Citation Nr: 1806166 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-16 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to the service-connected left knee disability. 2. Entitlement to a disability rating in excess of 10 percent for the left knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1989 to August 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board previously remanded these matters in November 2015 and March 2017. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2014. A transcript of the hearing is of record. FINDINGS OF FACT 1. The most probative evidence of record is at least in relative equipoise whether the Veteran's low back disability is caused or aggravated by her left knee disability. 2. The Veteran's left knee disability is manifested by a moderate left knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability, to include as secondary to a left knee disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for an evaluation of 20 percent, but no higher, for service-connected left knee disability, have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.59, Diagnostic Code 5262 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Service Connection Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is shown to be either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran asserts that her low back disability was caused directly by service or by her service-connected left knee disability. The Veteran's service treatment records note that the Veteran fell from a truck with associated back pain in service. She was treated conservatively and no further treatment was needed. She incurred another injury in service and was again treated conservatively. The Veteran's periodic physical examinations noted recurrent back pain. In an April 2005 VA treatment note, the physician stated that it was not likely that the Veteran's right knee and low back pain were caused by her left knee pain. In September 2008 the Veteran was afforded a VA examination for her low back claim. The Veteran stated that for the past several years she had chronic and persistent low back pain. She denied any injury to her low back at any time in the past. The Veteran described how she had to compensate her gait secondary to her pain in her knees, which caused pain in her low back. The examiner was unable to state whether the disc narrowing of the lumbosacral spine, the coccygeal area, and the cervical spine and the right knee condition were in anyway related to the Veteran's chronic left knee condition. The Board notes that this opinion was found inadequate in its November 2015 remand as the examiner was unable to render a reasoned opinion as to whether the Veteran's low back disability was aggravated by the left knee disability. In the Veteran's November 2009 notice of disagreement, she described how she incurred her low back injury during service in a car accident while on light duty. In a February 2016 VA opinion, the examiner noted that the Veteran had a distinct history of injury to her back from her time in service and likely had a back strain from her time in service. However, the examiner stated that after reviewing lumbar x-rays from 2012 which were unremarkable and the CT abdomen and pelvis which gave multiple views of the lumbar spine and the SI joint showed no degenerative changes, no instability, no signs of soft tissue edema that would suggest that this was an ongoing process from her time in service. The examiner opined that more than likely, the Veteran's current back pain was a result from her morbid obesity, which increased the amount of stress on her back. The examiner further stated that her examination was limited in flexion secondary to abdomen stopping her from forward bending farther than the measured degree. The examiner stated that the Veteran had a normal lordodic curvature as noted from the August 2015 CT abdomen and pelvis. In addition, upon observation of the Veteran's posture as she walked, she had normal curvature, no sagittal or coronal imbalance of her spine. Therefore, based upon the radiographic evidence, the lack of treatment that the Veteran has needed for her back since her termination from service, her current back issues were more likely from her obesity and unlikely associated with the injuries she had during her time in service. The examiner further concluded that any issues the Veteran had with her knees were unrelated with her current lumbar strain. The Board found this VA opinion inadequate in its March 2017 remand as although it sufficiently addressed the direct service connection opinion, it did not sufficiently address the issue of aggravation of the low back by the left knee. In January 2017, the Veteran's private physician opined that due to pain and instability of the left knee, this caused pain and instability of the right knee and lower back. In an April 2017 VA addendum opinion, the examiner opined that the Veteran's peripheral joint (knee) condition was not an etiological factor for the low back condition. The examiner referred to the February 2016 VA examination, which showed that there was no instability and the Veteran's observed posture as she walked revealed normal curvature without saggital or coronal imbalance of the spine. The examiner further opined that the Veteran's obesity which had increased stress on the back was the likely factor for her back condition. Thus, the Board finds that the evidence is at least in relative equipoise to warrant entitlement to service connection for a low back disability, to include as secondary to the left knee disability. The Board initially notes that the September 2008 and February 2016 VA examinations were found to be inadequate. Specifically, the September 2008 VA examiner did not adequately provide a nexus opinion and the February 2016 VA examiner did not adequately address aggravation. The Board concedes that the Veteran is not entitled to direct service connection based on the February 2016 VA examiner's opinion. However, regarding the Veteran's secondary service connection theory of entitlement, the evidence is at least in relative equipoise. Preliminarily, the Board acknowledges the April 2005 VA treatment note which provided a negative nexus opinion and the April 2017 VA examiner's negative nexus opinion. However, the Veteran's lay statements combined with the January 2017 private physician's statement are competent evidence to warrant service connection. Thus, as the evidence is at least in relative equipoise, entitlement to service connection for a low back disability as secondary to a left knee disability is warranted. III. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal exertion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). In that regard, 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; see Burton v. Shinseki, 25 Vet. App. 1 (2011). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's left knee disability is currently rated as 10 percent disabling under Diagnostic Code 5262. Under Diagnostic Code 5260, a 0 percent disability rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent disability rating is assigned when flexion is limited to 45 degrees; a 20 percent disability rating is assigned when flexion is limited to 30 degrees. See 38 C.F.R. § 4.71a (2017). Under Diagnostic Code 5261, a 0 percent disability rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent disability rating is assigned when extension is limited to 10 degrees; a 20 percent disability rating is assigned when extension is limited to 15 degrees. Id. Under Diagnostic Code 5262, impairment of the tibia and fibula warrants a 10 percent rating for malunion of the tibia and fibula with a slight knee or ankle disability. A 20 percent rating is assigned for malunion of the tibia and fibula with a moderate knee or ankle disability. See 38 C.F.R. § 4.71a (2017). Normal range of motion of the knee is defined as extension to 0 degrees and flexion to 140 degrees. 38 C.F.R. § 4.71a, Plate II (2017). In May 2005, the Veteran was afforded a VA examination for her claim. The Veteran described giving way, pain, and occasional instability. She reported periods of flare-ups that occurred every other day. She denied any additional limitation of motion or functional impairment during the flare-ups, and she used a brace occasionally. She also denied any history of dislocation and stated that the knee pain did not interfere with her activity of daily living and work. She was employed as a retails salesperson. Upon examination, range of motion of the knee was taken from 0 to 140 degrees without pain, both actively and passively. There was no pain with range of motion. The knee was taken through repetitive range of motion. There was no pain, fatigue, or weakness. The Veteran had no edema, no effusion, and no instability. She had medial and lateral joint line tenderness. There was no redness, heat, or abnormal movements. She had a normal gait pattern. There was no ankylosis. In September 2008, the Veteran was afforded another VA examination for her claim. The Veteran described her left knee giving way occasionally. She wore a left knee brace. There was no history of flare-ups and she stated she had no fully incapacitating episodes of pain in her knees in the last 12 months. She reported doing all activities of daily living and worked full-time in daycare with no restrictions and no lost time from work over the last year. The Veteran said that repetitive motion may increase the pain without causing additional loss of motion. Upon examination, range of motion of the left knee was from 0 to 130 degrees. There was mild joint effusion of the left knee and diffuse tenderness to palpation along the supratellar, infrapatellar, medical and lateral joint line. There was no decrease of range of motion with repetitive movements. In the Veteran's November 2009 notice of disagreement, the Veteran disagreed with the VA examiner's statement that there was no history of flare-ups as she reported being treated at the VA since 2006 or 2007 where she received cortisone shots. She also stated that she did not miss work because she was a single mom and ran a daycare out of her home. The Veteran argued that because she wore a brace she warranted a 40 percent rating. In May 2011, the Veteran stated that she wore knee braces since around 2007 and required inserts in both of her shoes for support. The Veteran further stated that since around 2009 or 2010 she used a cane for support when she walked or stood a lot because her knees swelled. In February 2016, the Veteran was afforded another VA examination for her increased rating claim. It was noted that the Veteran continued to receive corticosteroid injection which relieved her pain for four to six months and she wore a brace occasionally. Upon examination, range of motion was flexion 0 to 100 degrees and extension 100 to 0 degrees. There was no evidence of pain with weight-bearing or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no crepitus and the Veteran was able to perform repetitive use testing with at least three repetitions. There was no ankylosis, recurrent subluxation or lateral instability. It was noted that the Veteran used a cane regularly. The Board found this VA examination to be inadequate in its March 2017 remand as it did not address certain mandatory tests or an adequate explanation of why such tests could not be performed. In an October 2016 MRI, testing found that the Veteran had patella alta, grade III chondromalacia patellae, and moderate joint effusion, small dissecting popliteal cyst. In January 2017, the Veteran's private physician stated that the Veteran was required to wear bilateral knee braces and use her cane since 2008. The pain in her knees and lower back made it difficult to climb stairs, bend at the knee, stand for long periods of time, and getting in and out of her vehicle. The Veteran was required to get injections in her knees and also had left knee aspiration due to the condition of the left knee. She also had pain and instability of the left knee. The private physician further stated that the Veteran had exhausted all physical therapy sessions and conservative treatment. It was suggested that for further treatment, the Veteran should undergo bilateral knee injections before scheduling any type of surgery. In April 2017, the Veteran was afforded another VA examination. The Veteran reported intermittent moderate or severe achy/sharp pain in the left knee joint with recurring knee swelling. She also reported her left knee giving way. She had difficulty with squatting, jumping, and lifting heavy objects. Upon examination, range of motion was flexion at 5 to 90 degrees and extension from 90 to 5 degrees. Range of motion did not contribute to functional loss. There was evidence of pain with weight-bearing and evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions. An additional contributing factor to the disability was swelling. There was no muscle atrophy or ankylosis. There was no history of recurrent subluxation or lateral instability. Recurrent effusions were noted with a history of two knee aspirations within the past four months. There was no joint instability found. No assistive devices were noted. The Veteran's left knee condition impaired her ability to kneel, squat, stand for prolonged time or climb stairs due to pain and weakness. Pain caused functional loss with flexion as well as extension. The Board notes that following the April 2017 VA examination, the RO granted a separate noncompensable rating for the limited left knee extension in July 2017. Overall, the Board finds that the evidence supports an increased rating of 20 percent for moderate knee disability. Based on the most recent April 2017 VA examination, the Veteran's flexion has markedly decreased since her last VA examination. Further, the Veteran is unable to perform daily activities such as kneeling, squatting and bending. In addition, her January 2017 private physician noted regular use of a brace and that the Veteran underwent frequent injections and had exhausted all physical therapy sessions and conservative treatment. The Board acknowledges the Veteran's contention that she should be afforded a 40 percent disability rating based on the use of a knee brace; however, there is no medical evidence to suggest that the Veteran suffers from nonunion with loose motion. Further, the Board also acknowledges that the Veteran's complaints of instability. However, the only joint stability testing of record was at the VA examinations and showed no instability. While the Veteran may experience a feeling that her knees may give way or are unstable, the medical findings regarding instability, dislocation, and subluxation are more probative as to the actual presence of these conditions. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by the medical professionals in this case and revealed no instability or laxity. Hence, the evidence is against a separate rating for either knee under Diagnostic Code 5257. 38 C.F.R. § 4.71a. In that regard, the record also does not show that the Veteran had ankylosis, or impairment of the semilunar cartilage at any time during the period on appeal. Accordingly, Diagnostic Codes 5256, 5258, and 5259 are not for application. 38 C.F.R. § 4.71a. As such, no increased or additional rating is warranted. Thus, the preponderance of the evidence warrants an increased rating of 20 percent, but no higher, for the Veteran's left knee disability. Entitlement to a rating of 20 percent for the left knee disability is warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 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). ORDER Entitlement to service connection for a low back disability, to include as secondary to the Veteran's left knee disability is granted. Entitlement to a 20 percent disability rating for the left knee is granted. ____________________________________________ BRIANNE OGILVIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs