Citation Nr: 1757734 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 10-14 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a bilateral knee disability, to include as caused or aggravated by a service-connected lower back disability. 2. Entitlement to a disability rating higher than 60 percent for right lower extremity radiculopathy for the period beginning October 31, 2015. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty for training from March 1981 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal of September 2008 and October 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. When this case was last before the Board in September 2016, the Veteran was in receipt of a noncompensable rating, a 20 percent rating, and a 60 percent rating for his service-connected right lower extremity radiculopathy for the periods prior to November 30, 2010, between November 30, 2010 and October 30, 2015, and beginning October 31, 2015, respectively. In September 2016, the Board granted a 60 percent rating for the entire period prior to October 31, 2015. The Board proceeded to remand the issue of entitlement to a rating higher than 60 percent for the period beginning October 31, 2015, as well as the issue of entitlement to service connection for a bilateral knee disability, for additional development. These issues are now again before the Board for further appellate consideration. In an October 2016 rating decision, the Appeals Management Center (AMC) in Washington, D.C., implemented the Board's September 2016 decision, and informed the Veteran that the decision was considered a full and final determination with respect to the rating assigned for the right lower extremity radiculopathy for the period prior to October 31, 2015, unless appealed to the United States Court of Appeals for Veterans Claims. Accordingly, the Board has recharacterized the right lower extremity claim as reflected on the title page. The record before the Board consists of electronic records within the Veterans Benefits Management System. FINDINGS OF FACT 1. The Veteran's bilateral knee disability was not present until more than one year after his discharge from service, is not etiologically related to his service, and was not caused or aggravated by his service-connected lower back disability. 2. For the period beginning October 31, 2015, the Veteran's right lower extremity radiculopathy has manifested as severe incomplete paralysis; it has not manifested as complete paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C.A. § 1110 (West 2015); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. For the period beginning October 31, 2015, the criteria for a rating higher than 60 percent for right lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. § 4.124a, DC 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2015), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that the Veteran's service treatment records (STRs), VA treatment records, and private treatment records have been obtained, to the extent they have been identified by the Veteran. The Veteran has also been afforded appropriate VA examinations in relation to his claims. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to further substantiate his claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claims. General Legal Criteria Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2015); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d) (2017). In addition, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a) (2017). Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b) (2017). Disability Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. §§ 3.321 (a), 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Background and Analysis The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to the Veteran's claims. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. In addition, in accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities under review. Service connection for a bilateral knee disability The earliest medical evidence related to bilateral knee symptoms appears in May 2008, at which time the Veteran complained of significant pain and a feeling of "bone on bone" contact. Shortly thereafter, the Veteran underwent surgery for severe bilateral meniscus tears and was diagnosed with degenerative joint disease in both knees. The Veteran's STRs show he suffered back and right leg injuries during service when a "motor grader" he was operating flipped over into a ditch, pinning him underneath it. The Veteran was granted service connection for a lower back disability related to this incident in a July 2006 rating decision. He contends his bilateral knee disability was also a result of this accident. Alternatively, he contends his bilateral knee disability was caused or aggravated by his service-connected lower back disability. The Veteran was afforded a VA examination in May 2009. The examiner noted the Veteran's report that the onset of his knee pain was slow and gradual following his in-service injury, and had significantly worsened in approximately 2000. The examiner noted he had thoroughly reviewed the Veteran's claims file, and stated that although the Veteran obviously had a significant injury to his body while in service, he did not feel there was significant evidence to support the Veteran's claim that his knee disability was related to service. In this regard, the examiner noted, upon a review of the Veteran's STRs, that he was run over and pinned awkwardly by a motor grader, but did not have any knee pain at that time. The examiner noted the Veteran's report that his knee pain had a gradual onset after the injury, but stated that this did not necessarily mean the knee pain was secondary to the injury. Instead, the examiner stated he believed the Veteran's bilateral knee degenerative disease occurred gradually over time due to chronic wear and tear which had primarily occurred since the Veteran's discharge. As such, the examiner concluded it was less likely than not the Veteran's bilateral knee disability was related to service. In its September 2016 remand, the Board noted that while the examiner had addressed the Veteran's bilateral knee disability in terms of its relation to service, he had not addressed whether the condition was caused or aggravated by the Veteran's service-connected lower back disability. Accordingly, the Veteran was afforded a VA contract examination in February 2017. The examiner noted the Veteran had bilateral knee degenerative arthritis, and was status post-bilateral meniscus repair. Following the examination, to include imaging studies, and a review of the Veteran's claims file, the examiner concluded it was less likely than not the Veteran's bilateral knee disability was proximately due to or had been aggravated by his lower back disability with associated bilateral lower extremity radiculopathy. In this regard, the examiner stated his opinion that the Veteran's bilateral knee degenerative arthritis had been caused by the age, wear, and tear of the joint, and that although radicular pain in the lower extremities could be caused by the Veteran's lower back disability, it would not cause the destruction of the actual knee joints as was shown by X-ray results. The examiner reiterated that the Veteran's history of meniscal tears and osteoarthritis of the knees was not etiologically related to his lower back disability. Upon review, the Board observes the distinction made by the examiner between pain in the lower extremities, to include the knees, caused by the Veteran's service-connected lower back disability, and destruction of the actual knee joints, which are manifestations of the bilateral knee disability that forms the basis of the Veteran's claim. Although not explicitly stated, the Board has interpreted the examiner's opinion to be that while the Veteran's lower back disability may cause pain in his knees, it would neither cause nor aggravate destruction of the knee joints, which is a separate process. The Board has carefully reviewed the foregoing and the entire record. In summary, the VA examination reports, authored by medical experts, indicate the Veteran's bilateral knee disability is not related to service, and has neither been caused nor aggravated by his service-connected lower back disability. Instead, the reports indicate the bilateral knee disability has been caused by aging, wear, and tear of the knee joints. While the Veteran may truly believe his bilateral knee disability was incurred in service, or, alternatively, was caused or aggravated by his lower back disability, his opinion regarding these matters, which require medical expertise, is of less probative value than the medical expert opinions of record, which weigh against the claim. Upon a review of the record, the Veteran has not submitted, and there is otherwise no medical evidence of record which weighs against the VA examination reports discussed above. In view of the foregoing, the Board has determined that a preponderance of the evidence weighs against the Veteran's claim. As such, the claim must be denied. Increased rating for right lower extremity radiculopathy The Veteran's right lower extremity radiculopathy is rated under 38 C.F.R. § 4.124a, DC 8520, which is applicable to paralysis of the sciatic nerve. Under DC 8520, in pertinent part, a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis, where the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See 38 C.F.R. § 4.424a (2017). The Board observes the words "mild," "moderate," and "severe" 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 Veteran was afforded a VA examination in October 2015. Upon sensory examination, the examiner indicated that sensation to light touch was decreased in the right thigh and knee, and was absent in the right lower leg, ankle, foot, and toes. The examination report indicated the Veteran had severe radiculopathy in the right lower extremity with involvement of the sciatic nerve. On the basis of the October 2015 examination results, the AMC increased the Veteran's right lower extremity radiculopathy rating to 60 percent, effective on the date of the examination, in a December 2015 rating decision. In its September 2016 remand, the Board determined the record was unclear as to whether there was complete paralysis of the sciatic nerve manifested by a foot that dangles and drops, with no active movement possible of the muscles below the knee, and flexion of the knee weakened or lost. Accordingly, the Veteran was afforded an additional VA examination in February 2017. Upon examination, the Veteran was noted to have mild constant pain as well as mild paresthesias in the right lower extremity. The examiner indicated the overall severity of the radiculopathy was mild. The examiner then specifically stated that there was no foot drop observed during the examination and that, thus, the Veteran's disability did not result in complete paralysis of the affected nerve. Upon a careful review of the foregoing, and of the entire record, the Board notes there has been no medical finding of complete paralysis causing the foot to dangle and drop, with no active movement possible of muscles below the knee, and flexion of the knee weakened or lost. Accordingly, the Board finds a rating higher than 60 percent for the Veteran's right lower extremity radiculopathy is not warranted. In reaching its decision, the Board has duly considered the benefit-of-the-doubt doctrine, but has determined a preponderance of the evidence weighs against the Veteran's claim. As such, the doctrine is inapplicable, and the claim must be denied. ORDER Entitlement to service connection for a bilateral knee disability is denied. Entitlement to a rating higher than 60 percent for right lower extremity radiculopathy for the period beginning October 31, 2015, is denied. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs