Citation Nr: 18145959 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-19 023A DATE: October 30, 2018 ORDER New and material evidence having been submitted, the claim for service connection for a low back disability, to include as secondary to the Veteran’s service-connected right knee disability, is reopened. Entitlement to service connection for a low back disability, to include as secondary to the Veteran’s service-connected right knee disability, is denied. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the right knee is denied. Entitlement to an evaluation in excess of 30 percent for residuals of a meniscectomy of the right knee is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The June 2011 rating decision denying service connection for a low back disability was not appealed and became final. 2. Evidence received since June 2011 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a low back disability. 3. The Veteran’s low back disability is neither proximately due to nor aggravated beyond its natural progression by his service-connected right knee disability, and is not otherwise related to an in-service injury, event, or disease. 4. The Veteran’s right knee meniscus removal is manifested by severe recurrent subluxation or lateral instability. Ankylosis, impairment of the tibia and fibula, or genu recurvatum were not present. 5. The Veteran’s right knee degenerative joint disease was manifested by subjective complaints of pain, without evidence of limitation of flexion to less than 45 degrees or extension to more than 10 degrees. 6. The Veteran’s service-connected disabilities have not been shown to be of such severity so as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. Evidence received since the June 2011 rating decision is new and material, and the claim of entitlement to service connection for a low back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for entitlement to service connection for a low back disability, to include as secondary to the Veteran’s service-connected right knee disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for a rating in excess of 10 percent for right knee degenerative joint disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003. 4. The criteria for a rating in excess of 30 percent for right knee meniscus removal are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 5. The criteria for assignment of a TDIU are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U.S. Army from August 1951 to April 1955. 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disability, to include as secondary to the Veteran’s service-connected right knee disability The Board finds that the low threshold for reopening the claim for service connection for a low back disability has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). The new evidence, including new VA examinations, is material, and the Veteran’s claim for service connection for a low back disability is reopened. 2. Entitlement to service connection for a low back disability, to include as secondary to the Veteran’s service-connected right knee disability Legal Criteria 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In some cases, a grant of service connection is available on a presumptive basis. Service connection may be presumed for certain chronic conditions, such as arthritis, if a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and the condition manifested to a degree of at least 10 percent within one year of the date of discharge from service. 38 U.S.C. §§ 1101, 1112(a), 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis The Veteran claims entitlement to service connection for a low back condition, to include as secondary to his service-connected right knee disability. As an initial matter, the Board notes that the Veteran has been diagnosed with degenerative arthritis of the lumbar spine. Accordingly, the first criterion for establishing service connection has been met. The Veteran’s service treatment records do not contain any complaints, treatment, findings or diagnosis consistent with a low back disability. Treatment records, many years post-service, document a history and treatment for the Veteran’s lumbar degenerative spondylosis and discogenic disease since 2002, and lumbar paravertebral myositis since 2009. Therefore, service connection is not warranted on a direct basis. However, the Veteran contends that his low back disability was caused by his service-connected right knee disability. During a September 2014 VA back examination, the Veteran was diagnosed with moderate to severe lumbar degenerative spondylosis and discogenic disease. The examiner considered the Veteran’s statement that he has had chronic lower back pain since the 1960’s. After a review of the medical record and physical examination, the examiner found that, based on the objective evidence, it is not likely that the current back problems are due to his right knee disability. The examiner referenced a prior VA medical opinion issued by the same examiner in February 2009, which found that the Veteran’s low back condition was not caused by his residuals of right knee meniscectomy or degenerative joint disease of the right knee. The February 2009 examiner reasoned that these conditions belong to different anatomical areas and have different pathophysiological process. The February 2009 examiner found that the Veteran’s right knee conditions of meniscectomy and degenerative joint disease do not cause the Veteran’s low back condition of degenerative disc disease with broad based disc protrusion and lumbar paravertebral muscle strain. The September 2014 examiner agreed with his prior opinion, and concluded that the right knee condition and low back condition have unrelated onset and pathophysiology. Pursuant to a Board remand, the Veteran was provided with a new VA medical examination and medical opinion in January 2018, to determine if his low back condition was aggravated by his right knee condition. After a review of the record and an in-person examination of the Veteran, the examiner concluded that that the Veteran’s low back disability is less likely than not aggravated beyond its natural progression by the right knee disability. The examiner explained that lumbar and right knee conditions are not related pathophysiologically or anatomically to each other. Lumbar disease is a chronic condition that tends to progressively worsen over time with natural aging process, or due to repetitive trauma. The examiner noted that the knee joint is in a distinctly separate anatomical location form the lumbar spine, and this examiner was unable to locate a peer-reviewed studies that supported the concept that the Veteran’s right knee condition would aggravate lumbar degenerative disc disease. The examiner believed that the lumbar degenerative disc disease was more likely caused by age, obesity, and occupational history. The examiner cited medical literature which indicates that the lumbar condition is progressive and considered part of the normal aging process. The examiner reviewed the Veteran’s claims file, the examination, and the results of testing in arriving at the September 2014 and January 2018 medical opinions. The examiner considered all pertinent and available medical facts to which the Veteran is entitled in forming his opinion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Therefore, the Board places high probative weight on these opinions. The Board acknowledges the Veteran’s statements that his low back condition is related to his right knee condition. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, as a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and military service or a service-connected disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also considered whether a grant of service connection is available on a presumptive basis. Here, the Veteran is competent to report low back pain since service. However, there is no medical evidence that the Veteran had low back pain within a year of his discharge from service. The Veteran was discharged from active service in 1955, and there is no record of treatment for low back pain within a year of discharge. In sum, the competent evidence of record weighs against the Veteran’s assertion that his low back pain is etiologically related to his active service, to include his service-connected right knee disability. Although grateful for the Veteran’s honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set for the in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as is the case here, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 3. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the right knee 4. Entitlement to an evaluation in excess of 30 percent for residuals of a meniscectomy of the right knee The Veteran contends that his service-connected residuals of right knee meniscectomy and right knee degenerative disc disease are entitled to increased evaluations. VA’s Schedule for Rating Disabilities includes several Diagnostic Codes applicable to evaluating knee and leg disabilities. See 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides that degenerative arthritis that is 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 there is some limitation of motion of the specific joint or joints involved that is non-compensable (zero percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent 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. Under Diagnostic Code 5014, osteomalacia is evaluated as degenerative arthritis, on the basis of limitation of motion of the affected part. Diagnostic Codes 5260 and 5261 are used to rate limitation of flexion and of extension of the knee. Under Diagnostic Code 5260, limitation of flexion of the knee to 45 degrees warrants a 10 percent rating. Limitation of flexion of the knee to 30 degrees warrants a 20 percent rating, and limitation of flexion of the knee to 15 degrees warrants a 30 percent rating. Under Diagnostic Code 5261, limitation of extension of the knee to 5 degrees warrants a zero or non-compensable rating. Limitation of extension of the knee to 10 degrees warrants a 10 percent rating. Limitation of extension of the knee to 15 degrees warrants a 20 percent rating. Limitation of extension of the knee to 20 degrees warrants a 30 percent rating. Limitation of extension of the knee to 30 degrees warrants a 40 percent rating, and limitation of extension of the knee to 45 degrees warrants a 50 percent rating. Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight knee impairment, that is, recurrent subluxation or lateral instability. A 20 percent rating is assigned for a moderate degree of impairment, and a maximum rating of 30 percent is assigned for severe impairment. The words slight, moderate, moderately severe, marked, 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 in reaching a decision that is “equitable and just.” 38 C.F.R. § 4.6. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a 10 percent rating is warranted for removal of semilunar cartilage that is symptomatic. In this case, the Veteran’s right knee residuals of meniscectomy has been rated at 30 percent disabling under Diagnostic Code 5257 since March 1987, and the Veteran’s right knee degenerative disc disease has been rated as 10 percent disabling under Diagnostic Code since June 2000. The Veteran filed a claim for increased ratings for his right knee in June 2014. Turing to the evidence, VA and private medical records show ongoing treatment for the Veteran’s right knee conditions. In a July 2014 letter, a private physician noted that an MRI of the right knee revealed severe degeneration of the medial meniscus, complex tear in the posterior body and posterior horn, and meniscus calcifications. There was also degeneration of the articular cartilage with narrowing of joint spaces. In September 2014, the Veteran was provided with a VA knee and lower leg examination. The examiner noted a diagnosis of status/post right knee meniscectomy residuals with degenerative osteoarthritis and antalgic gait. The Veteran reported flare-ups that cause pain and require him to stay in bed. The examination was not conducted during a flare-up. Right knee flexion was to 110 degrees, with pain at 85 degrees. Right knee extension was at 0 degrees. There was no additional limitation after repetitive use motion. Right knee muscle strength was rated as four out of five in flexion and extension. Joint stability tests were normal. There was no evidence or history of recurrent patellar subluxation or dislocation. The examiner found symptoms related to the Veteran’s residuals of meniscectomy, including meniscal tear and frequent episodes of joint pain and effusion. The examiner noted that if pain, weakness, or incoordination were present during a flare-up, it could significantly limit functional ability. The Veteran was provided with another VA knee and lower leg examination in June 2015. The examiner noted a medical history of right knee osteoarthritis with severe degeneration of the medial meniscus. The Veteran reported flare-ups, which can cause sleeping problems due to pain in the right knee. During daytime flare-ups, he is unable to walk, drive, or sit for long periods of time. Flexion was to 60 degrees and extension was to zero degrees, with no additional limitations due to pain or limitations upon repetitive use. The examiner noted that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over a period of time. The Veteran was found to have full muscle strength and no ankylosis. There was no evidence of recurrent subluxation or lateral instability, though the examiner noted recurrent effusion. The Veteran’s meniscus condition was found to cause meniscal tear and frequent episodes of joint pain and effusion. The Veteran reported using a knee brace for support and a cane for balance. Pursuant to a Board remand, the Veteran was provided with another VA knee and lower leg condition examination in January 2018. The examiner noted a diagnosis of right knee residuals of meniscectomy and degenerative joint disease. The Veteran reported right knee pain which was worse when sleeping, and which he treats with Tramadol. The Veteran reported that during flare-ups, he is unable to drive with the right leg. The Veteran reported limitation in ambulation and standing. Flexion was to 100 degrees and extension was to zero degrees, with no additional loss due to pain or on repetition. There was no evidence of pain with weight bearing or localized pain or tenderness with palpation. The examiner did note crepitus. There was no history of recurrent subluxation or lateral instability. Joint stability testing was normal. The January 2018 examiner found that pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. At the time of the examination, there was no evidence of fatigability, incoordination, muscle weakness or pain during the physical examination. The examiner could not provide an opinion concerning additional range of motion loss during flare-ups. The examiner explained that such an opinion is not feasible, since in order to provide an additional limitation due to pain, weakness or incoordination, the evaluation must be done in the presence of a flare-up. The examiner concluded that the Veteran would have limitation in long distance ambulation and limitation in the standing position. Regarding the Veteran’s residuals of status-post meniscectomy, the Board notes that 30 percent is the maximum evaluation allowed under Diagnostic Code 5257 for severe recurrent subluxation or lateral instability. As such, an increased rating cannot be afforded under this diagnostic code. The Board has considered whether the Veteran’s residuals of right knee meniscectomy could be evaluated under Diagnostic Code 5258 for dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The Board acknowledges that the VA examiners noted meniscal tear and frequent episodes of joint pain and effusion. However, there was no evidence of locking. The criteria under Diagnostic Code 5258 are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met). Therefore, the Board finds that a separate rating under Diagnostic Code 5258 is not warranted for the Veteran’s residuals of status-post meniscectomy. See 38 C.F.R. § 4.71a, Diagnostic Code 5258. The Board finds that a rating in excess of 10 percent is not warranted for service-connected right knee degenerative joint disease status-post meniscectomy under Diagnostic Code 5003, 5260, or 5261. With regard to limitation of motion, there is no lay or medical evidence that the Veteran’s knee pain has been so disabling to result in flexion limited to at least 45 degrees, or extension limited to 10 degrees to warrant the minimum 10 percent rating under Diagnostic Codes 5260 or 5261, respectively, even during periods of flare-ups. It follows, then, that the criteria for a rating in excess of 10 percent under either diagnostic code are not met. Hence, even with consideration of the sections 4.40 and 4.45 and DeLuca, the record presents no basis for assignment of a higher rating under Diagnostic Code 5260 or 5261. The Board has reviewed the remaining diagnostic codes relating to knee disabilities. As there is no evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum, evaluation of the right knee under Diagnostic Code 5256, 5262, or 5263, respectively, is not warranted. Moreover, the right knee is not shown to involve any other factors that warrant consideration of any other provisions of VA’s rating schedule. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 5. Entitlement to a total disability rating based upon individual unemployability (TDIU) Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran is service-connected for right knee residuals of meniscectomy, evaluated as 30 percent disabling, right knee degenerative joint disease, evaluated as 10 percent disabling, removal of the right testicle, evaluated as 10 percent disabling, and schistosomiasis, rated as noncompensable. The Board notes that the Veteran is also in receipt of special monthly compensation for loss of use of a creative organ. 38 U.S.C. § 1114. The Veteran’s combined evaluation for compensation is 40 percent. Currently, he does not meet the minimum schedular criteria for TDIU under 38 C.F.R. § 4.16 (a). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16 (b). In April 2018, the Veteran submitted documents related to his request for vocational rehabilitation services from the VA. Vocational counseling records show that he has a high school education, and he has studied radio and television repair. The Veteran reported working for 22 years until 1980, when he quit his job as a bus driver due to an injury and deteriorating knee condition. After the June 2015 VA knee and lower leg condition examination, the examiner concluded that the Veteran would be limited for any type of job that requires moderate to prolonged standing or sitting positions, carrying, or lifting activities. The January 2018 VA examiner noted that the Veteran’s condition impacts his ability to perform occupational tasks because of limitations in long distance ambulation and limitations in standing position. The examiner opined that the Veteran would be able to obtain and secure a sedentary type of job (such as a clerk or with answering phones) with light duty precautions with periods of intermittent standing and seating and not performing heavy lifting or stooping in respect to the right knee condition. Based on the foregoing evidence, the Board finds that the Veteran’s service- connected right knee disabilities and testicle removal do not prevent him from obtaining and maintaining substantially gainful employment. The Board acknowledges the Veteran’s assertion that he is unemployable due to his knee condition. However, while the Veteran’s knee condition would have an impact on his occupational activities as it relates to his exertional level, the evidence shows that the severity of the Veteran’s conditions would not preclude him from performing sedentary employment. The issue is not whether the Veteran is unemployed or has difficulty finding employment, but rather, whether the Veteran is capable of performing acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). While the Board is cognizant that the Veteran would have difficulty working due to having problems related to his knee disability, the preponderance of the evidence of record demonstrates that the Veteran is not precluded from securing and following substantially gainful employment due to his service-connected conditions. The fact that a veteran is currently not working or may have difficulty finding a job is not determinative in adjudicating a claim for a TDIU rating. After reviewing all the evidence of record and considering the Veteran’s education and work history, the Board concludes that the preponderance of the evidence does not show that the Veteran would be unable to obtain or maintain substantially gainful work due to his service-connected disabilities. Accordingly, extraschedular consideration is not warranted, and his claim for entitlement to TDIU is denied. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Casey, Associate Counsel