Citation Nr: 1754903 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-40 893 ) 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 degenerative joint disease (DJD), left knee (left knee disability). 2. Whether new and material evidence has been presented to reopen a claim of service connection for a right knee disorder, to include as secondary to service-connected DJD, left knee. 3. Whether new and material evidence has been presented to reopen a claim of service connection for lumbar laminectomy and discectomy with strain, to include radiculopathy and residuals (low back disorder), to include as secondary to service-connected DJD, left knee. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from March 1954 to December 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. The Veteran's left knee disability has been manifested by degenerative arthritis affecting one major joint group. 2. Throughout the entire appellate period, the Veteran's left knee disability has been manifested by complaints of a feeling of giving way, but no objective evidence of recurrent subluxation or lateral instability. 3. In an unappealed July 2006 Board decision, the Board denied service connection for a low back disorder. 4. The evidence added to the records since the July 2006 Board decision is cumulative or redundant of the evidence of record at the time of such decision and does not raise a reasonable possibility of substantiating the Veteran's claim for service connection for a low back disorder. 5. In an unappealed July 2006 Board decision, the Board denied service connection for a right knee disorder. 6. The evidence added to the records since the July 2006 Board decision is cumulative or redundant of the evidence of record at the time of such decision and does not raise a reasonable possibility of substantiating the Veteran's claim for service connection for a right knee disorder. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limitation of flexion of the left leg have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.59, 4.71a, Diagnostic Code 5003-5260 (2017). 2. The criteria for a separate evaluation of 10 percent for a left knee disability based on subluxation or instability have been met for the entire appellate period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2017). 3. The July 2006 Board decision is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 4. As new and material has not been received, the criteria for reopening the claim for service connection for a right knee disorder have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. As new and material evidence has not been received, the criteria for reopening the claim for a low back disorder have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). I. Increased Ratings VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns Diagnostic Codes to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two Diagnostic Codes are applicable to the same disability, the Diagnostic Code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different Diagnostic Codes-a practice known as pyramiding-is prohibited. Id.; see 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). As is the case here, for increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also 38 U.S.C. § 5110(b)(2) ( 2012); 38 C.F.R. § 3.400(o)(2) (2017). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2017); see Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain "must actually affect some aspect of 'the normal working movements of the body' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45 (2017). These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the provisions of 4.40 and 4.45 are not subsumed by the DC's applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. See 38 C.F.R. § 4.59 (2017). Joints that are actually painful, unstable, or misaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2015). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A. Analysis The Veteran's left knee disability has been rated as 10 percent disabling for limitation of flexion under Diagnostic Code (DC) 5003-5260. See April 2015 Rating Decision. See also 38 C.F.R. § 4.71(a). See, too, 38 C.F.R. § 4.27 (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). DC 5260 refers to limitation of flexion of the leg. 38 C.F.R. § 4.71a. DC 5003 refers to degenerative arthritis. Id. Under DC 5260, limitation of flexion of the leg is assigned the following ratings: 30 percent for flexion limited to 15 degrees; 20 percent for flexion limited to 30 degrees; 10 percent for flexion limited to 45 degrees; and a noncompensable rating for flexion limited to 60 degrees or more. Id. Under DC 5003, arthritis established by x-ray findings is rated on the basis of limitation of motion of the affected joints. When however, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joint affected by limitation of motion, to be combined, not added, under DC 5003. Id.; see also 38 C.F.R. § 4.45 (f) (defining major joints and groups of minor joints). Separate disability ratings are possible for arthritis with limitation of motion under DC 5003 and instability of a knee under DC 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). When x-ray findings of arthritis are present and a Veteran's knee disability is rated under DC 5257, the Veteran would be entitled to a separate compensable rating under DC 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998). VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003/5010 and 5257, respectively. More recently, the VA General Counsel held that a separate rating could also be provided for limitation of knee extension and flexion of the same knee joint. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). DC 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. The Board observes that the words "slight," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). The Board notes that x-ray evidence of degenerative arthritis was found during an April 2005 VA examination. See April 2005 VA Examination Report. In his substantive appeal, the Veteran asserted his left knee is unstable and gives out, causing him to fall. See August 2017 Appeal to Board of Veterans' Appeals. In support of this assertion, the Veteran submitted a private medical record, corroborating his report of his left knee disability causing him to fall. See July 2017 Crystal Coast Pain Management Appointment Note (reporting a fall due to the Veteran's left leg giving out). The Veteran's assertion is also corroborated by several VA treatment records. See January 2016 Primary Care Note (the Veteran fell upon getting out of a chair and noting a history of falls over the past several months); March 2016 Occupational Therapy Note (the Veteran fell in February 2016). A May 2016 VA examination report reflects range of motion (ROM) testing results showing flexion from 0 to 90 degrees, extension to 0 degrees. See May 2016 VA Examination Report. Following repetitive use testing, there was no additional loss of ROM. Id. Pain was noted during ROM testing. Id. The examiner found no evidence of joint instability, recurrent subluxation or lateral instability. Id. Strength of the left leg was 4/5. Id. A May 2015 VA examination report reflects ROM testing results showing flexion to 65 degrees, extension to 0 degrees. See May 2015 VA Examination Report. The Veteran reported that he experienced flare-ups which resulted in weakness in the leg which would cause him to fall. Id. Pain was noted during the initial ROM testing and prevented repetitive use testing. Id. The examiner found no evidence of joint instability, recurrent subluxation or lateral instability. Id. Strength of the left leg was 4/5. Id. The Board finds that the probative evidence of record reflects that the Veteran's left knee disability is manifested by degenerative arthritis affecting one major joint group and flexion of the left leg limited to 65 degrees. As discussed above, for arthritis established by the x-ray findings, a 10 percent rating will be assigned for each involved major joint when the limited motion of a specific joint would be noncompensable. See 38 C.F.R. § 4.71a, DC 5003. As the Veteran's flexion of his left leg was limited to a noncompensable degree throughout the appellate period, a rating in excess of 10 percent is not warranted, as only one major joint was involved. See 38 C.F.R. § 4.45(f) (defining the knee as one major joint). Further, as the May 2015 VA examination reflected the Veteran's flexion of the left leg was limited to 65 degrees, entitlement to a rating in excess of 10 percent is not warranted. See 38 C.F.R. § 4.71a. The Board additionally finds that the Veteran is entitled to a separate rating for slight instability under DC 5257, effective May 28, 2015. See 38 C.F.R. § 4.71a. In this regard, the May 2015 VA examination report reflected the Veteran's complaints of left knee instability, or a feeling of "giving way." However, given that the Veteran's left knee instability has not resulted in positive objective joint stability testing in either the May 2015 or May 2016 VA examinations, the Board cannot conclude that the Veteran's left knee disability has resulted in either moderate or severe instability. Id. In sum, the preponderance of the evidence weighs against the assignment of a rating in excess of 10 percent for the Veteran's left knee disability under DC 5003-5260 for degenerative arthritis with limited flexion. However, a separate, 10 percent rating, but no higher, is warranted under DC 5257, based on recurrent subluxation or lateral instability, for the entire appellate period. II. New and Material Evidence Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) that the current disability was either: (a) proximately caused by; or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Unless the Chairman orders reconsideration, or one of the other exceptions to finality apply, all Board decisions are final on the date stamped on the face of the decision and are not subject to revision on the same factual basis. Therefore, the April 2005 Board decision is final based on the evidence then of record. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA must evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). A. Low Back Disorder The Board finds that the evidence submitted since the last final Board decision in July 2006 is new, but not material, and does not reasonably substantiate the Veteran's claim of entitlement to service connection for a low back disorder. At the time of the July 2006 Board decision, the Board considered the Veteran's available service treatment records, statements in support of his claim, post-service treatment records, and VA examination reports. The Board discussed the Veteran's contentions that he injured his back when his service-connected left knee gave out, causing him to fall. The Board noted the evidence of current low back disorders, but found that there was no medical evidence suggesting any link between the Veteran's military service or his service-connected left knee and his low back disorders. Since filing to reopen his claim in March 2016, medical records have been associated with the Veteran's claims file which document treatments for low back pain. See July 2017 Crystal Coast Pain Management Appointment Summary. Additionally, the Veteran was afforded a May 2016 VA examination. Although the evidence is new, the Board finds that it is not material because it contains no indication that the Veteran's low back disorder is related to any incident of service, or is secondary to his service-connected left knee disorder. The evidence does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence which merely documents continued diagnosis and treatment of a disease, without addressing the crucial matter of a medical nexus, does not constitute new and material evidence). The additional medical evidence is therefore not so significant that it must be considered in order to fairly decide the merits of the claim. Additionally, the Veteran has put forth reiterations of past contentions, specifically, that he injured his back as a result of his service-connected left knee disability. The Board points out that any lay statements made by the Veteran to the effect that he suffers from a low back disability as a result of his service-connected disabilities are insufficient to reopen his claim under 38 U.S.C. § 5108 (2012). These contentions were made at the time of the prior decision, and reiterating them now does not constitute new evidence. See, e.g., Reid v. Derwinski, 2 Vet. App. 312 (1992). In light of the above, the Board finds that the evidence presented since the July 2006 decision does not meet the new and material evidence standard, and thus the claim cannot be reopened. B. Right Knee Disorder The Board denied the Veteran's claim of service connection for a right knee disorder in July 2006. The evidence received subsequent to the July 2006 Board decision consists of post-service treatment records and a May 2016 VA examination. The Board concludes that the medical evidence is new, because it was not before the Board when it denied the claim of service connection for a right knee disorder in July 2006. Although the evidence is new, the Board finds that it is not material because it contains no indication that the Veteran's right knee disorder is related to any incident of service, or to the Veteran's service connected left knee disability. The evidence does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. See Cornele, 6 Vet. App. at 62 (medical evidence which merely documents continued diagnosis and treatment of a disease, without addressing the crucial matter of a medical nexus, does not constitute new and material evidence). The additional medical evidence is therefore not so significant that it must be considered in order to fairly decide the merits of the claim. Although the Veteran has reiterated that his left shoulder disorder is related to his military service, this is duplicative of his prior contentions and is therefore not new. As stated above, any lay statements made by the Veteran to the effect that he suffers from a right knee disorder as a result of his service-connected left knee disorder are insufficient to reopen his claim under 38 U.S.C. § 5108 (2012). These contentions were made at the time of the prior decision, and reiterating them now does not constitute new evidence. See, e.g., Reid, 2 Vet. App. at 312. In light of the above, the Board finds that the evidence submitted since the last final denial of the claim does not meet the new and material evidence standard, and thus the claim cannot be reopened. ORDER Entitlement to a rating in excess of 10 percent for a left knee disability is denied. Entitlement to a separate disability rating of 10 percent, but not higher, is granted under Diagnostic Code 5257 for slight instability, effective May 28, 2015. New and material evidence having not been received, the claim to reopen the previously denied claim of service connection for a low back disability is denied. New and material evidence having not been received, the claim to reopen the previously denied claim of service connection for a right knee disorder is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs