UNDIAGNOSED ILLNESSES

L. BARSTOW · 2022 · Case ID: 22037576

MIXED

Summary

The veteran, who served from July 2006 to February 2013, appeals the denial of service connection for fatigue due to Gulf War Illness (GWI) and seeks higher ratings for bilateral knee conditions. The Board denied service connection for fatigue due to GWI, finding that while the veteran is a Persian Gulf veteran, the evidence did not show objective indications of a qualifying chronic disability beyond his existing service-connected asthma and PTSD. The Board noted that the veteran's fatigue was attributed to these existing conditions and that no diagnosis of chronic fatigue syndrome was confirmed. For the knee conditions, the veteran sought increased ratings for left and right knee strains and instability, and for limitation of extension. The Board granted earlier effective dates of February 2, 2013, for the 10 percent ratings for left and right knee instability, finding that slight instability was shown from service onward. However, the Board denied increased ratings for knee strains and instability, finding the evidence persuasively weighed against higher evaluations due to lack of ankylosis, sufficient limitation of flexion, or malunion/nonunion. The Board also denied increased ratings for knee extension limitations, finding the evidence did not support limitations meeting the criteria for higher percentages prior to December 7, 2021, or thereafter. The Board considered the DeLuca criteria but found the evidence did not warrant higher ratings, as the existing 10 percent ratings for knee strains adequately contemplated the Veteran's reported pain and functional limitations.

Rationale

Veteran is a Persian Gulf veteran.; No objective indications of a qualifying chronic disability beyond existing service-connected asthma and PTSD.; No confirmed diagnosis of chronic fatigue syndrome.; Fatigue attributed to asthma and PTSD.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

15-09 804

Full Decision Text

Citation Nr: 22037576
Decision Date: 06/29/22 Archive Date: 06/29/22

DOCKET NO. 15-09 804
DATE: June 29, 2022

ORDER

Entitlement to service connection for fatigue due to Gulf War Illness (GWI) is denied.

Entitlement to an initial rating in excess of 10 percent for left knee strain is denied.

Entitlement to an initial rating in excess of 10 percent for right knee strain is denied.

Entitlement to an earlier effective date of February 2, 2013, for the initial rating of 10 percent for left knee instability is granted.

Entitlement to an earlier effective date of February 2, 2013, for the initial rating of 10 percent for right knee instability is granted.

Entitlement to an initial rating in excess of 10 percent for left knee instability is denied.

Entitlement to an initial rating in excess of 10 percent for right knee instability is denied.

Entitlement to an initial rating in excess of 10 percent for right knee, limitation of extension prior to December 7, 2021, and in excess of 20 percent from December 7, 2021, is denied.

Entitlement to an initial rating in excess of 10 percent for left knee, limitation of extension prior to December 7, 2021, and in excess of 20 percent from December 7, 2021, is denied.

FINDINGS OF FACT

1. The Veteran does not have a diagnosis of chronic fatigue syndrome or an undiagnosed illness or medically unexplained chronic multi-symptom illness with symptoms of fatigue; his reported fatigue has been attributed to his service-connected asthma and/or service-connected posttraumatic stress disorder (PTSD).

2. Bilateral knee strain was not manifested by knee ankylosis, flexion limited to 30 degrees or less, and malunion/nonunion of the tibia and fibula.

3. The Veteran filed his initial claim for service connection for a bilateral knee disability within one year of service discharge.

4. Bilateral knee instability was shown in service and throughout the appeal period.

5. Bilateral knee instability did not manifest as moderate instability, sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribed a brace and/or device for ambulation, or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribed either an assistive device or bracing for ambulation.

6. Bilateral limitation of knee extension was not manifested by extension limited to 15 degrees prior to December 7, 2021, or limited to 20 degrees thereafter.

CONCLUSIONS OF LAW

1. The criteria for service connection for fatigue due to GWI are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317.

2. The criteria for an initial rating in excess of 10 percent for left knee strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260.

3. The criteria for an initial rating in excess of 10 percent for right knee strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260.

4. The criteria for an initial rating of 10 percent for left knee instability from February 2, 2013, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257.

5. The criteria for an initial rating of 10 percent for right knee instability from February 2, 2013, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257.

6. The criteria for an initial rating in excess of 10 percent
.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257.

6. The criteria for an initial rating in excess of 10 percent for left knee, instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257.

7. The criteria for an initial rating in excess of 10 percent for right knee, instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257.

8. The criteria for an initial rating in excess of 10 percent for right knee, limitation of extension prior to December 7, 2021, and in excess of 20 percent from December 7, 2021, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5261.

9. The criteria for an initial rating in excess of 10 percent for left knee, limitation of extension prior to December 7, 2021, and in excess of 20 percent from December 7, 2021, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5261.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 2006 to February 2013.

In June 2018, the Board remanded the claims for service connection fatigue due to GWI and a left arm neurological condition and initial compensable ratings for left knee strain, right knee strain, and dermatitis. The claims were remanded for VA and private treatment records and VA examinations.

In a December 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for a left arm neurological condition. As such, that claim is no longer before the Board as this is a full grant of benefits sought with respect to this issue. Regarding the issue of a higher rating for dermatitis, in January 2021, the Veteran opted into the Appeals Modernization Act by submitting a VA Form 20-0995 Supplemental Claim within 60 days of the issuance of the December 2020 Supplemental Statement of the Claim. Consequently, the issue has been withdrawn from the legacy appeal process.

In March 2021, the Board again remanded the claims for an initial compensable rating for left and right knee strain and service connection for fatigue due to GWI for new VA examinations. The Board found that previous VA examinations did not completely address all theories of entitlement for service connection and the March 2019 knee examination was incomplete, and the examiner discounted the Veteran's lay statements. The Board finds there was substantial compliance with this development.

1. Entitlement to service connection for fatigue due to GWI.

The Veteran contends that he has fatigue due to exposure to burn pits during service. See October 2013 statement.

Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). Objective indications of a qualifying chronic disability include both signs and symptoms, in the medical sense of objective evidence perceptible to an examining physician, and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs and symptoms include, but are not limited to, fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995).

Here, the evidence shows that the Veteran is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e).

The evidence does not, however, show objective indications of a qualifying chronic disability. Initially, the Board notes that the Veteran's claim was previously characterized as service connection for a disorder manifested by fatigue, respiratory symptoms, and chest pain. Following the March 2021 Board remand, the AOJ issued an August 2021 rating decision which granted service connection for asthma. This grant of benefits was based upon a December 2021 VA medical opinion where the examiner stated that fatigue is a common and clinically relevant symptom of asthmatic patients, and fatigue can also be caused by chronic sleep impairment. The December 2021 examiner specifically opined that the Veteran did not have a medically unexplained multi-symptom illness. The examiner attributed the Veteran's symptoms of shortness of breath, wheezing, and dry cough to his asthma, which has a distinct pathophysiology.

To the extent that the Veteran has skin symptoms, muscle pain, and joint pain, he is service-connected for dermatitis, foot, knee, and lumbar spine disabilities. He is also service-connected for left upper extremity radiculopathy and bilateral lower extremity peripheral neuropathies. The evidence does not suggest other signs or symptoms that are not already associated with his various service-connected disabilities. As the Veteran does not have objective indications of a qualifying chronic disability, service connection for fatigue as a symptom of such a disability pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 is not warranted.

Further, the evidence does not show a diagnosis of chronic fatigue syndrome. The Veteran was provided VA chronic fatigue syndrome examinations in May 2021 and December 2021. Neither examination showed a diagnosis of chronic fatigue syndrome. The December 2021 examiner noted that the reported onset of fatigue occurred at the same time as his respiratory and PTSD symptoms. The examiner also stated the Veteran has never been diagnosed with fatigue or evaluated for it after 2016. As a result, the examiner opined that the Veteran's fatigue is less than likely as not due to his service in Southwest Asia, beyond the noted connection to asthma.

The evidence of record fails to show a confirmed diagnosis of chronic fatigue syndrome. Rather, the evidence as discussed above shows that the Veteran's symptom of fatigue is associated with his service-connected asthma and PTSD. Accordingly, as the evidence persuasively weighs against a finding that the Veteran has a diagnosis of a disorder manifested by fatigue other than those already service-connected, service connection for fatigue must be denied.

Increased Ratings

Disability evaluations are determined by the application of the VA 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 be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1.

VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C
C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1.

VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7.

The United States Court of Appeals for Veterans Claims (Court) has held that when a diagnostic code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flareups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Deluca criteria will be considered at the end of this decision.

Also, the Court has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and non-weight-bearing conditions.

Where limitation of motion is not compensable under the specific code for a joint, 38 C.F.R. § 4.59 provides for a minimum compensable rating for actually painful joints in conjunction with a diagnostic code based on limitation of motion. Sowers v. McDonald, 27 Vet. App. 472, 479 (2016); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). The Board notes the Veteran is in receipt of the minimum compensable rating, 10 percent, for left and right knee strains; therefore, no additional rating would be available under 38 C.F.R. § 4.59.

Pyramiding, that is, the evaluation of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury, which would permit rating under several DCs. The critical element in permitting the assignment of several evaluations under various DCs is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 26162 (1994).

The Board notes there is no evidence of dislocated semilunar cartilage, removal of cartilage, or genu recurvatum. Therefore, DCs 5258, 5259, and 5263 are not for application.

2. Entitlement to a rating in excess of 10 percent for left knee strain.

3. Entitlement to a rating in excess of 10 percent for right knee strain.

The Veteran contends his left and right knee strains warrant higher evaluations. On the March 2017 Correspondence, the Veteran, through his representative at the time, documents the evidence of record supports a 20 percent rating for limitation of flexion to 25 degrees in the right knee and a 30 percent rating for limitation of flexion to 20 degrees in the left knee. The Veteran's representative also stated a 50 percent rating is warranted for each knee under DC 5256 due to ankylosis with flexion between 20 and 45 degrees.

The Veteran was granted 10 percent ratings for left and right knee strains in a March 2020 rating decision, effective
in excess of 10 percent for right knee strain.

The Veteran was granted 10 percent ratings for left and right knee strains in a March 2020 rating decision, effective February 2, 2013, the day after service discharge because the claim for benefits was received within one year of service discharge. The Veteran's knee strains are rated under DC 5260 for limitation of flexion.

Under DC 5256, a 40 percent rating is warranted for knee ankylosis in flexion between 10 degrees and 20 degrees. A 50 percent rating is warranted for knee ankylosis in flexion between 20 degrees and 45 degrees. A 60 percent rating is warranted for extremely unfavorable knee ankylosis, in flexion at an angle of 45 degrees or more. See 38 C.F.R. § 4.71a, DC 5256

Under DC 5260, limitation of flexion of the knee to 45 degrees warrants a 10 percent, limitation of flexion of the knee to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. See 38 C.F.R. § 4.71a, DC 5260.

Under old 38 C.F.R. § 4.71a, DC 5262, impairment of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating; with moderate knee or ankle disability warrants a 20 percent rating; with marked knee or ankle disability warrants a 30 percent rating; and with nonunion (loose motion requiring brace) warrants a 40 percent rating.

Effective February 7, 2021, VA amended DC 5262. Medial tibial stress syndrome (MTSS), or shin splints is rated as 0 percent disabling with treatment less than 12 consecutive months, one or both lower extremities; 10 percent disabling when requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; 20 percent disabling when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity; and 30 percent disabling when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Tibia and fibula are rated as 40 disabling with nonunion with loose motion, requiring brace. Tibia and fibula with malunion are evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation.

The Board has carefully reviewed the evidence and finds the evidence is persuasively against evaluations in excess of 10 percent for left and right knee strains. Specifically, the evidence is persuasively against knee ankylosis, flexion limited to 30 degrees or less, and malunion/nonunion of the tibia and fibula. The reasons follow. The Board notes the March 2019 VA examination was found to be incomplete as the examiner discounted the Veteran's lay statements by the March 2021 Board decision, so its findings will not be discussed.

DC 5256

The February 2017 private examiner documented the Veteran had ankylosis of right knee flexion at 25 degrees and ankylosis of left knee flexion at 20 degrees. This notation is the only mention of knee ankylosis in the record. For example, the September 2013, August 2021, December 2021, and February 2022 VA examiners did not document knee ankylosis. Treatment records are also silent for ankylosis. As will be discussed in greater detail below, the findings of the February 2017 private examiner are wildly inconsistent with findings throughout the appeal period. This lone finding of ankylosis is one example of that inconsistency. The evidence of record is persuasively against the Veteran having ankylosis of either knee warranting a higher rating under DC 5256.

DC 5260

The Veteran underwent a
20 degrees. This notation is the only mention of knee ankylosis in the record. For example, the September 2013, August 2021, December 2021, and February 2022 VA examiners did not document knee ankylosis. Treatment records are also silent for ankylosis. As will be discussed in greater detail below, the findings of the February 2017 private examiner are wildly inconsistent with findings throughout the appeal period. This lone finding of ankylosis is one example of that inconsistency. The evidence of record is persuasively against the Veteran having ankylosis of either knee warranting a higher rating under DC 5256.

DC 5260

The Veteran underwent a VA examination in August 2013. The Veteran reported his knees pop up and he has decreased range of motion and tightness in the right knee. Symptoms worsen with prolonged walking, running, jogging, and walking on stairs. The Veteran reported no flare-ups. Initial range of motion and range of motion after three repetitions for both knees were 130 degrees of flexion without objective evidence of painful motion. Functional loss/impairment was documented as less movement than normal, but pain, weakness, fatigability, or incoordination did not significantly limit functional ability when the unit is used repeatedly over time or during flare-ups. There was no pain on palpation or patellar subluxation/dislocation. Muscle strength testing documented 5/5, normal strength for both knees. The Veteran was noted as using a knee band occasionally. The impact on the Veteran's ability to work was documented as pain on prolonged walking on uneven surfaces, running, kneeling, and lifting.

The Veteran's former representative believes the 2013 VA examination is inadequate for multiple reasons. He states the examiner failed to properly evaluate flare-ups. However, the Veteran did not report flare-ups during this examination. It is an incorrect premise that flare-ups must be evaluated in every musculoskeletal examination. Without a report of flare-ups and associated symptoms, it would be impossible for an examiner to evaluate someone during a flare. He also notes that the examiner stated the Veteran experienced less movement than normal in functional loss/impairment and also stated the Veteran had a full range of motion which he believes are inconsistent statements. In fact, the examiner did not document the Veteran had a full range of motion as flexion was documented to 130 degrees when full range of motion is 140. The Veteran's representative states the examiner did not test to determine the impact of increased use, but the examiner documented repetitive use testing. The Board does not find these contentions reduce the probative value of the findings.

A January 2016 VA treatment record documents the Veteran regularly uses a cane and wears knee braces. An October 2016 VA examination documented the Veteran had normal range of motion in the knees.

The Veteran underwent a private examination in February 2017. The examiner documented the Veteran occasionally uses a wheelchair and constantly uses a brace and cane. However, treatment records consistently document the Veteran is not wheelchair bound, and in discussions with his caregiver noted within treatment records, the caregiver never mentions any need for a wheelchair occasionally.

The private examiner documented the Veteran's medical history as exceedingly painful symptoms and limited use of joints/lower extremities with pain and soreness frequently limiting normal function. The Veteran reported flare-ups as severe pain and range of motion limiting his ability to walk and move freely. Functional impact/impairment was documented as an inability to walk or move frequently due to severe pain, and the Veteran uses a cane and brace constantly. Right knee flexion was documented as 65 degrees, and left knee flexion was documented as 70 degrees. The Veteran was unable to perform repetitive use testing due to pain. The examiner did not document ranges of motion for active or passive motion, in weight-bearing and non-weight-bearing, or localized tenderness or pain on palpation. Contributing factors of disability include less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, disturbance of locomotion, interference with sitting, and interference with standing for both knees. Pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups. Pain was documented as limiting use of lower extremities to walk, stand, and normally function. Muscle strength was documented as 1 of 5 for flexion of the right knee and 2 of 5 for flexion of the left knee. There was no evidence of crepitus. Functional impact of the knee disabilities is when pain is severe, more than 50 percent of the time, the Veteran cannot walk or even get out of bed.

The February 2017 private examiner diagnosed the Veteran with osteoarthritis, but when asked if imaging studies showed degenerative or traumatic arthritis, this section was left blank. Moreover, available
Pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups. Pain was documented as limiting use of lower extremities to walk, stand, and normally function. Muscle strength was documented as 1 of 5 for flexion of the right knee and 2 of 5 for flexion of the left knee. There was no evidence of crepitus. Functional impact of the knee disabilities is when pain is severe, more than 50 percent of the time, the Veteran cannot walk or even get out of bed.

On a June 2017 VA treatment record, the Veteran reported he had left knee pain greater than right knee pain. He reported exercising one to two miles. His symptoms were overall stable, but knee pain is limiting. He cannot stand for prolonged periods of time and had to shift positions. Walking more than two miles increases pain. During a July 2017 VA treatment record, the Veteran reported chronic left knee pain which is associated with load [loud] popping, tenderness, and soreness. He also reported knee locking. Range of motion was documented as normal without swelling or redness.

The Veteran underwent a VA examination in August 2021. The examiner documented the Veteran's report that pain and stiffness in knees affects quality of life. There is pain with prolonged standing and walking. Flare-ups of the right knee occur daily and are moderate to severe. Left knee flares occur daily and are moderate. For the knees, flares last six hours to two or three days and are preceded by walking, climbing, weight-lifting, and going up and down stairs. The examiner documented bilateral knee flexion to 135 degrees initially and in passive range of motion. Pain was evident on active and passive motion and weight-bearing and non-weight-bearing. There was evidence of crepitus but without tenderness or pain on palpation. Repetitive use testing was completed without any loss in ranges of motion. Pain significantly limits functional ability with repeated use over time with an estimated flexion of 130 degrees bilaterally. Estimated flexion during flares was also 130 degrees bilaterally. No additional factors contribute to disability.

The Veteran underwent a VA examination in December 2021. The examiner documented the Veteran's report of bilateral knee pain with the right being worse than the left. The Veteran also reported flare-ups which occur anytime he tried to kneel or squat to do yard work or housework. They occur once or twice a week and last three to four hours. The pain is sharp and piercing. The Veteran is unable to kneel or squat to do yard work or light housecleaning without knee pain flaring up. He cannot stand or walk very long because of pain and instability. Active ranges of motion were 120 degrees of flexion on the right and 130 degrees of flexion on the left. Passive ranges of motion were 130 degrees of flexion on the right and 135 degrees of flexion on the left. The examiner documented evidence of pain on weight-bearing and non-weight-bearing and with passive and active motion, and this pain caused functional loss which was pain with kneeling, squatting, walking, stair use, or prolonged standing. There is objective evidence of crepitus and localized tenderness or pain on palpation bilaterally. There was no additional loss of range of motion after repetitive use. Repeated use over time was estimated as 115 degrees of flexion for the right and 125 degrees of flexion for the left. Flare-ups were estimated as 110 degrees of flexion on the right and 120 degrees of flexion on the left. Additional factors contributing to disability were noted as interference with standing, disturbance of locomotion, and instability of station.

The Veteran underwent a VA examination in February 2022. The Board notes range of motion testing is only documented for the left knee as testing could not be performed with the right knee due to subjective/objective complaints of pain and tenderness, objective evidence of an abnormality, and decreased range of motion. However, the August and December 2021 VA examinations showed nearly normal ranges of motion for both knees, so this finding relative to the right knee is inconsistent with the previous examination.

The examiner documented the Veteran's report that left knee symptoms have worsened in the previous two years. He reports more stiffness and constant left knee pain with varying intensity. The Veteran denied left knee flare-ups. The Veteran reported walking long distances and navigating stairs can be difficult because of his left knee pain and instability. There was no functional impairment reported for the right knee. He did not report frequent effusion. The examiner documented left knee
right knee due to subjective/objective complaints of pain and tenderness, objective evidence of an abnormality, and decreased range of motion. However, the August and December 2021 VA examinations showed nearly normal ranges of motion for both knees, so this finding relative to the right knee is inconsistent with the previous examination.

The examiner documented the Veteran's report that left knee symptoms have worsened in the previous two years. He reports more stiffness and constant left knee pain with varying intensity. The Veteran denied left knee flare-ups. The Veteran reported walking long distances and navigating stairs can be difficult because of his left knee pain and instability. There was no functional impairment reported for the right knee. He did not report frequent effusion. The examiner documented left knee flexion to 110 degrees initially and in passive range of motion. Pain was evident on active and passive motion and caused functional loss. Functional loss and the impact on employment was a difficulty walking and taking stairs due to the left knee pain. There was no evidence of crepitus or tenderness/pain on palpation. Repetitive use testing was completed without any loss in range of motion. Pain, weakness, fatigability, and lack of endurance significantly limit functional ability with repeated use over time with an estimated flexion of 100 degrees bilaterally. The Veteran uses a brace and cane occasionally.

The Board finds the February 2017 private examination has less probative value then VA examinations and treatment records because it is out of line with most evidence of record. The examiner reported knee osteoarthritis when no imaging has documented it. His ranges of motion during this examination are far worse than what was documented during regular treatment and VA examinations both before and after including as close in time as four months later where his ranges of motion were noted as normal. Even though the Veteran endorsed recent worsening within two years of the 2022 examination, his ranges of motion were far better than they were in 2017. Consequently, the overall evidence of record fails to show limitation of flexion warranting ratings higher than 10 percent for either knee.

DC 5262

Shin splints were diagnosed in both lower extremities by the August 2013 VA examiner and February 2017 private examiner, but the Board notes that these findings conflict with what the Veteran reported during treatment, where statements tend to be highly reliable. In VA treatment records from August 2014 to February 2021, the Veteran did not report leg pain except when noting it was an extension of his back pain. He never reported shin splints. A December 2021 VA addendum opinion did not find evidence of shin splints. The Board finds the lack of reports of shin pain over several years to be more reliable than the examiners' findings that he has shin splints on two isolated incidents. As such, a separate rating under DC 5256 cannot be considered.

This is evidence against an increased rating for left knee flexion manifesting as knee ankylosis, flexion limited to 30 degrees or less, and malunion/nonunion of the tibia and fibula to warrant an increased rating.

4. Entitlement to an earlier effective date of February 2, 2013, for the initial rating of 10 percent for left knee instability is granted.

5. Entitlement to an earlier effective date of February 2, 2013, for the initial rating of 10 percent for right knee instability is granted.

The Veteran contends he experienced instability during the appeal period. On a January 2014 Correspondence, he explained that he has slight recurrent instability. He must wear braces on both knees while running and experiences moderate to severe pain after even light physical activity. The Veteran, through his then representative, stated on the March 2017 Correspondence, that he is entitled to a 30 percent rating for severe instability or a 20 percent rating for moderate subluxation due to the findings of the February 2017 private examination. A February 2022 rating decision granted service connection for instability of both knees effective December 7, 2021, the date of a VA examination.

VA amended the regulations for rating knee disabilities, namely, DC 5257 (subluxation and instability) effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020). The criteria that are most favorable to the Veteran's pending claim will apply; however, an award based on the amended regulations may not be made effective before the effective date of the change. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Effective prior to
, DC 5257 (subluxation and instability) effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020). The criteria that are most favorable to the Veteran's pending claim will apply; however, an award based on the amended regulations may not be made effective before the effective date of the change. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Effective prior to February 7, 2021, under DC 5257, recurrent subluxation or lateral instability of the knee will be assigned a rating of 10 percent if it is slight, 20 percent if it is moderate, or 30 percent if it is severe.

The words "slight, moderate, and severe" are not defined by the VA Rating Schedule. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount, "moderate" means limited in scope or effect, and "severe" means very painful or harmful or of a great degree. Rather than applying a mechanical formula, the Board must evaluate the evidence to the end that its decisions are "equitable and just as contemplated by the requirements of the law." See 38 C.F.R. § 4.6.

Under the criteria effective since February 7, 2021, DC 5257 provides that recurrent subluxation or instability with 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.

One of the following: sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or device for ambulation OR unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribed either an assistive device or bracing for ambulation warrants a 20 percent rating.

Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation warrants a 30 percent rating.

Patellar instability with a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker warrants a 10 percent rating.

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: brace, cane, or walker warrants a 20 percent rating.

A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker warrants a 30 percent rating.

The Board has carefully reviewed the evidence and finds the evidence persuasively supports finding bilateral instability from February 2, 2013. Specifically, the evidence of record supports that the Veteran had knee instability from service and throughout the appeal period. For example, on the January 2013 discharge Report of Medical History, the Veteran reported sometimes wearing knee braces when running and hiking. On a January 2014 Correspondence, he explained that he has slight recurrent instability, and he must wear braces on both knees while running. On a July 2017 VA treatment record, the Veteran reported his left knee gives out on him sometimes.

The Board finds these reports of brace wearing to combat knee instability support a finding that slight knee instability was shown from service onward. Since the initial claim for service connection for bilateral knee disabilities was received within one year of service discharge, then the 10 percent rating for right and left knee instability are warranted from February 2, 2013, the day after discharge.

6. Entitlement to an initial rating in excess of 10 percent for left knee instability.

7. Entitlement to an initial rating in excess of 10 percent for right knee instability.

A February 2022 rating decision granted service connection for instability effective December 7, 2021, with 10 percent ratings assigned to each knee. As a result of this Board decision, the 10 percent ratings are warranted from February 2, 2013, the day after service discharge.

The Board has carefully reviewed the evidence and finds the evidence is persuasively against an evaluation
service discharge, then the 10 percent rating for right and left knee instability are warranted from February 2, 2013, the day after discharge.

6. Entitlement to an initial rating in excess of 10 percent for left knee instability.

7. Entitlement to an initial rating in excess of 10 percent for right knee instability.

The Board has carefully reviewed the evidence and finds the evidence is persuasively against an evaluation in excess of 10 percent for left and right knee instability. Specifically, the evidence is against moderate instability, sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or device for ambulation, and an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribed either an assistive device or bracing for ambulation. The Veteran has not undergone knee surgery, so an increased rating due to a diagnosed condition involving the patellofemoral complex is not available.

During the August 2013 VA examination, the examiner documented normal stability testing bilaterally. The examiner marked there was no patellar subluxation or dislocation.

During a December 2015 emergency room visit, the Veteran was assessed as a low fall risk, and psychotropics were noted to increase risk of falls. There were no falls in the previous three months. During a January 2016 caregiver assistance assessment, the Veteran was listed as a moderate fall risk with a risk of falling on the stairs. During an August 2016 VA emergency room visit, the Veteran met no criteria for falls.

The February 2017 private examiner documented the Veteran had moderate recurrent subluxation on the right and severe on the left. There was severe lateral instability bilaterally. The right knee demonstrated 2+ on anterior, posterior, and lateral instability and 3+ on medial instability testing. The left knee demonstrated 1+ on anterior, 2+ on posterior and medial, and 3+ on lateral instability testing.

During a July 2017 VA treatment record, the Veteran reported his knee gives out on him sometimes. The knees were noted to have no laxity and McMurray's testing was negative. During a February 2020 VA treatment record, the Veteran reported his left knee continues to have some issues and sometimes feels like it will buckle.

During the August 2021 VA examination, the examiner documented there was no recurrent subluxation or persistent instability. The Veteran did not have a prescription for an assistive device.

During a November 2021 emergency room visit, the Veteran was labelled as objectively not a fall risk.

During the December 2021 VA examination, the Veteran reported falling in June and October due to his right knee pain and instability, but he did not seek treatment. The examiner documented recurrent subluxation or persistent instability bilaterally, but the Veteran did not have patellar instability. All joint stability testing was normal bilaterally.

During the February 2022 VA examination, the Veteran reported falls because of left knee instability. The examiner reported there was a history of instability or recurrent subluxation but no patellar instability. The Veteran does not have a prescription for any assistive devices though he is noted as using a cane and brace occasionally. All stability testing was normal bilaterally except the Lachman test showed 1+ for the left knee.

As noted above, the February 2017 private examination is far out of line with other examinations and treatment records; therefore, its probative value is low. The evidence of record supports a finding that the Veteran has some intermittent fall risk which is, at least partially, attributable to medications for disabilities other than his knees. The Board finds this situation more closely approximates slight instability in both knees.

8. Entitlement to an initial rating in excess of 10 percent for right knee, limitation of extension prior to December 7, 2021, and in excess of 20 percent from December 7, 2021.

9. Entitlement to an initial rating in excess of 10 percent for left knee, limitation of extension prior to December 7, 2021, and in excess of 20 percent from December 7, 2021.

The Veteran was granted 10 percent ratings for left and right knee limitation of extension in a February 2022 rating decision, effective May 10, 2021, the date medical evidence documented compensable limitation of extension, and 20 percent ratings effective December 7, 2021, the date medical evidence documented limitation of extension
10 percent for right knee, limitation of extension prior to December 7, 2021, and in excess of 20 percent from December 7, 2021.

9. Entitlement to an initial rating in excess of 10 percent for left knee, limitation of extension prior to December 7, 2021, and in excess of 20 percent from December 7, 2021.

Under DC 5261, extension of the knee limited to 10 degrees warrants a 10 percent rating, extension of the knee limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, limited to 30 degrees warrants a 40 percent rating, and extension of the knee limited to 45 degrees warrants a 50 percent rating. See 38 C.F.R. § 4.71a, DC 5261.

Prior to December 7, 2021

The Board has carefully reviewed the evidence and finds the evidence is persuasively against evaluations in excess of 10 percent prior to December 7, 2021, for left and right knee limitation of extension. Specifically, prior to December 7, 2021, extension of either knee was not limited to 15 degrees.

The August 2013 VA examination documented 0 degrees of extension bilaterally with no objective evidence of painful motion. Repetitive use testing showed no loss of range of motion.

October 2016 and July 2017 VA treatment records documented normal range of motion bilaterally.

The August 2021 VA examiner documented active and passive extension to five degrees bilaterally. Repetitive use over time and range of motion during flare-ups was estimated as 10 degrees of extension.

The evidence does not show limitation of extension to 15 degrees warranting ratings higher than 10 percent prior to December 7, 2021.

From December 7, 2021

The Board has carefully reviewed the evidence and finds the evidence is persuasively against evaluations in excess of 20 percent from December 7, 2021, for left and right knee limitation of extension. Specifically, from December 7, 2021, extension of either knee was not limited to 20 degrees.

The Veteran underwent a VA examination in December 2021. Active and passive ranges of motion were 5 degrees of extension bilaterally. There was no additional loss of range of motion after repetitive use. Repeated use over time was estimated as 10 degrees of extension bilaterally. Flare-ups were estimated as 15 degrees of extension bilaterally.

The Veteran underwent a VA examination in February 2022. Active and passive ranges of motion were 0 degrees of extension on the left. There was no additional loss of range of motion after repetitive use. Repeated use over time was estimated as 5 degrees of extension on the left. Flare-ups were not reported.

The evidence does not show limitation of extension to 20 degrees warranting ratings higher than 10 percent from December 7, 2021.

Deluca

The Board has considered whether higher ratings should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, and DeLuca criteria, but higher ratings are not warranted for the Veteran's disability picture. See DeLuca, 8 Vet. App. at 206-07. VA treatment records submitted by the Veteran do not show functional loss from pain, weakness, or fatigability that is not contemplated by the current combined 30 percent rating per knee. The VA treatment records are similarly silent for a showing of knee ankylosis, flexion limited to 30 degrees or less, and malunion/nonunion of the tibia and fibula; moderate instability, sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or device for ambulation, or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribed either an assistive device or bracing for ambulation; or extension of the knee limited to 15 degrees prior to December 7, 2021 or extension limited to 20 degrees thereafter to include functional impairment that resembles that level of severity. The August 2013 VA examiner documented Muscle strength testing as 5/5, normal strength for both knees. The August 2021, December 2021, and February 202
tibia and fibula; moderate instability, sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or device for ambulation, or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribed either an assistive device or bracing for ambulation; or extension of the knee limited to 15 degrees prior to December 7, 2021 or extension limited to 20 degrees thereafter to include functional impairment that resembles that level of severity. The August 2013 VA examiner documented Muscle strength testing as 5/5, normal strength for both knees. The August 2021, December 2021, and February 2022 VA examinations documented there was no muscle atrophy.

The Veteran has attended physical therapy for the left and right knee strains. The Board finds that the combined 30 percent rating per knee already contemplates pain and how it affects the Veteran, such as difficulty walking long distances, standing for prolonged periods, or walking on the stairs because of pain. Although the Board is required to consider the effect of pain when making a rating determination, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997).

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After considering the effects of pain and functional loss, left and right strains are not manifested as knee ankylosis, flexion limited to 30 degrees or less, and malunion/nonunion of the tibia and fibula; moderate instability, sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or device for ambulation, or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribed either an assistive device or bracing for ambulation; or extension of the knee limited to 15 degrees prior to December 7, 2021 or extension limited to 20 degrees thereafter to warrant an increased rating for either knee.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether increased ratings for left and right knee disabilities are warranted under any DC. Rather, the evidence persuasively weighs against increased ratings. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021).

L. BARSTOW

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board P. McDaniels, 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.

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