Citation Nr: 1322302	
Decision Date: 07/11/13    Archive Date: 07/18/13

DOCKET NO.  09-36 126	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to a rating in excess of 10 percent for post-operative right knee with degenerative joint disease prior to December 14, 2010, and a rating in excess of 30 percent from February 1, 2012.  

2. Entitlement to a rating in excess of 10 percent for post-operative left knee with degenerative joint disease prior to July 5, 2011, and a rating in excess of 30 percent from September 1, 2012.  

3. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected bilateral knee conditions.  

4. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected bilateral knee conditions.   


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

C. Bruce, Counsel


INTRODUCTION

The Veteran served on active duty from July 1969 to October 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied service connection for lumbar and cervical spine conditions, continued a 10 percent rating for right knee degenerative joint disease, and granted a 10 percent rating for left knee degenerative joint disease effective from December 26, 2007.

In August 2011, the RO granted a 100 percent temporary total rating for the right knee effective from December 14, 2010, and a 30 percent rating from February 1, 2012. The RO also granted a 100 percent temporary total rating for the left knee from July 5, 2011, and a 30 percent rating from September 1, 2012. Because the 100 percent rating assigned for the Veteran's knee conditions represents the maximum available rating, those periods are no longer on appeal, and the issues have been recharacterized as above.

A Travel Board hearing was held in December 2012 with the Veteran in Winston-Salem, North Carolina, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file.

The above stated issues were remanded in April 2013 for additional development, that development having been achieved, the issues now return for appellate review. 

During the course of the appeal, service connection was granted for surgical scar of the right knee and surgical scar of the left knee.  Both claims were granted with a noncompensable evaluation effective from April 24, 2013.

The Veteran's Virtual VA file has also been reviewed as part of his appeal.


FINDINGS OF FACT

1. Prior to December 14, 2010, the Veteran's post-operative right knee with degenerative joint disease was manifested by, at worst, 8 degrees of extension and 100 degrees of flexion; subluxation and locking were not demonstrated.

2. From February 1, 2012, the Veteran's post-operative right knee with degenerative joint disease was manifested by a total knee replacement with intermediate degrees of residual weakness, pain and limited motion.

3. Prior to July 5, 2011, the Veteran's post-operative left knee with degenerative joint disease was manifested by, at worst, 5 degrees of extension and 105 degrees of flexion; instability, locking, and effusion were not demonstrated.

4. From September 1, 2012, the Veteran's post-operative left knee with degenerative joint disease was manifested by a total knee replacement with intermediate degrees of residual weakness, pain and limited motion.

5. The preponderance of the evidence is against a finding that a lumbar spine disability is related to service or was caused or aggravated by a service-connected disability.

6. The preponderance of the evidence is against a finding that a cervical spine disability is related to service or was caused or aggravated by a service-connected disability.


CONCLUSIONS OF LAW

1. Prior to December 14, 2010, the criteria for a rating in excess of 10 percent for Veteran's post-operative right knee with degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2012).

2. From February 1, 2012, the criteria for a rating in excess of 30 percent for Veteran's post-operative right knee with degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5055 (2012).

3. Prior to July 5, 2011, the criteria for a rating in excess of 10 percent for Veteran's post-operative left knee with degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5003-5260 (2012).

4. From September 1, 2012, the criteria for a rating in excess of 30 percent for Veteran's post-operative left knee with degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5003-5055 (2012).

5. The criteria for a grant of service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).

6. The criteria for a grant of service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and 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. See 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.

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 
The evaluation of evidence generally involves a three-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. See 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(a). 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. 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"); Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

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).

Duty to Notify and Assist

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) (2012).

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).

In February 2008, the RO provided VCAA notice with respect to the Veteran's claims for increased rating claims for the right and left knee. In cases like this one, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been substantiated, thereby rendering section 5103(a) notice no longer necessary because the purpose the notice is intended to serve has been fulfilled. See Dingess/Hartman v. Nicholson, 19 Vet.App. 473, 491 (2006).

The current appeal is a result of a notice of disagreement with the ratings assigned, and thus gives rise to no further duty to notify under VCAA. See 38 C.F.R. 
§ 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement).

With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA and private medical records, multiple lay statements, and multiple VA examination reports. 

In the April 2013 remand the Board requested that the RO/AMC obtain the Veteran's VA and private treatment records and afford him new examinations to include opinions with regard to the current severity of the Veteran's bilateral knee conditions as well etiology opinions for the lumbar and cervical spine claims. 

The record reflects that the Veteran's all additional treatment records were obtained and associated with his claims file. The VA examinations to include an opinion with regard to severity and opinions with regard to etiology were also obtained. Thus, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet.App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required).

The Veteran was provided with a VA examination in April 2013. The report of the examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination, and rendered an appropriate diagnosis consistent with the remainder of the evidence of record, and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board therefore concludes that the examination is adequate for rating purposes. See 38 C.F.R. § 4.2 (2012).

In Bryant v. Shinseki, 23 Vet App 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). At the December 2012 Travel Board hearing, the undersigned Veterans Law Judges and representative for the Veteran engaged in colloquies with the Veteran as to substantiation of the claims. The Veteran was asked about and provided testimony regarding the severity of his current bilateral knee condition as well as testimony regarding the etiology of his lumbar and cervical spine claims.  In particular he was asked to describe the effects of his knee disabilities on his cervical and lumbar spine claims.    

Neither the Veteran nor his representative has identified any prejudice in the conduct of the Board's December 2012 hearing or contended that the Veteran does not fully understand the issues or the evidence that is required to substantiate his claims. The Board finds that any error in notice provided during the Veteran's hearing constitutes harmless error. See 38 C.F.R. § 20.1102. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal.

All appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. 

All relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained.

Merits of the Claim

I.  Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012).
  
Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period.



VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered.

Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment).

The Veteran's left knee disability was rated under Diagnostic Code 5003-5260 prior to July 5, 2011. He was assigned a 10 percent rating in the November 2008 rating decision from December 26, 2007 until July 5, 2011. From September 1, 2012, he was assigned a 30 percent rating for his left knee under Diagnostic Code 5055.  The Veteran's right knee disability was rated under Diagnostic Code 5257. He was assigned a 10 percent rating prior to December 14, 2010.  From February 1, 2012, he has been assigned a 30 percent rating for his right knee under Diagnostic Code 5055.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.

There are several Diagnostic Codes applicable to the Veteran's claims. Under Diagnostic Code 5003, degenerative arthritis, when substantiated by X-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent disability rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. Note 1 accompanying Diagnostic Code 5003 states that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based upon limitation of motion. 38 C.F.R. § 4.71a (2012).

Diagnostic Code 5055 provides that knee replacements warrant a 100 percent rating for one year following implantation of the prosthesis. Following this one-year period, the minimum rating is 30 percent. A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residuals weakness, pain, or limitation of motion are rated by analogy to diagnostic codes 5256, 5261, or 5262. Id.

Diagnostic Code 5260 provides ratings based upon the limitation of flexion in the leg. A noncompensable rating is assigned when flexion is limited to 60 degrees. 10 percent rating is assigned when flexion is limited to 45 degrees. A 20 percent rating is assigned when flexion is limited to 30 degrees. A 30 percent rating is assigned when flexion is limited to 15 degrees. Id.

Diagnostic Code 5261 provides ratings based upon the limitation of extension in the leg. A noncompensable rating is assigned when extension is limited to 5 degrees. A 10 percent rating is assigned when extension is limited to 10 degrees. A 20 percent rating is assigned when extension is limited to 15 degrees. A 30 percent rating is assigned when extension is limited to 20 degrees. A 40 percent rating is assigned when extension is limited to 30 degrees. A 50 percent rating is assigned when extension is limited to 45 degrees. Id.

Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. Id.

The VA General Counsel held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (September, 2004).

Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability of the knee. A 10 percent rating is warranted for a slight knee disability. A 20 percent rating is warranted for a moderate knee disability. A 30 percent rating is warranted for a severe knee disability. 38 C.F.R. § 4.71a.

The Board observes that the words "slight," "moderate", and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

The VA General Counsel has also held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9- 98, (August, 1998). VA's General Counsel further explained that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Id. In this regard, in applying Diagnostic Code 5003, the Court has held in the case of Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), that "painful motion of a major joint . . . caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion." See also 38 C.F.R. § 4.59 (2012). 

Diagnostic Code 5258 provides that dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion into the joint is rated at 20 percent. 38 C.F.R. § 4.71a.

The Board notes there are other pertinent diagnostic criteria for rating knee disabilities. However, these criteria do not allow for ratings in excess of 10 percent, or the objective evidence of record does not contain any of the relevant findings: ankylosis of the knee (rated under Diagnostic Code 5256); removal of semilunar cartilage (rated under Diagnostic Code 5259); nonunion or malunion of the tibia and fibula (rated under Diagnostic Code 5262); or genu recurvatum (rated under Diagnostic Code 5263). 38 C.F.R. § 4.71a. As such, ratings under these Diagnostic Codes are not applicable.

The Veteran was afforded a VA examination for his knees in October 2008. The examiner noted that the Veteran tore his medial meniscus in his right knee in 1969 and medial meniscectomy in his left knee in 1974. The Veteran reported that both of his knees were increasingly painful and stiff. The Veteran reported he used both a brace and a cane when walking. There were no constitutional symptoms or incapacitating episodes of arthritis, but standing was limited to 10 minutes. The Veteran reported, giving way, instability, pain, stiffness, and weakness in both knees. He did not report dislocation, subluxation, or locking. The Veteran stated he had severe flare-ups on a weekly basis which resulted in 25 percent loss of range of motion. There was warmth, swelling, and tenderness in the Veteran's knees. Upon physical examination the right knee was limited to 8 degrees of extension, both active and passive motion, with pain beginning at 8 degrees. Flexion of the right knee was to 100 degrees, both active and passive motion, with pain starting at 100 degrees. Left knee extension was limited to 5 degrees on both active and passive motion, with pain beginning at 5 degrees. Flexion in the left knee was limited to 110 degrees both active and passive motion with pain beginning at 110 degrees. There was no additional loss of motion upon repetitive use. There was no inflammatory arthritis or joint ankylosis. There was bony joint enlargement bilaterally with crepitus, tenderness, and painful movement. On the right knee, there was evidence of effusion as well. It was noted both meniscus had been surgically removed and scars providing no functional impairment were present bilaterally. X-rays taken in conjunction with the examination revealed moderate to severe osteoarthritis bilaterally with possible loose bodies on the right knee. The Veteran was diagnosed with degenerative joint disease, bilateral knee, with torn meniscus status post meniscectomy and well healed surgical scar with no impairment. Functional impairment included difficulty maneuvering stairs, pain, and stiffness.

The Veteran was afforded a VA examination for his knees in April 2013. The Veteran was diagnosed with status post total knee replacement with residual scar. He underwent total knee replacement of the right knee in December 2010 and total knee replacement of the left knee in July 2011. He reported he was doing well since the knee replacements and had a good range of motion. Upon examination the Veteran had right knee flexion to 100 degrees without pain and extension to 0 without pain. He had left knee flexion to 105 degrees without pain and extension to 0 degrees without pain. Repetitive use testing with three repetitions revealed right knee flexion to 100 degrees, left knee flexion to 105 degrees, and bilateral extension to 0 degrees. Functional loss after repetitive motion was less movement than normal in both the right and left knee. There was no pain on palpation and muscle strength was normal. There was no joint instability or evidence of recurrent patellar subluxation or dislocation. The Veteran did not have pain, weakness, fatigability, or incoordination in his knees. The Veteran did not report any use of assistive devices. X-rays taken in conjunction with the examination revealed right knee total knee replacement without evidence of hardware complication, and left knee stable left total knee arthroplasty. There was no x-ray evidence of degenerative or traumatic arthritis or subpatellar subluxation. The examiner did note that the Veteran can only walk 100 yards before stopping to rest and can only climb two flights of stairs at a time. The Veteran could not squat or kneel.

With respect to the left knee, a rating in excess of 10 percent is not warranted prior to July 5, 2011. The October 2008 VA examination documented 5 degrees of extension and 110 degrees of flexion. A compensable level of limited motion requires either flexion limited to 45 degrees or extension limited to 10 degrees. Therefore, higher or separate ratings are not warranted under Diagnostic Codes 5260 or 5261.

A higher 20 percent rating under Diagnostic Code 5003 is only appropriate in the absence of any limitation of motion. However, as noted above, the Veteran's left knee disability is manifested by some limited motion, albeit not to a compensable level. Therefore, a higher rating is not warranted under Diagnostic Code 5003.

In addition, while the Veteran has a history of a left knee meniscal injury, the record does not reflect any complaints or findings of frequent episodes of locking and effusion in the left knee. Therefore, a higher rating under Diagnostic Code 5258 is not appropriate.

Instability in the left knee has also not been demonstrated. Notably the Veteran stated he had giving way, instability, pain stiffness, and weakness in both knees, there were no objective medical findings demonstrating any instability. Therefore, a rating under Diagnostic Code 5257 is not warranted.

From September 1, 2012, a rating in excess of 30 percent is not warranted for the Veteran's left knee disability. Under Diagnostic Code 5055, a minimum 30 percent rating is warranted following total knee replacement. The April 2013 examiner specifically noted that the residuals of this replacement consisted of flexion without pain to 105 degrees, extension to 0 degrees without pain, no joint instability, subluxation, or dislocation, and there was no additional functional loss. A compensable level of limited motion requires either flexion limited to 45 degrees or extension limited to 10 degrees. Therefore, higher or separate ratings are not warranted under Diagnostic Codes 5260 or 5261. These findings equate to intermediate degrees of weakness, pain and limited motion. This is consistent with the assigned 30 percent rating. The criteria for a higher 60 percent rating under Diagnostic Code 5055, chronic residual severe pain or weakness, are not objectively demonstrated.

With respect to the right knee, a rating in excess of 10 percent is not warranted prior to December 14, 2010. At worst, range of motion during the period on appeal was 8 degrees of extension and 100 degrees of flexion, even when accounting for painful motion and repetitive testing. A compensable level of limited motion requires either flexion limited to 45 degrees or extension limited to 10 degrees. Therefore, higher or separate ratings are not warranted under Diagnostic Codes 5260 or 5261.

A higher 20 percent rating under Diagnostic Code 5003 is only appropriate in the absence of any limitation of motion. However, as noted above, the Veteran's right knee disability is manifested by some limited motion, albeit not to a compensable level. In addition, while the Veteran has a history of a right knee meniscal injury, and there was some evidence of effusion noted on the October 2008 VA examination, the record does not reflect any complaints or findings of frequent episodes of locking in the right knee. Therefore, a higher rating under Diagnostic Code 5258 is not appropriate.

Instability in the right knee has also not been objectively demonstrated. Notably the Veteran stated he had giving way, instability, pain stiffness, and weakness in both knees, there were no objective medical findings demonstrating any instability. Therefore, a higher rating under Diagnostic Code 5257 is not warranted.  The Board notes that the Veteran's right knee was rated under Diagnostic Code 5257 with a 10 percent evaluation for slight lateral instability prior to December 14, 2010.

From February 1, 2012, a rating in excess of 30 percent is not warranted for the Veteran's right knee disability. Under Diagnostic Code 5055, a minimum 30 percent rating is warranted following total knee replacement. The April 2013 examiner specifically noted that the residuals of this replacement consisted of flexion without pain to 100 degrees, extension to 0 degrees without pain, no joint instability, subluxation, or dislocation, and no additional functional loss. A compensable level of limited motion requires either flexion limited to 45 degrees or extension limited to 10 degrees. Therefore, higher or separate ratings are not warranted under Diagnostic Codes 5260 or 5261. These findings equate to intermediate degrees of weakness, pain and limited motion. This is consistent with the assigned 30 percent rating. The criteria for a higher 60 percent rating under Diagnostic Code 5055, chronic residual severe pain or weakness, are not objectively demonstrated.

In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as knee pain and limited mobility. See, e.g., Layno v. Brown, 6 Vet.App. 465 (1994). The Board finds the Veteran to be credible in his reports of the symptoms he experiences. However, when viewed collectively with the medical evidence of record, the Veteran's account of his symptomatology describes ratings consistent with the assigned ratings.

II. Extraschedular Considerations

Under Floyd v. Brown, 9 Vet.App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration.

According to the regulation, an extraschedular disability rating is warranted upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet.App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet.App, 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.
First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.

Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."

Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The evidence does not reflect an exceptional or unusual disability picture with respect to the Veteran's service-connected bilateral knee disorders. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disability centers on his complaints of painful and limited range of motion. These symptoms are specifically contemplated under the assigned ratings criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule.

Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot.

The Board therefore has determined that referral of the case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.



III.  Service Connection

The Veteran seeks service connection for a lumbar and cervical spine disabilities that are the result of an accident during service or alternatively caused by or aggravated by his service-connected bilateral knee disabilities. There is no competent, probative evidence supporting his claims. The Board must deny his claims. 38 C.F.R. § 3.102.

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).

For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

Service connection may also be granted for a chronic disease, including arthritis, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 

In the April 2013 VA examination, the Veteran was diagnosed with degenerative arthritis of the lumbar spine, status post discectomy of L4-L5, with residual scar. The Veteran was also diagnosed with degenerative disc disease and degenerative arthritis of the cervical spine.

Service treatment records, including his May 1969 entrance examination and his October 1979 separation examination are absent any complaint of any low back or neck disorders. An August 1972 sick call report noted that the Veteran complained of a back ache, but the Veteran was assessed with a muscle spasm. There are no in-service complaints or diagnosis of a lumbar or cervical spine disorder. 

The Veteran testified in December 2012 that his altered gait caused by the pain resulting from his bilateral knee condition affected his lumbar and cervical spine disabilities. He stated that his private doctors told him that his knees disorder had caused his back disorder.

Private treatment records from the doctors referred to at the Veteran's hearing do not note any contentions that either his cervical spine or his lumbar spine are related to his knee disabilities.

The Veteran was afforded a VA examination for his lumbar and cervical spine in April 2013 to obtain an opinion regarding secondary service connection. After review of the claims file and a thorough examination, the VA examiner opined that the Veteran's degenerative arthritis of the lumbar spine was less likely proximately due to or the result of the Veteran's service-connected bilateral degenerative joint disease of the knees. The examiner further opined that the Veteran's degenerative arthritis of the lumbar spine was not aggravated beyond its natural progression by the Veteran's service-connected bilateral knee condition. The examiner's explanation was that the Veteran had denied any falls related to his knees which resulted in a back injury and absent any actual falls, there was no established causal relationship between degenerative joint disease of the knees and degenerative arthritis of the lumbar spine. Degenerative arthritis of the lumbar spine is caused by direct trauma or injury to the lumbar spine, obesity, or aging. 

The examiner also opined that the Veteran's degenerative disc disease and degenerative arthritis of the cervical spine was less likely than not proximately due to or the result of the Veteran's service-connected bilateral degenerative joint disease of the knees. The examiner also stated that the Veteran's degenerative arthritis and degenerative disc disease of the cervical spine were not aggravated beyond their natural progression by the Veteran's service-connected bilateral knee condition. The examiner's explanation was, again, that the Veteran had denied any falls related to his knees that resulted in a neck injury and absent any actual falls, there was no established causal relationship between degenerative joint disease of the knees and degenerative arthritis and degenerative disc disease of the cervical spine. Degenerative arthritis and degenerative disc disease of the cervical spine are caused by direct trauma or injury to the cervical spine or the aging process.

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert, denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet.App. 362, 367 (2001). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet.App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet.App. 67, 74 (1997). 




Lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In addition, credibility of lay evidence can be affected and even impeached by factors such as inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record. See Macarubbo v. Gober, 10 Vet. App. 388 (1997).

Laypersons are generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). As a lay person, the Veteran is not competent to provide evidence as to complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

In light of the Veteran's contentions regarding in-service incurrence of a back disorder, October 1979 service department physical examination is highly probative both as to the Veteran's subjective reports and the resulting objective findings. Both the medical history questionnaire and the report of medical history were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). With regard to the Veteran's claims for cervical and lumbar spine disabilities, the Board finds that the lay statements as to a nexus are outweighed by the probative medical evidence of record which does not indicate any evidence of in-service incurrence of a lumbar or cervical spine disabilities. 

The Veteran is not competent to determine that a disorder is etiologically caused by another disorder. The possibility of a causal relationship between one disability and another requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions on etiology. Only a medical professional can provide evidence of a diagnosis or etiology of a disease or disorder as related to another disorder. Thus, the Veteran's statements are afforded no probative value with respect to the medical question of whether he suffers from cervical and lumbar spine disabilities that are related to his service-connected bilateral knee disabilities.

The April 2013 VA examiner's addendum opinion is the most probative medical evidence addressing the etiology of the Veteran's disorders, because it is clearly factually informed, medically based and responsive to this inquiry. The examiner provided a full and complete explanation for his opinion which was based on a review of the file. The examiner reviewed the Veteran's medical history and determined that his lumbar and cervical spine disabilities were not related to his service-connected disabilities as his knee disabilities had not caused a fall leading to direct trauma to the lumbar or cervical spine. As held by the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases). As the April 2013 VA examiner's opinion is based upon an evaluation of the Veteran and review of the claims folder, the Board finds that it is entitled to the most weight regarding the etiology of the Veteran's lumbar and cervical spine conditions. The opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995).

Most critically, the Veteran's essential contention of a nexus between the in-service incurrence, or alternatively caused by his service-connected knee disabilities and any current diagnoses of lumbar or cervical spine conditions has been fully investigated as mandated by the Court's decision in Jandreau. The Board finds the evidence against the claim to be more probative than the evidence in favor of the claim. Therefore, the Veteran's claim for service connection for a lumbar spine disability and service connection for a cervical spine disability must be denied. 


ORDER

An increased rating in excess of 10 percent for post-operative right knee with degenerative joint disease prior to December 14, 2010, is denied.

An increased rating in excess of 30 percent for post-operative right knee with degenerative joint disease from February 1, 2012, is denied.  

An increased rating in excess of 10 percent for post-operative left knee with degenerative joint disease prior to July 5, 2011, is denied.  

An increased rating in excess of 30 percent for post-operative left knee with degenerative joint disease from September 1, 2012, is denied.

Service connection for a lumbar spine disability, to include as secondary to service-connected bilateral knee conditions is denied.  

Service connection for a cervical spine disability, to include as secondary to service-connected bilateral knee conditions is denied.



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs