Citation Nr: 1507989 Decision Date: 02/24/15 Archive Date: 02/26/15 DOCKET NO. 13-03 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder secondary to service-connected degenerative joint disease of the right knee. 2. Entitlement to a disability rating higher than 10 percent for degenerative joint disease of the right knee. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to October 1980, with subsequent additional periods of active and inactive duty for training. This matter comes before the Board of Veterans' Appeals (Board) from a November 2012 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, in which the RO denied the Veteran's claims. FINDINGS OF FACT 1. The Veteran's osteoarthritis of the lumbar spine was not caused or made worse by service-connected degenerative joint disease of the right knee. 2. The Veteran's degenerative joint disease of the right knee has been manifested by subjective complaints of pain, swelling, stiffness, and weakness; objective findings reflect pain on motion, tenderness, and chronic limitation of motion limited to no worse than 10 degrees of extension and 100 degrees of flexion. CONCLUSIONS OF LAW 1. The Veteran's osteoarthritis of the lumbar spine is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. § 3.310 (2014). 2. The criteria for a disability rating higher than 10 percent for service-connected degenerative joint disease of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, the Board notes the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2014). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. In this respect, through a September 2012 notice letter, the Veteran received notice of the information and evidence needed to substantiate his claims. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claims. The Board also finds that the September 2012 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice must inform the claimant 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 Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned September 2012 letter. Further, the Veteran was provided notice in that letter regarding an award of an effective date and rating criteria. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claims on appeal. To that end, the Veteran's service treatment records, as well as post-service treatment records from VA treatment providers, have been obtained and associated with the Veteran's claims file. Records from the Veteran's application for Social Security Administration (SSA) benefits have also been associated with the claims file. The Veteran also underwent VA examinations in October 2012 and January 2013; reports of these examinations are of record. To that end, 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). Here, the Board finds that the VA examinations and opinions obtained in this case are adequate, as they are predicated on full physical examination as well as consideration of the medical records in the claims file and the Veteran's reported history. The examinations considered all of the pertinent evidence of record, to include statements given by the Veteran, and provide explanations for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Additionally, the Veteran and his representative have both submitted written argument. Otherwise, neither the Veteran nor his representative has alleged that there are any outstanding records probative of the claims on appeal that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis A. Service Connection Claim In his initial claim for VA benefits, the Veteran indicated that he believed he developed a lumbar spine disorder secondary to degenerative joint disease of the right knee. The Board will thus address the claim for service connection for a lumbar spine disorder on a secondary basis. Service connection may be granted for a disability that is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2014). This includes a disability made chronically worse by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Relevant medical evidence consists of the Veteran's service treatment records, as well as his post-service treatment at VA facilities. The Veteran's service records indicate that he was seen in May 1980 for complaints of low back pain after lifting a heavy box; he was seen for follow-up the next month with the same diagnosis. He complained of recurrent back pain at reports of medical history concluded in October 1976 and August 1980, but medical examinations conducted at both occasions did not find any abnormalities of the spine or musculoskeletal system. At a later medical evaluation conducted in March 1997, the Veteran was again found to have no abnormalities of the spine or musculoskeletal system; at that time he denied experiencing any recurrent back pain. Post-service treatment records reflect that the Veteran complained to his SSA examiner in 2012 of experiencing back pain; x-rays conducted in July 2012 found only mild osteoarthritis of the lumbar spine. Similarly, the Veteran was first noted to complain of low back pain to VA treatment providers in 2012 and has continued to seek treatment since that time. Report of the October 2012 VA medical examination reflects that the examiner noted the Veteran's long post-service history of work as a construction worker, as well as his report of having developed chronic back pain only three years prior. The examiner diagnosed the Veteran with osteoarthritis of the lumbar spine but opined that the disorder had not been caused or aggravated by his service-connected right knee disability. In so finding, the examiner noted, first, that the Veteran had "general arthritis" and was 60 years of age at the time of diagnosis. The examiner also noted the Veteran's extensive post-service employment as a construction worker, as well as the fact that his back pain had begun only three years prior, in finding that any etiological relationship between his lumbar spine disorder and his right knee degenerative joint disease was doubtful. The examiner reiterated these findings in the January 2013 VA examination, again noting the Veteran's advanced age, his "general arthritis," and his long history of construction work in rendering a negative opinion. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a lumbar spine disorder on a secondary basis. The Board finds that the greater weight of the medical evidence is against a finding of a link between the Veteran's current lumbar osteoarthritis and his service-connected degenerative joint disease of the right knee. Because the question of whether a disability such as osteoarthritis of the lumbar spine is related to another disorder such as degenerative joint disease of the knee is a medical question requiring expertise, the Board relies upon the VA examiner's opinions as set forth in October 2012 and January 2013. The examination reports reflect that the examiner reviewed the Veteran's claims file and understood the medical questions asked by the originating agency. Additionally, the VA examiner offered rationales for his opinions that the Veteran's osteoarthritis of the lumbar spine is not likely related to service-connected degenerative joint disease of the right knee, relying on the medical records and his medical expertise, as well as the Veteran's' reported history. Specifically, in his October 2012 opinion, the VA examiner noted that the Veteran had a long history of post-service work in construction but only a three-year history of low back pain, as well as "general arthritis" In his opinions, the examiner specifically found there to be no etiological relationship-neither causation nor aggravation-between the Veteran's lumbar spine osteoarthritis and his degenerative joint disease of the right knee. Furthermore, the Board finds persuasive the absence of medical evidence to support a finding of a nexus between the Veteran's service-connected degenerative joint disease of the right knee and his osteoarthritis of the lumbar spine. In so finding, the Board notes that the opinions of the VA examiner in October 2012 and January 2013 are uncontradicted by any medical evidence of record. Although the Veteran has contended that he currently suffers from osteoarthritis of the lumbar spine that resulted from, or was aggravated by, his service-connected degenerative joint disease of the right knee, the October 2012 and January 2013 VA examiner's opinions conclude that such an etiological relationship is unlikely, offering a clear explanation that the disorder is more likely due to the Veteran's' advancing age, his "general arthritis," and his long post-service history as a construction worker. The Board thus finds that the October 2012 and January 2013 VA examiner's statements regarding the likelihood of an etiological relationship between the Veteran's lumbar spine osteoarthritis and his service-connected degenerative joint disease of the right knee are of sufficient evidentiary weight to render a determination in this case. The Board has considered the Veteran's contentions that his lumbar spine osteoarthritis developed secondary to, or was aggravated by, his service-connected degenerative joint disease of the right knee. However, as a layperson, the Veteran has no competence to give a medical opinion on a complex question of etiology such as whether his symptoms of right knee degenerative joint disease either caused or worsened lumbar spine osteoarthritis. Thus, although the Veteran is competent to report symptoms observable to a layperson, such as pain, a diagnosis that is later confirmed by clinical findings, or a contemporary diagnosis, he is not competent to independently opine as to the specific etiology of a condition such as osteoarthritis of the lumbar spine. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection in this case. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). In addition, while the Veteran is competent to report the symptoms he experienced, his assertions and reported history were considered by the VA examiner who provided the opinions that his lumbar spine osteoarthritis was not caused or aggravated by his service-connected degenerative joint disease of the right knee. Thus, the Veteran's own assertions as to the etiology of his lumbar spine disorder have little probative value. In reaching its conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim of secondary service connection for a lumbar spine disorder, that doctrine is not helpful to the claimant. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Claim for Increase The Veteran contends that his degenerative joint disease of the right knee has been more disabling than indicated by the assigned rating. He therefore contends that a higher rating is warranted. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2014). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2014). The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. The United States Court of Appeals for Veterans Claims (Court) has held that consideration of the appropriateness of a staged rating is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2014); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In VA Fast Letter 06-25 (November 29, 2006), VA's Compensation & Pension Service noted that to properly evaluate any functional loss due to pain, examiners, at the very least, should undertake repetitive testing (to include at least three repetitions) of the joint's range of motion, if feasible. It was determined that such testing should yield sufficient information on any functional loss due to an orthopedic disability. Additionally, under VAOPGCPREC 9-2004 (September 17, 2004), separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for limitation of flexion and limitation of extension of a single knee joint. The relevant medical evidence consists of a VA examination conducted in October 2012, as well as records of the Veteran's ongoing treatment with VA treatment providers. At the October 2012 examination, the Veteran complained of pain in his right knee that had grown increasingly worse over the past several years and limited his walking to less than one block and standing to less than 10 minutes. He was noted to use a cane for ambulation. Pain was noted on physical examination, but no instability, subluxation, or laxity was found. Range of motion of the knee was found to be flexion to 100 degrees and extension to 0 degrees, with pain at the endpoints of motion. No additional limitation was found on repetition. Radiological examination revealed degenerative changes, and the examiner diagnosed the Veteran with osteoarthritis of the right knee. Records of the Veteran's ongoing treatment with VA treatment providers reflect that he has consistently sought treatment for his knee problems, including attending physical therapy for his right knee on several occasions. At one such appointment, in June 2012, he was noted to have range of motion of extension to 8 degrees, with flexion to 118 degrees. At a follow-up physical therapy appointment in July 2012, the Veteran was noted to have flexion limited to 10 degrees when walking. However, at later VA treatment visits, including an appointment in February 2013, the Veteran was found to have a full range of motion of the right knee. In addition to the medical evidence, the Veteran has submitted statements in support of his claim. Each of these statements reflects complaints similar to those reported at the VA examination. Under rating criteria pertaining to limitation of motion of the knee, a 10 percent disability rating is warranted if flexion is limited to 45 degrees, a 20 percent disability rating if flexion is limited to 30 degrees, and a 30 percent disability rating if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension under Diagnostic Code 5261 is rated 10 percent disabling if extension is limited to 10 degrees, 20 percent disabling if extension is limited to 15 degrees, 30 percent disabling if extension is limited to 20 degrees, 40 percent disabling if extension is limited to 30 degrees, and 50 percent disabling if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Here, the medical evidence reflects that the Veteran has complained of pain, stiffness, swelling and weakness in the knee, which problems are exacerbated by prolonged walking, standing, and other activities. The VA examination report reflects the Veteran's reported history of pain in the knee, and the VA examiner acknowledged that the Veteran had pain at the extremes of range of motion of the knee. The Board notes, however, that at the October 2012 VA examination, the Veteran was found to have range of motion of flexion to 100 degrees, with full extension to 0 degrees with pain at the endpoints of motion and no additional loss of function on repetitive-motion testing. Upon consideration of the relevant medical evidence, the Board does not find that the clinical evidence supports a disability rating higher than 10 percent for degenerative joint disease of the right knee at any time during the appellate period. Specifically, the Board finds that the clinical evidence does not suggest, even when functional loss due to pain is considered, that the Veteran's degenerative joint disease of the right knee has been so disabling as to approximate the level of impairment required for the assignment of a rating greater than the 10 percent currently assigned. In reaching this decision, the Board observes that range-of-motion testing showed that, for the entirety of the appellate period, the Veteran's flexion and extension levels do not result in a level of disability warranting a rating higher than the 10 percent currently assigned, even when pain on motion is taken into consideration. As noted above, at the October 2012 VA examination, the Veteran demonstrated flexion to 100 degrees with full extension, which does not approximate the compensable levels (flexion limited to 45 degrees or extension limited to 10 degrees) under the rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Although the Veteran was noted by VA treatment providers to have limitation of extension to 8 degrees in June 2012 and was found by his physical therapist to have limitation of extension to 10 degrees while ambulating in July 2012, that level of impairment is contemplated by the 10 percent rating currently assigned under Diagnostic Code 5261. Thus, the Board finds that a higher or separate rating is not warranted based on limitation of flexion or extension at any time during the appellate period. The Board also concludes that the evidence does not support separate ratings for limitation of flexion under Diagnostic Code 5260 or for limitation of extension under Diagnostic Code 5261. As noted above, VA examination shows that the Veteran's range of motion of the right knee was flexion of 100 degrees and extension to 0 degrees, with pain on motion. Further, as noted above, although the Veteran has been noted by VA treatment providers to have some limitation of extension, those findings are properly contemplated by the 10 percent rating currently assigned. Thus, the Board concludes that neither VA examination reports nor treatment records have revealed chronic limitation of flexion or extension of the right knee sufficiently restricted to warrant a rating higher than 10 percent, or a separately compensable rating, under Diagnostic Code 5260 or 5261 at any time during the appeal period. As the functional impact of the Veteran's degenerative joint disease of the right knee has been considered by the examiners and the 10 percent rating currently assigned, no higher rating is warranted under Diagnostic Code 5260 or 5261. Further, upon review of the relevant medical evidence, the Board finds that a separate compensable rating is not warranted for the right knee based on subluxation or lateral instability. In that connection, the Board notes that Diagnostic Code 5257 is specifically for application for cases where there is shown to be subluxation or lateral instability. In this case, the Veteran has not complained of instability in his right knee, and no instability of the right knee has been identified on physical examination at any time. No instability has been noted by any VA examiner or at any VA treatment visit. Therefore, the Board does not find that a separate compensable rating is warranted for the right knee on account of lateral instability or subluxation. The Board has considered the Veteran's and his representative's contentions with regard to his claim for a higher rating for his service-connected right knee disability. Although the Board does not doubt the sincerity of the Veteran's belief that his disability is more severely disabling than reflected in the current rating, as a lay person without the appropriate medical training or expertise, he simply is not competent to provide a probative opinion on a medical matter, such as the severity of a current disability as evaluated in the context of the rating criteria. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The above determination is based on consideration of the applicable provisions of VA's rating schedule. The Board also finds that at no time has the disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). Here, there is an absence of evidence of marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), frequent periods of hospitalization, or evidence that the Veteran's service-connected right knee disorder has otherwise rendered impractical the application of the regular schedular standards. In that connection, the Board acknowledges that the Veteran has not been hospitalized due to his service-connected knee right knee disability, nor has he alleged that he is unable to work due solely to his right knee disorder. Thus, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not 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). Furthermore, it bears emphasis that the schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. 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. 38 C.F.R. § 4.1 (2014). Thus, based on the record before it, the Board does not find that the medical evidence demonstrates any unusual disability with respect to the claim that is not contemplated by the rating schedule. The very symptoms the Veteran experiences are those specifically contemplated by the rating schedule. Thun v. Peake, 22 Vet. App. 111 (2008). As a result, the Board concludes that a remand for referral of the rating issues to the VA Central Office for consideration of extra-schedular evaluation is not warranted. For all the foregoing reasons, the Board finds that the Veteran's service-connected degenerative joint disease of the right knee warrants a disability rating of no more than the 10 percent currently assigned. 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261 (2014). This is so for the entirety of the appellate period. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for increase, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to a disability rating higher than 10 percent for degenerative joint disease of the right knee is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs