Citation Nr: A25035492
Decision Date: 04/17/25	Archive Date: 04/17/25

DOCKET NO. 240510-437421
DATE: April 17, 2025

ORDER

Entitlement to a rating in excess of 10 percent for left knee quadriceps tendon rupture status post repair, to include degenerative arthritis, is denied. 

Entitlement to an initial 10 percent rating for hypertension is granted.

FINDINGS OF FACT

1. During the appeal period, the Veteran's left knee quadriceps tendon rupture status post repair, to include degenerative arthritis, is manifested by painful motion and flexion to 110 degrees.

2. During the appeal period, the Veteran's hypertension required continuous medication for control. 

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for left knee quadriceps tendon rupture status post repair, to include degenerative arthritis, have not been met. 38?U.S.C. §§ 1155, 5107; 38?C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003-5260. 

2. The criteria for an initial 10 percent rating, but no higher, for?hypertension?are met.?38 U.S.C. §§ 1155, 5107;?38 C.F.R. §§ 4.1-4.7, 4.21, 4.104, Diagnostic Code 7101. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1981 to April 1989.

In the May 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. 

The Board notes that the two issues on appeal stem from different rating decisions that were issued in February 2024.

For the claim of entitlement to a rating in excess of 10 percent for left knee quadriceps tendon rupture status post repair, to include degenerative arthritis, the Board may only consider the evidence of record at the time of the February 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 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 claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

For the claim of entitlement to a compensable rating for hypertension, in October 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a September 2023 decision. In February 2024, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior September 2023 decision. Therefore, the Board may only consider the evidence of record at the time of the September 2023 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Ratings Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

When the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

If the disability more nearly approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

A Veteran can only be granted service connection effective one year prior to his date of claim or intent to file a claim when the issue is a claim for an increased rating. In the case of a non-initial increased rating claim, the effective date for an increase will be the earliest date that it is factually ascertainable based on all the evidence of record that an increase in a disability occurred if the claim or statement of intent to file is received within one year of the date of increase; otherwise, the effective date will be the date of the receipt of claim. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010); 38 C.F.R. § 4.400(o)(2); 38 U.S.C. § 5110(b)(2) (which provides veterans with a one-year grace period for filing a claim following an increase in severity of a service-connected disability).

1. Entitlement to a rating in excess of 10 percent for left knee quadriceps tendon rupture status post repair to include degenerative arthritis.

The Veteran contends that he is entitled to a rating in excess of 10 percent for his left knee quadriceps tendon rupture status post repair, to include degenerative arthritis. For the reasons discussed below, the Board finds that entitlement to a rating in excess of 10 percent is not warranted for this claim. 

The appeal period before the Board begins on October 2, 2023, the date VA received the Veteran's claim for increased rating for his service-connected left knee pain, plus the one-year look-back period. Gaston, 605 F.3d at 982. Considering this, the Board notes that the actual period for review in this matter extends back to October 2, 2022, provided, of course, that any discernible increase in severity is "factually ascertainable" during the one-year retrospective period. 

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves, when a flare-up is not observable at the time of examination.

VA amended the criteria for rating musculoskeletal disabilities in February 2021. The new regulation applies to claims received on or after February 7, 2021, or previously filed claims that are pending on February 7, 2021, if the new regulation will render more favorable result for the Veteran. However, the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi,?341 F.3d 1327?(Fed. Cir. 2003). Here, the new criteria do not apply because the claim was received after the regulations were amended.  

The Veteran's left knee disability is being rated under Diagnostic Code 5003-5260. 38?C.F.R. §?4.71a, Diagnostic Codes 5003, 5260. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38?C.F.R. §?4.27. Here, the use of Diagnostic Code 5003-5260 reflects that the Veteran's left knee disability is described as degenerative arthritis under Diagnostic Code 5003 and that the ratings assigned are based on limitation of knee flexion under Diagnostic Code 5260. 

Degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. 38?C.F.R. §?4.71, Diagnostic Code 5003. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 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 20 percent evaluation is merited for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for x-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38?C.F.R. §?4.71A, Diagnostic Code 5003. 

When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic code, the compensable limitation of motion should be rated under the appropriate diagnostic code for the specific joint or joints involved. 38?C.F.R. §?4.71A. 

Ratings for limitation of flexion of a knee are assigned as follows: flexion limited to 60 degrees is noncompensable; flexion limited to 45 degrees is 10 percent disabling; flexion limited to 30 degrees is 20 percent disabling; and flexion limited to 15 degrees is 30 percent disabling. 38?C.F.R. §?4.71A, Diagnostic Code 5260. 

The Veteran underwent a VA examination in October 2023 for his knee. The Veteran reported his current symptoms as sharp pain in the left knee, weakness, and reduced range of motion (ROM). He reported that his condition interferes with work, prolonged sitting, standing, and exercise. The Veteran reported that he is currently taking over the counter Ibuprofen as needed. 

The examiner noted that the Veteran had flare-ups of the left knee daily, which are moderate to severe, and last for a few minutes to an hour. The examiner noted that the left knee flare-ups are precipitated by prolonged sitting, standing, and walking, and are alleviated by pain medication and rest.

The left knee ROM measurements were noted as abnormal and contributed to functional loss like bending, kneeling, and squatting. The Veteran exhibited pain on both flexion and extension. Active ROM flexion endpoint was 110 degrees and extension endpoint was 0 degrees. Passive ROM was noted to be the same as active ROM. The Veteran exhibited pain in weight-bearing, non-weight-bearing, active motion, passive motion, on rest/non-movement along with causing functional loss as noted above.

There were no additional factors contributing to his left knee disability, to include muscle atrophy, ankylosis, instability, tibial or fibular impairment.

The Board finds that the evidence of record persuasively weighs against a disability rating in excess of 10 percent for the Veteran's left knee disability. The evidence does not show that the Veteran's flexion more nearly approximates limitation to 30 degrees. The Board has considered the Veteran's functional loss, but the evidence does not suggest limitation of flexion warranting an initial rating in excess of 10 percent. Similarly, the evidence does not show x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations to warrant a 20 percent rating under Diagnostic Code 5003.

In reaching this determination, the Board acknowledges that VA is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use." Ingram v. Collins, __ Vet. App. __, No. 23-1798, 2025 U.S. App. Vet. Claims LEXIS 327, *1 (Mar. 12, 2025). Here, the Board is aware that the Veteran has taken medication to address the symptoms of his left knee disability. That having been said, certain symptoms listed in the criteria for the currently assigned 10 percent rating have not been shown, and the Board finds that the Veteran's symptoms during the appeal period and the use of medication, viewed in tandem, are essentially commensurate to the disability picture contemplated by the currently assigned 10 percent rating. 

The Board has also considered other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).

Diagnostic Code 5256 evaluates impairment from ankylosis, which has not been shown. The Veteran does not contend, nor does the evidence show, that any loss of range of motion is tantamount to ankylosis warranting a rating under this diagnostic code. Diagnostic Code 5257 evaluates recurrent subluxation or instability, which has not been shown. The Veteran does not contend, nor does the evidence show, that there is any patellar instability.

Further the Board also considered whether Diagnostic Codes 5258 and 5259 are applicable. The examiner found that the Veteran does not have, nor has he been diagnosed with a semilunar cartilage condition. Therefore, ratings under Diagnostic Codes 5258 and 5259 are not warranted.

Diagnostic Code 5261 evaluates impairment from limitation of extension. A zero percent rating is warranted for extension limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The examination shows normal extension to zero degrees bilaterally. Therefore, a separate rating under Diagnostic Code 5261 is not warranted. Lastly, the evidence does not show impairment of the tibia and fibula warranting a rating under Diagnostic Code 5262 or genu recurvatum warning a rating under Diagnostic Code 5263.

Finally, the Veteran is already in receipt of a compensable rating for the symptom of his condition, to include pain. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell, 25 Vet. App. at 44; DeLuca, 8 Vet. App. at 206.

Evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Thus, higher ratings under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 (to include the Mitchell and DeLuca criteria) are not warranted in the Veteran's disability picture for this appeal period.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for initial ratings in excess of 10 percent for his left knee quadriceps tendon rupture status post repair to include degenerative arthritis. As the evidence of record persuasively weighs against ratings in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

2. Entitlement to an initial 10 percent rating for hypertension. 

The Veteran contends that he is entitled to an initial compensable rating for hypertension. For the reasons discussed below, the Board finds that entitlement to a compensable rating of 10 percent is warranted for this claim.

The Veteran was granted service connection for hypertension with a noncompensable (zero) percent disability rating, effective February 14, 2023, under 38 C.F.R. § 4.104, Diagnostic Code 7101 in a September 2023 rating decision. The appeal period begins on February 14, 2023, the date VA received the Veteran's intent to file claim for hypertension.

Hypertension is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension). Under Diagnostic Code 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A 60 percent rating is warranted for diastolic pressure predominantly 130 or more. 

The term "predominant" is not defined in the rating criteria. Merriam-Webster defines predominant to mean "being most frequent or common." See, e.g., "predominant," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant.

VA amended the certain rating criteria for the cardiovascular system in November 2021.  

The Veteran underwent a VA examination for hypertension in August 2023. The Veteran reported that he takes the medication Amlodipine 5 mg daily. The Veteran reported that his blood pressure remains high with the medication but can fluctuate. The Veteran reported that he is used to seeing blood pressure readings of 130/90-100s. The Veteran's blood pressure readings during the examination were noted as 144/90, 140/90 and 138/88.

In considering the evidence of record under the laws and regulations as set forth above, the Board find that the Veteran is entitled to an initial compensable evaluation for hypertension. The evidence shows that the Veteran requires continuous medication for control of his hypertension throughout the appeal period, and therefore, the Board will resolve reasonable doubt in the Veteran's favor and conclude that an initial 10 percent rating, but no higher, is warranted for hypertension.

The evidence does not show that the Veteran's?hypertension?has manifested in diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more corresponding to the criteria for a 20 percent rating under Diagnostic Code 7101. Both the VA examination and treatment records fail to show diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200. The Veteran has not provided any lay statements indicating that he has diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200. 

Accordingly, during the appeal period, the Veteran's?hypertension?has required continuous medication for control indicative of a 10 percent rating under Diagnostic Code 7101. The Veteran's?hypertension?does not, however, more nearly approximate the criteria corresponding to a 20 percent rating. Therefore, an initial 10 percent rating, but no higher, is warranted.

Finally, the Board notes that neither the record nor the Veteran's lay assertions reflect that his left knee disability and hypertension, alone or in tandem with other service-connected disabilities, render him unable to secure or follow a substantially gainful occupation. Accordingly, the Board finds that a total disability rating claim based upon individual unemployability (TDIU) is not part and parcel of the Veteran's claim for a higher rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 

Moreover, the Veteran has not raised any other issues (e.g., separate or extraschedular ratings), nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 

 

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Khan, 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.