Citation Nr: 1805128 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-12 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the right knee with limitation of flexion. 2. Entitlement to a rating in excess of 10 percent for removal of cartilage, semilunar, right knee. 3. Entitlement to service connection for a left knee disability as secondary to service-connected right knee disability. 4. Entitlement to service connection for a lumbar spine disability as secondary to service-connected right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In March 2016 and May 2017, the appeal was remanded to the RO for further development, which has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). It now returns to the Board for appellate review. The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. The Veteran's right knee disability is manifested by surgical removal of the semilunar cartilage resulting in osteoarthritis with range of motion from 0 to 110 degrees without recurrent subluxation, instability. 2. A left knee disability is not etiologically due to service-connected right knee disability. 3. A lumbar spine disability is not etiologically due to service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for degenerative joint disease of the right knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5260 (2017). 2. The criteria for a rating in excess of 10 percent for removal of cartilage, semilunar, right knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2017). 3. The criteria for service connection for a left knee disability as secondary to service-connected right knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131 (2012); 38 C.F.R. § 3.310 (2017) 4. The criteria for service connection for a lumbar spine disability as secondary to service-connected right knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131 (2012); 38 C.F.R. § 3.310 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS General Legal Criteria 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. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. 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 claims. Increased Rating Legal Criteria 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. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Each disability must be considered from the point of view of the Veteran working or seeking work. See 38 C.F.R. § 4.2 (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. See 38 C.F.R. § 4.7 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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. The Veteran's right knee disability has been assigned a 10 percent rating for degenerative joint disease with limitation of flexion, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5260 and a separate 10 percent rating for removal of the semilunar cartilage under 38 C.F.R. § 4.71a, Diagnostic Code 5259. 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 a hyphen. Under Diagnostic Code 5003, arthritis, degenerative, substantiated by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. With X-ray evidence of involvement of 2 or more major joints, with occasional incapacitating episodes, a 20 percent rating will be assigned. With X-ray evidence of involvement of 2 or more major joints, a 10 percent rating will be assigned. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Diagnostic Code 5003, Note (1). Diagnostic Code 5257 provides a 10 percent rating for mild recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability. Diagnostic Code 5259 provides a maximum 10 percent rating for removal of the semilunar cartilage. Diagnostic Code 5260 provides that flexion of the leg limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. Under Diagnostic Code 5261, extension of the leg limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Where extension is limited to 20 degrees, a 30 percent rating is assigned. Where extension is limited to 30 degrees, a 40 percent rating is assigned. Where extension is limited to 45 degrees, a 50 percent rating is assigned. VA's General Counsel has issued multiple opinions which are also relevant to the rating of the Veteran's knee disabilities. First, a disability rated under Diagnostic Code 5257 may be rated separately under Diagnostic Codes 5260, limitation of flexion of the knee, and 5261, limitation of extension of the knee. See VAOGCPREC 23- 97. In addition, separate disability ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint without violating the provisions against pyramiding at 38 C.F.R. § 4.14. VAOPGCPREC 9-04. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Analysis In December 2007, the VA examiner documented that the Veteran had trouble going up and down ladders and reported continual pain, as well as occasional swelling, and popping noises. The Veteran denied using a brace or ambulatory aids, but stated that the knee gives way every few weeks. Range of motion of the right knee was from 0 to 125-127 degrees, measured three times and with complaints of pain at terminal degrees. There was no tenderness to palpation, instability, effusion, or fatigability. An X-ray study of the right knee revealed degenerative joint disease. At a January 2010 VA examination, the Veteran indicated that his right knee had become progressively worse. He was using a right knee brace and a cane in his left hand. Subjective symptoms included deformity, giving way, instability, pain, stiffness, weakness, incoordination, and tenderness. The Veteran described weekly severe flare-ups of symptoms that lasted hours. He expressed difficulty with prolonged standing, walking, sitting, and climbing stairs. Range of motion was from 0 to 100 degrees on flexion and there was no additional loss of motion on repetition. There was no ankylosis or instability. The examiner diagnosed chronic right knee strain with moderate degenerative joint disease and indicated that the effects of the disability on the Veteran's usual daily activities were moderate to severe. The August 2015 VA examination found range of motion from 0 to 120 degrees with pain on weight-bearing and tenderness to palpation. There was no additional loss of function with repetition. There was no ankylosis or recurrent subluxation. Instability testing found medial instability of 1+ with lateral and anterior/posterior testing all normal. In June 2017, the Veteran reported that his right knee had become worse. He indicated that he regularly wears a knee brace, but had stopped using a cane because he did not believe it helped. He identified walking on uneven surfaces, driving, and going up and down stairs as difficult, and stated that sometimes he has pain while sitting. The Veteran denied having flare-ups. Right knee range of motion was from 0 to 100 degrees without additional loss of motion after repetition. The examiner noted pain with weight-bearing and tenderness to palpation. There was no ankylosis, recurrent subluxation, or instability. The examiner indicated that passive range of motion and non-weight bearing testing could not be performed. The diagnosis was knee joint osteoarthritis. VA treatment notes reveal that the Veteran attends orthopedic consults for his right knee, which include injections in 2016 and 2017. In April 2016, he was fitted with a new brace by the prosthetics department. The orthopedic consults have consistently found tenderness, but no inflammation, effusion, instability, or signs of meniscal tear. Genu varum was noted. Private treatment notes reflect that the Veteran has sought physical therapy for his right knee in 2009, but the loss of function demonstrated was not at any time greater than that documented at VA examination. The initial evaluation showed flexion to 115 degrees with pain from 115 to 120 degrees. As noted, a 10 percent rating is the maximum rating available for removal of semilunar cartilage under Diagnostic Code 5259. Therefore, a rating in excess of 10 percent for that aspect of the Veteran's right knee disability is denied. Further, the Board finds that the evidence does not support a rating in excess of 10 percent for limitation of flexion of the right knee. The 10 percent rating contemplates the Veteran's osteoarthritis, which results in limitation of flexion that is noncompensable under the rating code for limitation of flexion, Diagnostic Code 5260. For a rating in excess of 10 percent, the Veteran's right knee must exhibit limitation of flexion to 30 degrees or less, which has not been present at any point during the appeal period. Moreover, range of motion testing has not revealed any loss of extension so as to warrant a separate rating for limitation of extension under Diagnostic Code 5261. The Board has considered whether a separate rating is appropriate under Diagnostic Code 5257 for recurrent subluxation or instability. Mild instability was noted at the VA examination in August 2015, but the other medical evidence, including VA examinations and treatment notes do not reflect instability. Therefore, the Board finds the instability noted in August 2015 to be temporary and not indicative of a permanent increase in severity. Temporary flare-ups do not warrant an increase in rating. The Veteran's right knee disability also does not display ankylosis, dislocated cartilage, impairment of the tibia and fibula, or genu recurvatum. Consequently, separate ratings pursuant to Diagnostic Codes 5256, 5258, 5262, and 5263, are not warranted. The Board has considered the Veteran's statements, including his October 2009 hearing testimony, in making this determination and acknowledges the Veteran's complaints of pain and loss of functionality as a result of his right knee disability. However, the severity of disability the Veteran describes has simply not been borne out by the clinical record. Accordingly, the Board determines that the preponderance of the evidence does not support ratings in excess of 10 percent for limitation of flexion of the right knee due to osteoarthritis and 10 percent for removal of semilunar cartilage from the right knee. The claims, are, therefore, denied. III. Service Connection The Veteran has asserted that he has back and left knee disabilities as a result of his service-connected right knee disability. The Veteran has not asserted, nor does the evidence reflect, that his left knee and back disabilities are a result of his military service. Therefore, the Board will not further address a direct theory of entitlement. See Robinson v. Mansfield, 21 Vet. App. 545, 559 (2008), aff'd Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (holding that claims that have no support in the record need not be considered by the Board; the Board is not obligated to consider "all possible" substantive theories of recovery). Legal Criteria Service connection may be established on a secondary basis for a disability which is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). However, the Veteran may only be compensated for the degree of disability over and above the degree existing prior to the aggravation. Id. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The evidence reflects that the Veteran has diagnoses of degenerative joint disease of the left knee and lumbosacral spine. He has been afforded multiple VA examinations. A December 2007 VA examiner stated that any current left knee or lower back disability is not caused by, related to, or aggravated by the right knee disability. The rationale was that there is no biomechanical reason for this to have occurred. In August 2015, another VA examination was performed, and the examiner opined that it is less likely than not that the Veteran's left knee or back disability was due to or made worse by the service-connected right knee disability. The rationale for this opinion was that the right knee examination revealed nothing, including a significant change of gait or inequality of leg length that would affect the left knee or back. Therefore, the examiner concluded that there is no biologically plausible causation relationship. The examiner supported this statement by citing his decades as a Board-certified orthopedic surgeon, reading medical literature, and attending meetings. He suggested that the cause of the Veteran's back and left knee disabilities was genetics or some other cause. Another opinion from the August 2015 VA examiner was received in May 2016. At this time, the examiner again opined that the Veteran's left knee and back disability are highly likely due to genetics and/or causations other than being directly caused by and/or aggravated by the right knee disability. The examiner stated that the available records do not show a significant ongoing disabling condition by visits to healthcare professionals until late in life after decades of back and knee stress not related to the right knee. The examiner then indicated that the left knee or back being related to the right knee disability was not supported by standards of causation in medical literature and the medical community, including a biologically plausible rationale. Finally, another VA examination was performed in June 2017. Afterward, the examiner opined that the left knee and back disabilities are less likely as not proximately caused by or aggravated by the right knee disability. The examiner stated that the medical literature does not support the theory that dysfunction in one joint causes dysfunction in another except in certain circumstances, particularly where there is severely altered gait over a period of more than one year. The examiner explained the mechanism of the altered gait, noting the Trendelenburg lurch in which the arm on the injured side swings involuntarily away from the body. In this case, the examiner found that while the Veteran limps, he does not have the characteristic Trendelenburg lurch that is typical in cases where altered gait causes injury or aggravation of the contralateral side. The examiner also noted that the Veteran used a cane for many years, which would reduce the load on the right knee and the need of the left leg to compensate for the right knee. In light of the above, the examiner concluded that the Veteran's left knee arthritis and lumbar spine disability are more likely due to the aging process than the service-connected right knee disability. No competent contradictory opinions have been received. The Veteran has asserted on multiple occasions that he believes his left knee and back disabilities are due to his right knee disability, but the Veteran lacks the specialized medical knowledge necessary to opine on the etiology of the left knee and back disabilities, which complexity is evident from the above discussion. He has indicated that his physical therapist associated the left knee and back disabilities to his right knee disability, but the physical therapy records do not support that assertion. The therapist noted the Veteran's beliefs in that regard, but offered no professional or personal opinion on the question. In light of the above, the Board finds that a preponderance of the evidence is against the Veteran's claims of entitlement to service connection for a left knee disability and a back disability as secondary to his service-connected right knee disability. Therefore, the claims must be denied. ORDER Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the right knee with limitation of flexion is denied. Entitlement to a disability rating higher than 10 percent for removal of cartilage, semilunar, right knee is denied. Entitlement to service connection for a left knee disability as secondary to service-connected right knee disability is denied. Entitlement to service connection for a lumbar spine disability as secondary to service-connected right knee disability is denied. ______________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs