Citation Nr: 1134827	
Decision Date: 09/16/11    Archive Date: 09/23/11

DOCKET NO.  07-24 590	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to an initial disability rating in excess of 10 percent for a back disability.

2. Entitlement to service connection for a left knee disability.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission



WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

Jebby Rasputnis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1998 to August 2002 and from June 2004 to April 2005. His awards and decorations include the Combat Action Ribbon.

These matters were last before the Board of Veterans' Appeals (Board) in July 2010 on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board remanded the claim for additional development to include the provision of VA examinations.

In this decision, the Board will find that the Veteran failed to report for the scheduled VA examinations without good cause. When, as here, a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655 (2010).


FINDINGS OF FACT

1. The Veteran did not report for a VA examination scheduled for July 19, 2011.

2. The Veteran has not provided any evidence or argument as to his failure to report for the July 19, 2011; he has not shown any cause for failing to report.

3. In January 2007, the Veteran had full range of flexion and extension in his back, but experienced intermittent back pain.

4. In August 2007, his forward flexion was measured from zero (0) to 70 degrees with extension from 0 to 15 degrees; pain was constant during motion, but increased at the extreme range of motion. 

5. In October 2008, the Veteran's back flexion was measured at 0 to 65 degrees without pain and pain to 75 degrees; extension was measured to 25 degrees. 

6. The record does not reflect that the Veteran has experienced hospitalization for his back disability or reflect that disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards.  

7. The Veteran is competent to report the circumstances of his service and his medical symptoms, but his testimony is not credible.

8. The preponderance of the evidence is against a finding that the Veteran has a left knee disability as the result of his active duty service.


CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 10 percent for the Veteran's back disability are not met. 38 U.S.C.A. § 1155, 5107  (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.71, 4.71a, Diagnostic Code 5237 (2010).

2. The Veteran has not presented evidence such that referral for the assignment of an extraschedular rating, for his back disability, pursuant to 38 C.F.R. § 3.321(b)(1), is warranted. 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 3.326 (2010).

3. The criteria for the establishment of service connection for a left knee disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304 (2010).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board will discuss the relevant law which it is required to apply.  This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).


Duties to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b);  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  See 38 C.F.R. § 3.159(b)(1).

May 2005 and December 2006 pre-adjudication letters explained the evidence necessary to substantiate a claim for service connection.  Although the Veteran was notified in May 2008 of the requirements to establish entitlement to an increased rating, the VA General Counsel has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of this information for newly raised or "downstream" issues, such as claims for increased compensation following the initial grant of service connection for a disability, in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice.  See VAOPGCPREC 8-2003 (Dec. 22, 2003).  An October 2008 reiterated the evidence necessary to substantiate a claim  for service connection and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006).  This letter was provided to the Veteran after the initial adjudication of his claims in contravention of Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, his claims were readjudicated in December 2008 and June 2011 supplemental statements of the case which "cured" any timing error. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  

VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims. The claims file contains service treatment records, reports of post-service medical treatment, and reports of January and August 2007 and October 2008 VA examinations. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The August 2007 VA examination report does not reflect review of the claims file, but it does reflect examination of the Veteran and description and evaluation of the claimed disabilities. The reports from the other examinations do reflect review of the claims file and, as all of the examination reports reflect interview with, and examination of, the Veteran, the Board finds them cumulatively adequate as to the issues decided herein. Although the last VA examination of the Veteran's back is dated more than two (2) years ago, the Veteran failed to appear for a more recent examination so his claims will be decided on the basis of the evidence of record. 38 C.F.R. § 3.655.

As stated above, these claims were remanded in July 2010. In 2010, the Board directed that the RO/AMC ask the Veteran to provide additional information as to any private medical treatment and that the Veteran be afforded additional VA examinations. A letter was mailed to the Veteran in later July 2010 asking him to submit information about additional private treatment and informing him that he would be contacted by the RO about additional examinations. He did not respond to the letter and the record further reflects that the RO confirmed the Veteran's contact information and scheduled examinations, but the Veteran failed to appear. The Veteran has not provided any explanation for his failure to appear. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's failure to reply to VA notices and to attend a scheduled VA examination constituted a failure to cooperate in the development and adjudication of his claim. His claims will be decided on the basis of the evidence already within the record. See 38 C.F.R. § 3.655.

As the claims file reflects that the RO/AMC took steps to complete the Board's directives, either completing them in full or documenting why full completion - in regard to the Veteran's failure to respond to the July 2010 letter and failure to appear for the additional examinations - was not possible, the Board finds that the development directed in the prior remands has been substantially completed.  Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that substantial compliance, not absolute compliance, is required).

The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the particular claims on appeal.  He has been given ample opportunity to present evidence and argument in support of his claims. As such, and pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues has been obtained and the case is ready for appellate review. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2010).

Increased Rating - Back

Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4.

In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. §§ 4.2, 4.41. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities.  

The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. 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.

Where, as in the case of the Veteran's claim, the claimant appeals the initial rating given at the time service connection was established, in assigning the initial rating, the Board must consider the propriety of assigning one or more levels of rating -"staged" ratings- from the initial effective date forward, based on evidence as to the severity of disability. See Fenderson v. West, 12 Vet. App. 119, 126-7 (1999).  Thus, in deciding the claim below, the Board has considered whether different ratings may be warranted for different time periods based on the evidence of record.  

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appeal. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

 (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).   

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

Ratings shall be based, as far as practicable, upon the average impairments of earning capacity; however, the Secretary shall, from time to time, readjust this schedule of ratings in accordance with experience. To accord justice in an exceptional case in which the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1).

Following September 26, 2003, the diagnostic codes for rating diseases and injuries of the spine were re-designated as Diagnostic Codes 5235 to 5243.  Lumbosacral or cervical strain is Code 5237 and intervertebral disc syndrome is Code 5243. The Veteran has been diagnosed with a low back strain. As his disability is clearly encompassed by Code 5237, the Board finds that analysis of the disability under other codes is not appropriate. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  The evaluation of the same disability under various diagnoses is to be avoided; disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation.  The use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses, or "pyramiding" of ratings, are to be avoided.  38 C.F.R. § 4.14.
  
Under Code 5243, intervertebral disc syndrome is rated either under the General Rating Formula for Diseases and Injuries of the Spine appropriate to the specific portion of the spine affected or under the Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation.  However, this provision does not avail the Veteran in this matter, as the regulation provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician (italics added for emphasis). 38 C.F.R. § 4.71a, Diagnostic Code 5243.  The record does not reflect such medical directives to the Veteran during the appellate period.  

The general rating formula provides for the following disability ratings for diseases or injuries of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  It applies to Codes 5235 to 5243 unless the disability rated under Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

Under the general rating formula for diseases and injuries of the spine, ratings are assigned as follows:

1) 10 percent--forward flexion of the thoracolumbar spine, greater than 60 degrees, but no greater than 85 degrees; or a combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.

2) 20 percent - forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphyosis;

3) 30 percent - forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine;

4) 40 percent - unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 2.  The normal combined range of motion of the cervical spine is 240 degrees and each range of motion measurement is rounded to the nearest five degrees.  Id.  Disability of cervical spine segments is to be evaluated separately from any disability of the thoracolumbar spine segments unless there is unfavorable ankylosis of all segments.  Id., Note 6. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately.  Id., Note 1.

Service treatment records reflect that the Veteran began to experience back pain in 2004. During service he was treated for back pain with a rotational component localized at the T-4 region. Post-service treatment records from the Veteran's private physician reflect that he continued to experience mid-back discomfort. An x-ray of the Veteran's spine showed a subtle, minimal degree of right lateral deviation and he was diagnosed with mid-thoracic pain involving the left paraspinal area. He was advised to continue conditioning his back muscles and was given pain medication. 

The Veteran was afforded a VA examination in January 2007. He informed the examiner that he had experienced a tight, pulling pain in his low back since 2004. He described the pain as intermittent with five (5) to six (6) flare-ups a day due to prolonged walking. The examiner noted no associated neurological problems and stated that the Veteran was able to walk unassisted and did not wear a brace. There was no noted effect of the disability on the Veteran's occupation. Full forward flexion (to 90 degrees) and extension (to 30 degrees) was noted with pain near the end ranges of motion. There was no change in motion upon repeated testing. The examiner did observe tenderness at the right sciatic notch, but no spasm or guarding. The Veteran's gait was normal. X-ray of the back revealed only an incidental finding of spina bifida occulta at S-1. The Veteran was diagnosed with a back strain.

A February 2007 rating decision granted entitlement to service connection for a back disability and assigned a non-compensable rating. The Veteran submitted a notice of disagreement to that rating. He contended that the examiner did not take into account the "number of times [he] must pop his back to relieve the pressure/pain."

He was afforded another examination in August 2007. The resulting report reflects that the Veteran stated he experienced mid-to-low back pain with occasional radiation into his legs. The Veteran described the pain as constant at a level one intensity. He stated that pain could flare to a level five intensity with certain activity and that he was unable to bend over or walk without pain during a flare. No numbness, weakness, bowel/bladder complaints, or erectile dysfunction was noted and the Veteran did not use a brace or any assistive devices. The examination report states that the Veteran had not lost any time from his education or employment due to the back disability. His forward flexion was measured from zero (0) to 70 degrees with extension from 0 to 15 degrees. Pain was constant during motion and increased at the extreme range of motion. There was no change in pain or range of motion after repeated movement. The examiner noted no spasm or guarding and observed that the Veteran had normal spinal contour and normal gait. The examiner diagnosed a lumbosacral strain.

A June 2007 rating decision assigned the Veteran an initial 10 percent disability rating for his back. The Veteran wrote to VA in November 2007 and contended that his back symptoms were more severe than as reflected by a 10 percent rating.

Another VA examination was held in October 2008. The report reflects that the Veteran indicated he did not experience any radiating pain from his back. He reported not being able to exercise due to his back and wearing a brace during activities. The examiner noted that the Veteran's gait was normal. His flexion was measured at 0 to 65 degrees without pain and with pain to 75 degrees. Extension was measured to 25 degrees. His lumbar curve and gait were normal, but the examiner noted an increase in paraspinous muscle tone on the right side. He was diagnosed with chronic lumbosacral sprain with moderate symptoms and minimal disability. The examiner noted no incapacitating episodes. X-ray revealed normal disc spaces, well-aligned vertebrae, normal sacroiliac joints, and no evidence of spondylolysis, spondylolisthesis, or compression fractures.

In May 2010, the Veteran testified before the below-signed. He testified that he experienced four (4) to five (5) spasms of back pain every day, but had not needed to take any time off of work due to that disability. However, he reported that he would do more strenuous activities at work if he did not experience back disability.

As detailed above, in January 2007, the Veteran had full range of flexion and extension in his back, but experienced intermittent pain. However, at the August 2007 examination, the Veteran demonstrated a loss of range of motion. Specifically, his forward flexion was measured from zero (0) to 70 degrees with extension from 0 to 15 degrees. Pain was constant during motion, but increased at the extreme range of motion. In October 2008, the Veteran's back flexion was measured at 0 to 65 degrees without pain and pain to 75 degrees; extension was measured to 25 degrees.

A 10 percent disability rating is appropriate when there is forward flexion of the thoracolumbar spine greater than 60 degrees, but no greater than 85 degrees. This level of rating is also appropriate when there is a combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. No examiner has observed any guarding, but the Veteran has reported muscle spasm, and examinations have revealed tenderness. His flexion has never been measured at less than 60 degrees.

The orthopedic manifestations of the back disability are appropriately rated at 10 percent. A higher disability rating is not warranted unless there is forward thoracolumbar flexion less than 60 degrees or forward cervical flexion less than 30 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphyosis. The Veteran does not manifest any symptoms or measurements described by the 20 percent rating.

The Board has considered whether the consideration of a higher rating is appropriate based on evidence of pain, weakened movement, excess fatigability, or incoordination.  See 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. 202.  However, under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, disability ratings are to be assigned without regard to pain, stiffness, and aching. Further, no examiner has observed any additional loss of range of motion due to pain with repeated movement. As such, the Board does not find that a higher disability rating based on 38 C.F.R. § 4.40 and DeLuca is warranted.  

As there is no basis for assigning an increased rating, there is no evidentiary basis for assigning a staged rating pursuant to Hart. Further, he has not been diagnosed with any associated objective neurologic abnormalities so there is no basis for assigning a separate evaluation. Id., Note 1. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as there is no evidence of any incapacitating episodes and his forward flexion has never measured less than 60 degrees during the appellate period, the preponderance of the evidence is against the assignment of any higher rating and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990).

The above determination is based upon consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds that there is no objective evidence showing that, during the period under consideration, the Veteran's service-connected back disability has reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b).  

In this case, there is no evidence of any hospitalization associated with the disability in question. Although the Veteran has indicated that his back disability limits his work activities by, as he testified in May 2010, preventing his assignment to more rigorous duties, there is no objective evidence in the claims file that his back disability markedly interferes with his ability to work, above and beyond that contemplated by his separate schedular ratings. See 38 C.F.R. § 4.1 (indicating that generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability).  

All of the VA examination reports reflect that, despite his disability, the Veteran continues to go work and is able to perform his job. In the absence of objective evidence of any of the factors outlined above, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) have not been met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the Veteran experiences some occupational impairment, "the criteria reasonably describe[s] the claimant's disability level and symptomatology" and, as such, "the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required."  Thun, 22 Vet. App. at 115.  

Service Connection

The Veteran has contended that he experiences a left knee disability as the result of an in-service incident. Specifically, he contends that he was fast-roping off a tower in 2000 when he landed and felt a pop in his left knee. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, a veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise.  It is only when the weight of the evidence is against a veteran's claim that the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49.

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the preponderance of the evidence is against the claim and, as such, it must be denied.  38 U.S.C.A. § 5107(b); Alemany, 9 Vet. App. 518; Brown, 5 Vet. App. 413 (Under the "benefit-of-the-doubt" rule, only where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza, 7 Vet. App. at 506; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.  

Demonstration of continuity of symptomatology is an alternative method of establishing the second and third Shedden/Caluza element under 38 C.F.R. § 3.303(b).  Barr, 21 Vet. App. 303; see Savage v. Brown, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  

Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  

The Veteran's service treatment records reflect that he had no knee complaints at the time of his entry into active duty service in 1998. However, service treatment records reflect a knee injury in the year 2000. Specifically, an April 6, 2000 service treatment note states that the Veteran was seen for complaints of left knee pain and reported that he was fast-roping and experienced a popping in his left knee upon landing. His left knee was described as tender to palpation with slight edema and restricted range of motion due to pain. He was diagnosed with a lateral collateral ligament sprain without any increase in laxity. Two (2) April 7, 2007 service treatment notes refer to the same injury, but in regard to the Veteran's right knee. The health care providers noted some increase in laxity and the treatment notes reflect that the Veteran was unable to bear full weight on his right knee. An April 2007 diagnostic note from HealthSouth Rehabilitation Center again refers to a right knee injury/disability. April and May 2007 physical therapy notes from HealthSouth show rehabilitation services were provided for the right knee.

On a February 2002 dental health questionnaire, the Veteran reported that he had painful joints, specifying "knee-shoulder" pain. The report of a July 2002 separation examination observes a prior injury to the left knee, specifically a strain to the lateral collateral ligament. The examination report states that the left knee was stable at that time and the Veteran denied any sequelae from the injury. On an October 2002 self report of medical history, the Veteran reported no knee trouble and a physician's assistant noted that he had no physical complaints. 

Periodic examinations conducted in January and June 2003 were normal. The Veteran did not report any knee disability on a January 2003 self report of medical history. On a March 2005 dental health questionnaire, he indicated that he did not have any painful joints.

The Veteran submitted an August 2006 claim for service connection for a left knee disability.  In November 2007, he reported that he experienced a knee disability as the result of a fall from a 65 foot repelling tower and aggravated that injury by further physical activity during service.

He was afforded a VA examination in October 2008.  The examiner noted that the Veteran reported falling a distance of 20 feet from a roping exercise. Upon examination, the examiner observed some crepitus in the left knee with a zero to 135 degree range of motion. The examiner diagnosed chronic left knee sprain with minimal physical findings of abnormality. X-ray showed no fracture or dislocation, no joint effusion, and no degeneration. In December 2008, the examiner provided an addendum to the examination report stating that the left knee disability was not likely related to the in-service knee injury.

In May 2010, the Veteran testified that he injured his left knee during service. He stated that he was fast-roping off of a tower, landed "wrong," and felt a pop in the lateral collateral ligament of his left knee. He reported that he required several months to recover from the injury. The Veteran testified that he experiences pain and limitation of motion in his left knee as a result of the in-service injury. Although he is competent to report these symptoms, per Layno v. Brown, 6 Vet. App. 465 (1994), he is not, as a layperson, competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition.  Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). 

Whether lay evidence is competent and sufficient in a particular case is a fact issue.  Jandreau, 492 F.3d 1372. A veteran is competent to report the circumstances of his service, 38 C.F.R. § 3.159(a)(2), and the Veteran has reported injuring his left knee during a fast-roping exercise in 2000. Service treatment records reflect that he was treated for a knee injury in 2000, but do not clearly reflect which knee was injured. Specifically, an initial treatment note and a July 2002 examination indicate that the left knee was injured, but all of the other treatment records show treatment for a right knee disability. VA examination resulted in a diagnosis of chronic left knee strain.

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has explicitly rejected the view that "competent medical evidence is required ... [when] the determinative issue involves either medical etiology or a medical diagnosis."  Davidson, 581 F.3d 1313; see also Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.").  However, after a determination of competence is made, the Board is obligated to determine whether lay evidence is credible.  See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994).  It is the responsibility of the Board to assess the credibility and weight to be given the evidence.  Wood, 1 Vet. App. at 192-93.  

Here, the Veteran is competent to report the circumstances of his service, but his lay testimony of the circumstances of the injury are not consistent. Specifically, he has reported simply landing "wrong" while fast-roping, falling 20 feet from the rope and injuring his left knee, and falling off of a 65 foot fast-roping tower and injuring his left knee. Further, he testified that he required several months to recover from the injury, but still had difficulty keeping up with other service-members and experienced aggravation of the injury during later service activities. However, service records show that that he did have any knee-related complaints in October 2002, January 2003, and March 2005.

Although, per Davidson, the Board cannot find his lay evidence not credible solely on the basis of the lack of service treatment records, in the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza, 7 Vet. App. 498; see Madden, 125 F. 3d at 1481 (Holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran is competent to report the circumstances of his service, but the Board finds his testimony not credible based on the inconsistency in the service treatment records as to which knee was treated for injury and based on his varying reports as to continuity of left knee symptomatology. See Caluza, 7 Vet. App. 498. Although the Court held in Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) that VA cannot ignore a veteran's testimony, a veteran's personal interest may affect the credibility of the evidence. 

Further, the 2008 VA examiner opined that any current left knee disability was not likely due to the in-service injury alleged by the Veteran. Although the Board directed in 2010 that another VA examination be performed for a more thorough opinion, the Veteran did not appear for that examination so his claim will be rated on the evidence of record. 38 C.F.R. § 3.655. Thus, the most persuasive and competent evidence of record does not support the Veteran's claim of entitlement to service connection for a left knee disability. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood, 1 Vet. App. at 192-93); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board).  






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There are no medical opinions of record to support the Veteran's claim and service treatment records do not clearly reflect that his left, rather than right, knee was injured during service. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application.  See 38 U.S.C.A.§ 5107(b);  Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The claim must be denied.


ORDER

Service connection for a left knee disability is denied.

An initial disability rating in excess of 10 percent for a back disability is denied.




____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs