Citation Nr: 18149202 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 12-19 417 DATE: November 9, 2018 ORDER Service connection for a left knee disorder as secondary to the right knee disability is denied. Entitlement to a separate compensable rating for right knee instability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The most probative evidence of record indicates that the Veteran’s left knee disorder was not caused or aggravated by the service-connected right knee disability. 2. The Veteran’s right knee disability is evaluated as 60 percent disabling, the same evaluation assigned for a person with amputation of the leg at mid-thigh level. 3. The evidence of record demonstrates that the Veteran is unable to secure or follow substantially gainful employment as a result of his service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). 2. The criteria for a separate compensable rating for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5162 (2018). 3. The criteria for a total disability rating based on individual unemployability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from July 1963 to October 1966. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in June 2010 and August 2012. The Veteran testified at a personal hearing before undersigned Veterans Law Judge (VLJ) Cheryl L. Mason in May 2014. A transcript is of record. VLJ Mason is now the Board’s Chairman. The law prohibits the Chairman from participating in a proceeding as an individual member, but allows participation in a panel. A June 2018 letter provided the Veteran with notice of this and he was given the opportunity to have an additional hearing before the two additional undersigned VLJs assigned to the panel. The Veteran was also informed that if he did not respond, VA would assume he did not want an additional hearing. He did not respond. The Veteran has also perfected an appeal regarding the issue of entitlement to service connection for chronic venous insufficiency and varicose veins. On his April 2016 VA Form 9, he requested a Board hearing, which is awaiting scheduling. Accordingly, this issue will be the subject of a later decision, as necessary. 1. Service connection for a left knee disorder, to include as secondary to the right knee disability Service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran seeks service connection for a left knee disorder. He does not contend, and the evidence does not reflect, that he suffered from a left knee condition during service or during the year following discharge from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309. Rather, he claims that he used his left knee more to guard his service-connected right knee, which caused problems in the left knee beginning in 1983. He contends this eventually led to several on-the-job injuries to the left knee that ended his career. As an initial matter, the Board notes that the Veteran has been diagnosed during the appeal with a left knee disability. In pertinent part, records obtained during the Veteran’s career as a firefighter with the City of Providence, Rhode Island, indicate that he sustained several injuries to his left knee while working, to include an original injury in November 1978 and another injury in October 1988 that appears to have ended his career. When seen privately following the October 1988 injury, it was noted that his left knee was giving way and snapping; it was noted that the injury that month with repeated blows to his knee and twists at work was the probable cause. The Veteran underwent several left knee surgical interventions prior to undergoing a total left knee arthroplasty in February 2000. Accordingly, the first criterion for establishing service connection, a current disability, has been met. The question becomes whether this condition is related to the service-connected right knee disability. On this question, there are opinions in favor of and against the claim. A February 2003 private record indicates that the Veteran discussed his concern that his right knee was causing him to put more pressure on the left side, which had ultimately led to that wearing out somewhat, and that the physician indicated that that can indeed occur. In an August 2003 letter, the Veteran’s physician wrote a letter that indicated the Veteran had questioned whether it was possible that favoring his right knee after it was injured a couple of times ultimately led to injury to his left knee. The physician opined that it was possible. In a December 2014 letter, the Veteran’s private physician provided an opinion that the Veteran’s left knee problems flow from his right knee disability and should be considered part of his military disability. The opinions against the claim are from VA medical examiner. During the May 2010 VA examination, the Veteran reported that his left knee became bothersome after injuring it in 1988 while working as a firefighter. Following detailed physical examination, the examiner provided an opinion that the left knee condition was not caused by or a result of the service-connected right knee disability. The examiner explained that the Veteran had direct trauma to his left knee when he injured it on the job, which was an incident separate from the right knee, and that the Veteran had verified that this was when his left knee pain started. The examiner was not able to provide an opinion regarding whether the Veteran’s right knee disability had aggravated his left knee disorder without resorting to mere speculation since both knees had been bothersome over the years and had led to other injuries from falls or twisting. An addendum opinion was obtained from the May 2010 VA examiner in August 2016. The examiner provided an opinion that the left knee condition is less likely than not proximately due to or the result of the Veteran’s service-connected right knee disability. The examiner explained that based on review of the medical literature for causes of knee osteoarthritis, which include age, trauma, gender, and family history, and the lack of medical literature to support that gait alterations can contribute to the development of osteoarthritis. The examiner noted that the Veteran had discrete injury to the left knee on several occasions while on the job as a firefighter and that per the medical literature, these injuries and subsequent surgeries are the most likely cause of the left knee osteoarthritis and subsequent total knee arthroplasty. The examiner also noted that the medical evidence specific to the Veteran indicated that the Veteran actually had left knee injuries and symptoms worse than the right, which would support an argument that the right knee did not cause or aggravate the left knee osteoarthritis and that, instead, the left knee was the more severely affected joint. The examiner concluded that because of the discrete injury to the left knee resulting in a claim for longterm disability due to the on-the-job injury, it is most likely this is the cause of the current left knee condition. The examiner also provided an opinion that the Veteran’s left knee condition was not at least as likely as not aggravated beyond its natural progression by the service-connected right knee disability. The examiner explained that the Veteran had a discrete injury to his left knee in 1988 while working as a fireman, which was confirmed on magnetic resonance imaging (MRI). The examiner also noted that there was no right knee abnormality noted during the October 1966 separation examination or on an October 1989 MRI, and that the left knee injury was severe enough to cause permanent disability and subsequent osteoarthritis, such that it is not likely the right knee aggravated the left knee beyond its natural progression. The examiner indicated that the natural progression of the left knee anterior cruciate ligament (ACL) tear and meniscus injury to osteoarthritis is predicted based on the defined risk factors for knee osteoarthritis as found in medical literature. The examiner acknowledged the 2003 and 2014 statements from private physicians stating that the left knee could result from the right knee condition, while noting that neither considered the left knee trauma and surgeries as risk factors for osteoarthritis and neither provided a rationale. The examiner concluded that overcompensation on the left knee, as claimed by the Veteran, or gait abnormality as documented in the 2010 examination, would not cause ACL or meniscus tears of the left knee and there is no medical literature supporting cause of or worsening of osteoarthritis of the knee resulting from abnormal gait or overcompensation. Upon review of the record, the Board finds that the preponderance of the probative evidence is against the claim for service connection for a left knee disorder on a secondary basis. The Board finds the opinions provided by the VA examiner in May 2010 and August 2016 to be the most probative opinions of record. These opinions considered the extensive post-service medical evidence related to problems involving both of the Veteran’s knees, to include several work-related injuries to the left knee prior to the October 1988 left knee injury that appears to have ended the Veteran’s career as a firefighter, and an October 1989 MRI of the right knee that was normal. The August 2016 opinion also considered the lack of evidence in medical literature to establish that knee osteoarthritis would be caused or worsened by abnormal gait or overcompensation. As the opinions were provided following review of the claims file and provided adequate rationale for the conclusions reached based on the medical evidence of record specific to the Veteran, the Board finds the opinions to be entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Conversely, the opinions provided by private physicians in 2003 and 2014 are of lower probative value as they did not consider the Veteran’s post-service occupational history of injuries to his left knee and they did not provide any rationale for the opinion expressed. Additionally, the 2003 opinions are speculative. Thus, these opinions are afforded little probative weight. Id. While the Veteran believes that his left knee disorder was caused or aggravated by his service-connected right knee disability, there is no indication that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the etiology of a left knee disorder is a matter not capable of lay observation, and requires medical expertise to determine. Thus, the Veteran’s own opinion regarding the etiology of his left knee disorder is not competent medical evidence. In sum, the most probative evidence indicates that the Veteran’s service-connected left knee disability was not caused or aggravated by the right knee disorder, and service connection is denied. 2. Entitlement to a separate compensable rating for right knee instability Service connection was originally established for status post total knee arthroplasty for degenerative arthrosis, right knee, in a January 2003 rating decision, which assigned a 30 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5055 following the requisite period of convalescence. The Veteran filed the instant claim for an increased rating on February 16, 2010. In the July 2016 decision, the Board increased the evaluation for the right knee disability to 60 percent. The Board’s decision was implemented in a July 2016 rating decision that assigned an effective date of February 16, 2010. The Veteran seeks a separate compensable rating for instability of the right knee. However, the Board notes that the Veteran is now assigned a 60 percent evaluation for residuals of a right knee replacement. Assignment of a higher evaluation based on right knee symptomatology would violate the amputation rule. Specifically, 38 C.F.R. § 4.68 states that the "combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were an amputation to be performed.” Under 38 C.F.R. § 4.71a, Diagnostic Code 5162, an amputation of the middle or lower third of the thigh warrants a 60 percent evaluation. Such level includes the knee. Thus, regardless of whether the Veteran has instability in the right knee, a separate compensable rating cannot be assigned, as doing so would violate the amputation rule. Accordingly, the claim for a separate compensable rating for right knee instability is denied. 3. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran is service-connected for status post total right knee replacement, rated as 60 percent disabling. Since he has one service-connected disability rated at 60 percent since February 16, 2010, the schedular requirements for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a) have been met as of that date. The Veteran testified in May 2014 that he had not worked since 1989 and that his last official day with the fire department was August 23, 1990. He indicated that he worked as a firefighter his whole career after service, from the age of 21 until he had to leave, and that he did not feel he was capable of performing full time competitive work because of his knees. In a VA Form 21-8940 submitted in August 2016, the Veteran reported that his service-connected right knee disability prevented him from securing or following any substantially gainful occupation and that August 23, 1990, was the date his disability affected full-time employment, that he last worked full-time, and that he became too disabled to work. He listed his work as a firefighter between 1967 and 1990 as the only employment he had had, that he left this job because of his disability, and that he received disability retirement benefits. The Veteran also indicated that he had not tried to obtain employment and had not had any education or training since becoming too disabled to work. In a VA Form 21-4192 received in March 2018, the Providence Fire Department indicated that the Veteran had worked there from January 16, 1967, until August 23, 1990, and that he had retired on accidental disability. During an April 2010 VA examination, the examiner noted that the impact of the Veteran’s service-connected right knee disability on occupational activities would be decreased mobility. The examiner who conducted a February 2014 VA examination determined that the Veteran’s right knee disability impacted his ability to work as he would have pain with standing and sitting. The Board has also reviewed records from the Social Security Administration, which include a July 1990 record that indicates the Veteran did not appear capable of returning to work as a firefighter with its requirement of full, vigorous range of motion and muscular power of the lower limbs. Given the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence of record demonstrates that the Veteran is unable to secure and follow a substantially gainful occupation as a result of his service-connected right knee disability. Accordingly, TDIU is warranted. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals CHERYL L. MASON Veterans Law Judge Board of Veterans’ Appeals K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel