KNEE IMPAIRMENT OF

JAMES SPRINGER · 2022 · Case ID: 22026896

MIXED

Summary

The veteran, who served from July 1995 to December 2001, appeals the denial of increased disability ratings for his service-connected bilateral knee conditions. The veteran sought ratings higher than 10 percent prior to September 26, 2020, and higher than 30 percent thereafter, based on pain and limited motion. The Board reviewed the evidence, including VA and private treatment records, and a VA examination from April 2016. The Board found that the medical evidence did not support the claimed limitations in flexion or extension required for higher ratings under Diagnostic Codes 5260 or 5261. The VA examination showed normal results for knee joints, with no objective signs of pain or instability, and no significant limitation of motion. The Board concluded that the weight of the evidence was against the claim for increased ratings for the bilateral knee conditions for both periods, and the benefit of the doubt doctrine was not applicable. The case also involves remanded claims for service connection for left shoulder and neck conditions, where the Board found the initial VA examiner's opinions inadequate for failing to fully consider the veteran's contentions and relying solely on the absence of in-service treatment records. The case is remanded for new medical opinions addressing the etiology of the left shoulder and neck conditions.

Rationale

Medical evidence did not support claimed limitations in flexion or extension.; VA examination showed normal results with no objective signs of pain or instability.; Weight of evidence was against claim for increased rating.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5260

Docket No.

17-58 808

Full Decision Text

Citation Nr: 22026896
Decision Date: 05/06/22 Archive Date: 05/06/22

DOCKET NO. 17-58 808
DATE: May 6, 2022

ORDER

Entitlement to an initial rating greater than 10 percent, prior to September 26, 2020, and 30 percent thereafter for service-connected left knee patellofemoral pain syndrome (left knee disability) is denied.

Entitlement to an initial rating greater than 10 percent, prior to September 26, 2020, and 30 percent thereafter for service-connected right knee patellofemoral pain syndrome (right knee disability) is denied.

REMANDED

Entitlement to service connection for a left shoulder is remanded.

Entitlement to service connection for a neck condition is remanded.

FINDINGS OF FACT

1. Prior to September 26, 2020, the Veteran presented with bilateral knee pain upon motion. There was no evidence of hyperextension, instability, or subluxation.

2. From September 26, 2020, the Veteran presented with bilateral knee pain with flexion limited to 15 degrees upon flare-ups and full extension. There was no evidence of hyperextension, instability, or subluxation.

CONCLUSIONS OF LAW

1. The criteria for an initial disability rating more than 10 percent, prior to September 26, 2020, and greater than 30 percent thereafter, for service-connected left knee disability, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DC 5260.

2. The criteria for an initial disability rating more than 10 percent, prior to September 26, 2020, and greater than 30 percent thereafter, for service-connected right knee disability, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DC 5260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1995 to December 2001.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because 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.

The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999).

The Veteran is seeking ratings greater than 10 percent, prior to September 26, 2020, and 30 percent thereafter for service-connected bilateral knee disability.

A. Prior to September 26, 2020.

The Veteran's bilateral knee disabilities are rated under Diagnostic Code 5260, prior to September 26, 2020. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed.

However, the Board will consider all potentially relevant DCs in assessing the merits of this appeal. Thus, to warrant a higher rating or the assignment of an additional service-connected disability, the evidence must show:

With X-ray evidence of involvement of 2 or more major
percent, prior to September 26, 2020, and 30 percent thereafter for service-connected bilateral knee disability.

A. Prior to September 26, 2020.

With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations (20 percent under DC 5003).

Flexion of the knee limited to 30 degrees (20 percent under DC 5260).

Extension of the knee limited to 15 degrees (20 percent under DC 5261).

Other diagnostic codes pertaining to the knee include DC 5256 (ankylosis), DC 5257 (knee joint instability), DC 5258 (dislocation of the semilunar cartilage), DC 5259 (removal of the semilunar cartilage), DC 5262 (impairment of tibia and fibula), and DC 5263 (genu recurvatum). These disorders are not shown in the record for the period on appeal such that application of these DCs is not warranted.

The Veteran's VA and private treatment records do not contain definitive range of motion results. As such, the record does not contain sufficient evidence as to establish a history of flexion limited to 30 degrees or extension limited to 10 degrees.

As to the medical evidence, increased ratings are not warranted per DC 5260. During the April 2016 VA examination, the Veteran demonstrated right knee flexion of 140 degrees with pain. However, his right knee pain was noted to not cause or result in functional loss. His left knee showed 140 degrees of flexion with no objective signs of pain. Repetitive use testing was performed, and the Veteran showed no changes in range of motion with either knee with repetitive movements. As such, the Veteran did not demonstrate such limitation of flexion as to a warrant increased rating per DC 5260.

Turning to DC 5261, a separate rating is not supported by the evidence. In this respect, the Veteran demonstrated full right and left knee extension during his April 2016 VA examination. Thus, such limitation of motion does not warrant the assignment of separate evaluations per DC 5261 for the Veteran's bilateral knee disability.

The April 2016 VA examination report indicates that testing of the Veteran's knee joints yielded normal results. There was no history of recurrent subluxation, lateral instability, or recurrent effusion.

With regards to a 20 percent rating under DC 5003, the Veteran has not exhibited degenerative arthritis of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. As such a higher rating under DC 5003 is not warranted. The evidence does not indicate that the Veteran has a diagnosis of bilateral knee degenerative arthritis.

In offering the above conclusions, the Board has considered the Veteran's statements regarding the severity of his symptoms, to include pain and limited motion of the right knee. While he is competent to report symptoms capable of lay observation, he is not competent to identify a specific level of disability according to the applicable DCs. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994).

Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran's disability, as the examiner possesses the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran's disabilities and had sufficient facts and data on which to base the conclusions. In this respect, the Board finds that the medical evidence supports the determinations offered above.

For the foregoing reasons, the weight of the probative evidence is against the Veteran's claim for a rating more than 10 percent for a bilateral knee disability, prior to September 26, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

B. From September 26, 2020.

The Veteran's bilateral knee disabilities are rated under Diagnostic
Veteran's disabilities and had sufficient facts and data on which to base the conclusions. In this respect, the Board finds that the medical evidence supports the determinations offered above.

B. From September 26, 2020.

The Veteran's bilateral knee disabilities are rated under Diagnostic Code 5260, from September 26, 2020. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed.

A 30 percent rating under Diagnostic Code 5260 is the highest possible evaluation available. Accordingly, the Board finds that the highest evaluation under that Diagnostic Code has been assigned in this case, and the Board will no longer discuss that Diagnostic Code. See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Extension of the knee limited to 15 degrees (20 percent under DC 5261).

As to the medical evidence, separate ratings for limitation of knee extension are not warranted per DC 5261. In this respect, the Veteran demonstrated full bilateral knee extension during his October 2020 VA examination with pain. Thus, such limitation of motion does not warrant the assignment of separate evaluations per DC 5261 for the Veteran's bilateral knee disability.

Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran's disability, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran's disabilities and had sufficient facts and data on which to base the conclusions. In this respect, the Board finds that the medical evidence supports the determinations offered above.

For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating more than 30 percent for a bilateral knee disability, from September 26, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

1. Entitlement to service connection for a left shoulder condition is remanded.

2. Entitlement to service connection for a neck condition is remanded.

The Veteran is seeking service connection for conditions of left shoulder and neck. He contends that his claimed left shoulder and neck disabilities are due to an in-service flag football injury and the burdens of active-duty service, to include physical training, exercise, heavy lifting, and overhead work.

To this end, the Veteran was afforded the October 2020 VA examination to determine the nature and etiology of the Veteran's claimed left shoulder and neck disabilities. The examiner found that neither the Veteran's left shoulder disability nor neck condition were related to his active service. The examiner acknowledged the Veteran's in-service treatment for a left shoulder injury but noted that the Veteran's service treatment records (STRs) were absent after that incident. The examiner highlighted that the Veteran's STRs are absent for a neck condition. The Board, however, finds the medical opinions to be inadequate for rating purposes because they are only based on the absence of medical
-duty service, to include physical training, exercise, heavy lifting, and overhead work.

To this end, the Veteran was afforded the October 2020 VA examination to determine the nature and etiology of the Veteran's claimed left shoulder and neck disabilities. The examiner found that neither the Veteran's left shoulder disability nor neck condition were related to his active service. The examiner acknowledged the Veteran's in-service treatment for a left shoulder injury but noted that the Veteran's service treatment records (STRs) were absent after that incident. The examiner highlighted that the Veteran's STRs are absent for a neck condition. The Board, however, finds the medical opinions to be inadequate for rating purposes because they are only based on the absence of medical treatment during service. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, the VA examiner did not fully consider the Veteran's contentions regarding his claimed disabilities. As such, further medical guidance is needed to address the etiology of the Veteran's claimed left shoulder and neck disabilities.

The matters are REMANDED for the following action:

1. Obtain an opinion from an appropriate examiner as to the possible relationship between the Veteran's current left shoulder and neck disabilities and his active service. Whether an examination is needed prior to rendering this opinion is left to the discretion of the examiner.

Regardless of whether an examination is performed, the examiner is to state:

(a). Whether it is at least as likely as not that any identified left shoulder disability had its onset during or is otherwise related to the Veteran's active service, to include in-service flag football injury and the burdens of active-duty service, to include physical training, exercise, heavy lifting, and overhead work.

(b). Whether it is at least as likely as not that any identified neck disability had its onset during or is otherwise related to the Veteran's active service, to include in-service flag football injury and the burdens of active-duty service, to include physical training, exercise, heavy lifting, and overhead work.

In offering any opinion, the clinician must consider the full record, to include the Veteran's lay statements, and the opinion should reflect such consideration. If there is medical reason to reject the Veteran's lay statements, the clinician must provide those reasons.

All opinions should be supported by a medical explanation or rationale.

2. Thereafter, readjudicate the appeal.

James Springer

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Higgins, J.R.

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.

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