Citation Nr: 1623027 Decision Date: 06/08/16 Archive Date: 06/21/16 DOCKET NO. 10-05 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for back disability, to include as secondary to the service-connected left knee disability. 2. Entitlement to an initial rating in excess of 20 percent from February 27, 2008 through May 4, 2009 for a medial meniscus tear, patellofemoral pain syndrome, and chondromalacia patella, left knee. 3. Entitlement to an initial staged rating in excess of 20 percent from July 1, 2009 for a medial meniscus tear, patellofemoral pain syndrome, and chondromalacia patella, left knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David Nelson, Counsel INTRODUCTION The Veteran had active service from September 1981 to September 1985. These matters come before the Board of Veterans' Appeals (BVA or Board) from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. This case was previously before the Board in December 2014. In correspondence received in August 2015 the Veteran stated that he was waiving initial RO consideration of any pertinent evidence received subsequent to the last RO adjudication. A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence of record reveals that the Veteran stopped working as a welder due to back problems, and the April 2015 VA examiner has indicated that the Veteran's left knee disability had not impacted his employment. As such, the issue of entitlement to a TDIU is not before the Board. FINDINGS OF FACT 1. A disease or injury of the Veteran's back did not have onset during his active service or within one year therafter, was not caused by his active service, and was not caused or aggravated by service-connected left knee disability. 2. From February 27, 2008 through May 4, 2009, and from July 1, 2009 the Veteran's left knee disability is manifested by complaints of pain and no more than moderate instability and subluxation, with flexion to at least 90 degrees and extension limited by 10 degrees upon repetitive testing. CONCLUSIONS OF LAW 1. The criteria for service connection for disability of the back have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). 2. The criteria for an initial rating in excess of 20 percent from February 27, 2008 through May 4, 2009 for a medial meniscus tear, patellofemoral pain syndrome, and chondromalacia patella, left knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2015). 3. The criteria for an initial staged rating in excess of 20 percent from July 1, 2009 for a medial meniscus tear, patellofemoral pain syndrome, and chondromalacia patella, left knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Duty to Notify The Veteran was notified via a letter dated in May 2008 and May 2009 of the criteria for establishing service connection, the evidence required in this regard, and the Veteran's VA's respective duties for obtaining evidence. The Veteran was also notified of how VA determines disability ratings and effective dates if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). As VCAA notice was not completed prior to the initial AOJ adjudication of the claims, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As the May 2008 rating decision granted service connection for left knee disability, that claim is now substantiated. As such, the filing of a notice of disagreement as to the disability ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefits allowed by the evidence and the law. The Board observes that as for rating the Veteran's knees, the relevant criteria have been provided to the Veteran, including in a January 2010 statement of the case. Duty to Assist Service treatment records are associated with the claims file, as are identified VA and private medical records. The Board finds that the VA opinion obtained in this case is more than adequate as the opinion considered the pertinent evidence of record and provided a rationale for its conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, the Board finds that the rating examinations obtained in this case are adequate, as they considered the pertinent evidence of record, and included an examination of the Veteran and elicited subjective complaints and clinical measures and observations reported. The examinations described the Veteran's left knee disability in sufficient detail so that the Board is able to fully evaluate the claimed disability. 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). The Board finds that there has been substantial compliance with its prior remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this regard, the Board notes that the private treatment records identified in the Veteran's April 2015 VA Form 21-4142 are associated with the record. Although requested, the Veteran chose not to provide additional information concerning treatment from Dr. Palmer as well as his Worker's Compensation claim. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claims. I. Service connection for a back disability Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for certain chronic diseases may be presumed, subject to rebuttal, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may also be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). The Veteran's primary assertion concerning his low back disability is that it has resulted as secondary to his service-connected left knee disability. In September 2008 the RO granted the Veteran service connection for left knee disability and assigned a rating of 20 percent, effective February 27, 2008. A June 1983 service treatment record indicates that the Veteran complained of low back pain; no impression was recorded. The Veteran's August 1985 service separation examination report noted no spinal abnormality; the Veteran specifically denied that he had recurrent back pain on the corresponding Medical History Report. Medical records indicate that the Veteran was diagnosed with disability of the thoracolumbar spine in 2004. The Veteran's diagnoses include degenerative arthritis as well as degenerative disc disease, herniated nucleus pulposus, L3- L4, L4-L5; status post laminectomy, bilateral fusion L3-L5. The Board finds that the preponderance of the competent and credible evidence does not show that the Veteran's back disability was caused by or aggravated by service-connected left knee disability. There is no competent medical opinion indicating that the Veteran's back disability is caused or aggravated by service-connected left knee disability, and the April 2015 VA examiner specifically stated that no such relationship existed. As for the probative value of the April 2015 VA examiner's opinion, the Board observes that the April 2015 VA opinion was based on a very detailed, comprehensive review of the Veteran's medical history, a contemporaneous examination, and a review of the pertinent medical literature, including that which was submitted by the Veteran's representative. While multiple private treatment records for the back and knees are of record, none of the records indicate or contain statements indicating or suggesting that the Veteran's back disability is related to the left knee disability. The Veteran's assertions that his back disability is secondary to left knee disability has been considered. To the extent that is an opinion of a nexus between these conditions, the Board finds his statements are not competent evidence. Whether a layperson opinion as to a nexus or a diagnosis is competent evidence depends on the facts of the particular case. One factor for consideration is the complexity of the question to be determined. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (providing an example in footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not competent to diagnose a form of cancer). Another factor is whether the question can be answered by personal observation alone. Layno v. Brown, 6 Vet. App. 465 (1994) (layperson is competent to report only that which the person observed). Whether one joint (in other words, the Veteran's left knee) can cause or aggravate pathology in another joint (in this case, the back) is not a question that can be determined by mere observation and is not within the realm of knowledge of a layperson. While the Veteran is competent to report back symptoms, the record does not demonstrate that the Veteran has any special training or acquired any medical expertise in diagnosing orthopedic disorders. Therefore, the Board finds that the Veteran's opinion in this regard is not competent evidence and therefore not probative of any fact in this case. Based on the foregoing, the Board concludes that the preponderance of the competent and credible evidence is against a finding that the Veteran's back disability is caused or aggravated by service-connected left knee disability. As for direct service connection, the Veteran's service medical records do not show that a chronic back disability was noted in service or within one year after separation from service, as required for presumptive serve connection. Further, the post-service private medical records do not show or contain any evidence suggesting a relationship between back disability and the Veteran's service. The Veteran's opinion, to the extent he has claimed that he has back disability related to service, is not competent evidence as the Veteran has not shown himself competent to provide the etiologies of orthopedic disorders. Further, the April 2015 VA examiner has indicated that no such relationship between current back disability and the Veteran's military service exists. As for continuity of symptomatology since service, the Board notes that the Veteran specifically denied that he had back pain upon separation from service. As the preponderance of evidence is unfavorable to the claim, service connection for back disability is not warranted. There is no reasonable doubt to be resolved. See 38 U.S.C.A. § 5107(b). II. Left knee Legal Criteria Disability ratings are determined by comparing a Veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Traumatic arthritis is rated pursuant to the criteria found in Diagnostic Code 5010, which directs the examiner to rate traumatic arthritis pursuant to the criteria for degenerative arthritis found in Diagnostic Code 5003. 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each 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 10 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent 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. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1). Standard range of motion of a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 concerns limitation of leg flexion. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 pertains to limitation of leg extension. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees, and a 30 percent rating is warranted where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees, and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5258, a 20 percent rating is warranted where there is evidence of dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic code 5259, symptomatic removal of semilunar cartilage in the knee warrants a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5262, a 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted with marked knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. A claimant who has both limitation of flexion and limitation of extension of the same leg may receive separate ratings under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-2004. A claimant who has arthritis and instability of the knee may receive separate ratings under Diagnostic Codes 5003 and 5257. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-98; VAOPGCPREC 23-97. Analysis In September 2008 the RO granted the Veteran service connection for left knee disability and assigned a rating of 20 percent, under Diagnostic Code 5257, effective February 27, 2008. In December 2009 the RO assigned a temporary evaluation of 100 percent (under 38 C.F.R. § 4.30) for left knee disability from May 5, 2009 through June 30, 2009. A January 2010 RO decision assigned a separate 10 percent rating for limitation of left knee extension under Diagnostic Code 5261, effective February 27, 2008. Medical records reflect that the Veteran injured his left knee during service and began having left knee pain with increased activity. He was diagnosed with MCL laxity and left medial meniscus tear. During the appeal period the Veteran has submitted private treatment records and has undergone VA examinations, including in July 2008, November 2009, and April 2015. May 2014 VA treatment records indicate that the Veteran has received left knee injections in an effort to aid in pain relief. The Veteran's current left knee diagnosis is medial meniscal tear, patellofemoral pain syndrome, chondromalacia patella with limited motion, status post arthroscopic plica resection. As for ratings in excess of 20 percent based on recurrent subluxation or lateral instability under Diagnostic Code 5257, while records such as a December 2008 VA record noted that the Veteran had been issued a left knee brace, nothing remotely approaching severe recurrent subluxation or lateral instability has been shown. In fact, the April 2015 VA examiner specifically stated that there was no left knee joint instability, and a July 2013 treatment record also noted no left knee laxity. As noted, in January 2010 the RO assigned a separate 10 percent rating for limitation of left knee extension under Diagnostic Code 5261, effective February 27, 2008. This action was based on findings from a November 2009 VA examination wherein the Veteran's left knee had demonstrated a lack of 10 degrees of extension upon repetitive testing. The Board will now consider whether the Veteran is entitled to an increased or separate rating based on range of motion of the left knee. While the Veteran was unable to perform range of motion testing in April 2015, he was able to ambulate, and the examiner indicated that the Veteran's left knee strength testing was 5/5 and that there was no weakness, incoordination, or left knee atrophy. Further, a May 2014 VA treatment record noted that the Veteran's left knee had flexion to 100 degrees and extension to 0 degrees, and a July 2013 VA treatment record indicated left knee flexion to 90 degrees and left knee extension to 0 degrees. Thus, even when considering 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995), those findings do not indicate a disability picture comparable to having left knee flexion or extension limited to the degrees necessary in order to achieve a higher evaluation under Diagnostic Code 5261 or a separate rating under 5260. The April 2015 VA examiner essentially stated that there was no meniscus abnormality, and frequent episodes of locking or effusion in the left knee have not been shown or even asserted. Therefore, an increased or separate rating under Diagnostic Code 5258 or 5259 is not warranted. In sum, the evidence of record does not support a rating in excess of 20 percent for the Veteran's left knee disability under Diagnostic Code 5257, and a rating in excess of 10 percent for limitation of left knee extension has also not been shown. In reviewing the foregoing, the Board has been cognizant of the "benefit of the doubt" rule, but there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination. Conclusion In adjudicating the Veteran's claims the Board must assess the competence and credibility of the Veteran. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences concerning the disability on appeal. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability according to the appropriate diagnostic code. Competent evidence concerning the nature and extent of the Veteran's disability on appeal has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which the Veteran's disability is evaluated. The Board finds those records to be the most probative evidence with regard to whether an increased rating is warranted. As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the service-connected disability. If so, then the assigned schedular rating is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the Board finds that the schedular rating does not reasonably describe or contemplate the severity and symptomatology of the service-connected disability, then the Board must determine whether the exceptional disability picture includes other related factors such as marked interference with his employment or frequent periods of hospitalization. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). Regarding the Veteran's left knee disability, the evidence suggests that the symptomatology is reasonably contemplated by the schedular rating criteria discussed above. The Veteran's left knee disability was applied to the applicable rating criteria, general counsel opinions, and case law. Although the Diagnostic Codes allows for higher ratings than those assigned, the Board fully explained why higher ratings were not warranted. Moreover, there is simply no allegation that the Veteran's left knee disability is unique or unusual in any way. There is no question that the Veteran experiences knee symptomatology that includes pain and less movement than normal. However, such symptoms, to the extent they are not specifically enumerated by the schedular rating criteria, are nevertheless considered in the schedular ratings that are assigned, as the Board is required to consider functional limiters such as pain in assessing orthopedic injuries. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, the Board finds that referral for consideration of the assignment of an extra-schedular rating is not warranted. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Service connection for back disability is denied. An initial rating in excess of 20 percent for a medial meniscus tear, patellofemoral pain syndrome, and chondromalacia patella with limited motion of the left knee is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs