address whether the Veteran had "dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain." Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Currently, the Veteran is in receipt of a noncompensable rating for the entire period on appeal. The Veteran's GERD is rated under § 4.114 Schedule of ratings-digestive system, DC 7399-7346. A hyphenated DC is 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. Here, DC 7399-7346 is used for hiatal hernia and GERD. The DC provides a 60 percent rating for "Symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health"; a 30 percent rating for "Persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health"; and a ten percent rating for a disability "With two or more of the symptoms for the 30 percent evaluation of less severity." The Board notes that dysphagia is defined as "difficulty in swallowing" and pyrosis is defined as "heartburn." "Dysphagia." Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/dysphagia. Accessed 21 May. 2024 and "Pyrosis." Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/pyrosis. Accessed 21 May. 2024. Here, the Veteran had a VA examination in May 2019. The examiner noted that the Veteran had symptoms of "reflux" and the "feeling of food stuck in his throat." The Veteran reported that he was dilated due to stricture two to three times. The examiner did not address whether the Veteran had dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain. Additionally, the treatment records show that the Veteran has had shoulder pain in October 2014. Treatment records from December 2018 report bilateral arm pain and records from May 2019 report body aches, "mostly back, shoulders, and arms." As a result, the claim must be remanded. On May 19, 2021, new regulations for the digestive system went into effect. The new rating criteria states as follows: 7206 Gastroesophageal reflux disease: Documented history of recurrent or refractory esophageal stricture(s) causing dysphagia with at least one of the symptoms present: (1) aspiration, (2) undernutrition, and/or (3) substantial weight loss as defined by § 4.112(a) and treatment with either surgical correction of esophageal stricture(s) or percutaneous esophago-gastrointestinal tube (PEG tube) 80 [percent;] Documented history of recurrent or refractory esophageal stricture(s) causing dysphagia which requires at least one of the following (1) dilatation 3 or more times per year, (2) dilatation using steroids at least one time per year, or (3) esophageal stent placement 50 [percent;] Documented history of recurrent esophageal stricture(s) causing dysphagia which requires dilatation no more than 2 times per year 30 [percent;] Documented history of esophageal stricture(s) that requires daily medications to control dysphagia otherwise asymptomatic 10 [percent;] Documented history without daily symptoms or requirement for daily medications 0 [percent;] Note (1): Findings must be documented by barium swallow, computerized tomography, or esophagogastroduodenoscopy. Note (2): Non-gastrointestinal complications of procedures should be rated under the appropriate system. Note (3): This diagnostic code applies, but is not limited to, esophagitis, mechanical or chemical; Mallory Weiss syndrome (bleeding at junction of esophagus and stomach due to tears) due to caustic ingestion of alkali or acid; drug-induced or infectious esophagitis due to Candida, virus, or other organism; idiopathic eosinophilic, or lymphocytic esophagitis; esophagitis due to radiation therapy; esophagitis due to peptic stricture; and any esophageal condition that requires treatment with sclerotherapy. Note (4): Recurrent esophageal stricture is defined as the inability to maintain target esophageal diameter beyond 4 weeks after the target diameter has been achieved. Note (5): Refractory esophageal stricture is defined as the inability to achieve target esophageal diameter despite receiving no fewer than 5 dilatation sessions performed at 2-week intervals. See 89 F.R. 19735. The Board notes that it is not a predecisional duty to assist error that the new DC criteria was not considered in the 2019 VA examination. However, because the Board is remanding the claims of increased rating for GERD, any evidence the Board could not consider will be considered by the Regional Office in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). The Board notes that the Veteran's representative submitted medical evidence during an applicable evidence window in January 2024. This evidence does provide some insight into the Veteran's disability; however, the prior duty to assist errors must be corrected. This evidence will be considered upon remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to determine the severity of his GERD. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner is asked to: a. consider whether the Veteran's GERD causes dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain. b. The Board highlights the following, which is not intended to replace or substitute your thorough and complete review of the relevant evidentiary record: the October 2014, December 2018, and May 2019 medical records discussing arm and shoulder pain; and the medical evidence received in January 2024 discussing achalasia, dysphagia, dilation, vomiting, regurgitation, and weight loss. The examiner is reminded to consider the Veteran's lay statements regarding the severity of his disability, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertions. If the examiner relies on medical treatises, the examiner should identify and discuss the treatises. If the examiner determines that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should identify what evidence is necessary to offer an opinion and why such evidence cannot be obtained. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.