Citation Nr: 18148342 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 14-13 500 DATE: November 8, 2018 ORDER Entitlement to service connection for a lumbar spine disability, to include as secondary to the service-connected right and left knee disabilities, is denied. Entitlement to an increased rating in excess of 10 percent for left knee degenerative changes (left knee disability) is denied. A separate rating of 10 percent for left knee instability under Diagnostic Code 5257 is granted. Entitlement to an increased rating in excess of 10 percent for right knee degenerative joint disease (right knee disability) is denied. A separate rating of 10 percent for right knee instability under Diagnostic Code 5257 is granted. FINDINGS OF FACT 1. The current lumbar spine disability was not incurred in service, is not otherwise related to service, did not manifest within one year of service separation, and was not caused or aggravated by the service-connected right and left knee disabilities. 2. For the entire rating period on appeal, the Veteran’s left and right knee disabilities have not been productive of ankylosis, dislocation or removal of the semilunar cartilage, flexion limited to 30 degrees or less, extension limited to 15 degrees or more, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. 3. For the entire rating period on appeal, the Veteran’s left and right knee disabilities have been productive of slight instability. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for an evaluation in excess of 10 percent for left knee degenerative changes have not been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256, 5258-5263 (2017). 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for a separate 10 percent rating for left knee instability have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2017). 4. The criteria for an evaluation in excess of 10 percent for right knee degenerative joint disease have not been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256, 5258-5263 (2017). 5. Resolving reasonable doubt in the Veteran’s favor, the criteria for a separate 10 percent rating for right knee instability have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1974 to October 1983. This appeal is before the Board of Veterans’ Appeals (Board) from December 2011 and December 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Atlanta, Georgia RO has jurisdiction of the current appeal. In April 2017, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In December 2017, the Board remanded the issue on appeal to the Agency of Original jurisdiction (AOJ) in order to obtain outstanding treatment records. The above-referenced development has been completed, and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection 1. Lumbar spine disability The Veteran seeks service connection for a lumbar spine disability. She contends that she fell and injured her back in service. She also asserts that her back disability is secondary to her service-connected right and left knee disabilities. See, e.g., April 2014 VA Form 9; April 2017 Board hearing transcript. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Federal law specifically limits entitlement for service-connected disease or injury to cases where such incidents result in a disability. It is not enough for a claimant to seek some sort of benefit simply because he had a disease or injury on active duty. In the absence of proof of a current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (upholds Court of Appeals for Veterans Claims decision to require a current existing disability). For certain chronic diseases, including cardiovascular disease and arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303 (b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, the record reflects that the Veteran has been diagnosed with lumbar disc degeneration, desiccation, and mild scoliosis. See, e.g., March 2013 VA examination report. For the reasons set forth below, the Board finds that the evidence weighs against that the Veteran’s lumbar spine disability was incurred in service, is otherwise related to service, or caused or aggravated by the service-connected right and left knee disabilities. Service treatment records (STRs) show no complaints of, treatment for, or diagnosis of a lumbar spine disability. A June 1978 periodic examination report shows a normal clinical evaluation of the spine. While the Veteran asserts that she injured her back as a result of an in-service fall, STRs show no evidence of such fall. Accordingly, the Board finds that the Veteran’s assertions of an in-service injury to the back are not credible. In this regard, the Board is not relying on the absence of evidence, but on the contemporaneous evidence, including reports by the Veteran, showing that the Veteran did not have any complaints pertaining to the lumbar spine during service. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Cf. AZ v. Shinseki, 731 F.3d 1303, 1315-18 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran’s failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). While not dispositive, the post-service evidence does not reflect complaints or treatment related to a lumbar spine disability for at least 18 years following separation from active service. The first post-service evidence of a complaint of a lumbar spine condition was in a June 2001 VA treatment record (Veteran reported low back pain). Moreover, a February 2010 VA treatment record shows that the Veteran reported back pain after a motor vehicle accident which had taken place one week earlier. See also March 2010 and June 2010 VA treatment records. The Board emphasizes the multi-year gap between discharge from active duty service to when the Veteran sought medical care for her back problems (2001) is a factor that weighs against in-service onset of a lumbar spine disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board’s denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). The Veteran asserts that she was told by her physical therapist at the Huntington, West Virginia VA Medical Center (Huntington VAMC) that the service-connected right and left knee disabilities aggravate the claimed back disability. See April 2017 Board hearing transcript. However, the record does not contain such opinion by the Veteran’s physical therapist. Despite leaving the record open for more than 60 days after the April 2017 Board hearing and the opportunity given to the Veteran to provide additional evidence after the December 2017 Board remand, she did not provide any medical opinion that the lumbar spine disability may be related to the service-connected right and left knee disabilities. Moreover, VA obtained all of the Veteran’s VA treatment records through 2018, which do not contain the purported opinion by the Veteran’s physical therapist. The Veteran has not otherwise submitted any medical evidence that her current lumbar spine disability may be related to service or the service-connected right and left knee disabilities, other than her general assertions that her current lumbar spine disability is related to an in-service fall or secondary to the service-connected right and left knee disabilities. Although lay persons are competent to report low back symptoms experienced at any time, as well as provide opinions on some medical issues, the specific disability in this case, lumbar disc degeneration, desiccation, and mild scoliosis, falls outside the realm of common knowledge of a lay person. Kahana, 24 Vet. App. 428; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Veteran statements purporting to link the current lumbar spine disability to service or to the service-connected right and left knee disabilities are assigned no probative value. Finally, as the Veteran’s arthritis of the lumbar spine has not been shown to have manifested within one year of service separation, the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309(a) are not applicable in this case. For these reasons, the Board finds that a preponderance of the evidence is against a finding that the Veteran’s lumbar spine disability is related to service or to the service-connected right and left knee disabilities, or that the lumbar spine disability manifested within one year of separation. Accordingly, service connection for a lumbar spine disability must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when her symptoms are most prevalent (“flare-ups”) due to the extent of her pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 2. Left knee disability 3. Right knee disability The Veterans seeks a higher disability rating than 10 percent for degenerative arthritis of each knee. For the entire appeal period, the Veteran has been in receipt of a 10 percent disability rating for degenerative arthritis of each knee based on painful non-compensable limitation of motion. See 38 C.F.R. § 4.59, 4.71a, DC 5003. DC 5003 provides that degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable, a 10 percent rating is for application for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. Alternative and additional diagnostic codes for the knee are available under 38 C.F.R. § 4.71a, as follows: Under 38 C.F.R. § 4.71a, DC 5256, ankylosis of the knee with a favorable angle in full extension, or in slight flexion between 0 and 10 degrees, is rated at 30 percent; ankylosis in flexion between 10 and 20 degrees is rated at 40 percent; ankylosis in flexion between 20 and 45 degrees is rated at 50 percent; and extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated at 60 percent. Under 38 C.F.R. § 4.71a, DC 5257, recurrent subluxation or lateral instability is rated at 10 percent for slight instability, 20 percent for moderate instability, and 30 percent for severe instability. In this case, the Veteran is in receipt of a separate 20 percent rating for instability of each knee, which will be discussed in more detail below. Under 38 C.F.R. § 4.71a, DC 5258, dislocation of semilunar cartilage with frequent episodes of “locking” pain and effusion into the joint is rated at 20 percent. Under 38 C.F.R. § 4.71a, DC 5259, symptomatic removal of semilunar cartilage is rated at 10 percent. Under 38 C.F.R. § 4.71a, DC 5260, flexion of the leg is rated noncompensable when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. In order to warrant a separate rating under DC 5260, the evidence must approximate the functional equivalent of flexion of the leg limited to 45 degrees or less. Under 38 C.F.R. § 4.71a, DC 5261, extension of the leg is rated noncompensable when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. Under 38 C.F.R. § 4.71a, DC 5262, malunion of the tibia and fibula is rated at 10 percent with slight disability, 20 percent with moderate disability, and 30 percent with marked disability. Nonunion of the tibia and fibula, with loose motion and requiring a brace, is rated at 40 percent. Under 38 C.F.R. § 4.71a, DC 5263, acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing is rated at 10 percent. The Board notes that the criteria under DCs 5257, 5260, and 5261 are not considered to be overlapping, and therefore separate ratings can be assigned where appropriate symptomatology is shown. An October 2015 VA treatment record noted full range of motion for all planes of both knees, with no pain at end of range of motion. In November 2012, the Veteran underwent a VA examination. The VA examiner recorded right knee flexion to 115 degrees, with pain beginning at 110 degrees, left knee flexion to 120 degrees, and right and left knee extension to 0 degrees, to include as due to pain and other orthopedic factors and after repetitive use testing. The Veteran had functional loss due to less movement than normal, pain on movement, weakened movement, and incoordination that did not cause any addition loss of right or left knee motion. The Veteran underwent another VA examination of the knees in March 2013. The VA examiner recorded right and left knee flexion to 115 degrees, with pain beginning at 90 degrees, and left knee extension to 0 degrees, with pain beginning at 5 degrees, and right knee extension to 0 degrees, to include as due to pain and other orthopedic factors and after repetitive use testing. The Veteran had functional loss due to less movement than normal, pain on movement, and weakened movement that did not cause any addition loss of right or left knee motion. The Board finds that an evaluation in excess of 10 percent for each knee is not warranted. His current 10 percent rating for each knee is granted for painful motion with functional limitation caused by pain. See DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. § 4.59. Alternative or higher ratings are available for ankylosis, dislocation or removal of the semilunar cartilage, flexion limited to 30 degrees or less, extension limited to a compensable level, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. The Board finds no lay or medical evidence in the record of such manifestations. Neither the Veteran’s treating physicians nor the VA examiners have found any evidence of ankylosis, limitation of flexion to 30 degrees, limitation of extension to 15 degrees, dislocation of the semilunar cartilage, malunion or nonunion of the tibia and fibula, or genu recurvatum. There is evidence of limitation of right and left knee flexion, but not to less than 90 degrees, and limitation of left knee extension, but not to more than 5 degrees. As to functional equivalence, the Board notes that there is evidence of pain and tenderness of the right and left knees; however, the Board finds that these manifestations taken together are not the functional equivalent of a 20 percent rating under the rating criteria, as such symptoms can be accurately described as the painful motion warranting a 10 percent rating for each knee. See 38 C.F.R. § 4.59. Stated differently, neither the objective nor subjective evidence suggests that there is the functional equivalent of limitation of flexion to 30 degrees or that there is limitation of extension to 15 degrees. For these reasons, the Board finds that increased evaluations in excess of 10 percent for each knee are not warranted for the Veteran’s right and left knee disabilities for the entire appeal period. 38 C.F.R. §§ 4.3, 4.7. However, the Board finds that for the entire period of appeal, separate 10 percent ratings are warranted under DC 5257. The Veteran has consistently asserted that her knees gave out, which resulted in falls, and that she uses knee braces for both knees. An October 2012 VA treatment record shows that the Veteran reported that her knees gave out, which resulted in her falling down a set of stairs the previous night. See also December 2012, June 2013, July 2014, and March 2015 VA treatment records (showing that the Veteran reported falls as a result of her knees giving out, and that the Veteran wears bilateral knee braces). A June 2013 VA physical therapist assessed instability likely from knee condition. Affording the Veteran all reasonable benefit of the doubt, the Board equates such symptoms with slight instability. As such, a separate rating of 10 percent for instability of each knee under DC 5257 is granted JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel