Citation Nr: 18150833 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 13-26 841 DATE: November 15, 2018 ORDER Service connection for degenerative joint disease (DJD) of the lumbar spine, as secondary to service-connected left knee disability, is granted. Service connection for DJD of the right knee, as secondary to service-connected left knee disability, is granted. Whether a January 13, 1988 decision that reduced the evaluation of the Veteran’s service-connected left knee disability, should be revised or reversed on the grounds of clear and unmistakable evidence (CUE), is denied. FINDINGS OF FACT 1. The Veteran’s DJD of the lumbar spine and right knee were caused by his service-connected left knee disability. 2. The Veteran did not appeal the January 1988 rating decision that reduced the Veteran’s left knee rating. 3. There was no CUE in the January 1988 rating decision that reduced the Veteran’s left knee rating. CONCLUSIONS OF LAW 1. The criteria for service connection for DJD of the lumbar spine, as secondary to service-connected left knee disability, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for DJD of the right knee, as secondary to service-connected left knee disability, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The January 13, 1988 decision that reduced the evaluation of the Veteran’s left knee disability is final. 38 U.S.C. § 4005 (1988); 38 C.F.R. §§ 19.129, 19.192 (1988). 4. The criteria for revising or reversing the January 13, 1988 rating decision that reduced the evaluation of the Veteran’s service-connected left knee disability, on the grounds of CUE, have not been met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105; 38 C.F.R. §§ 3.105, 4.71a, Diagnostic Code DC (5259) (1988). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to December 1985. The case is on appeal from a June 2009 rating decision denying the Veteran’s CUE request and a November 2011 rating decision denying service connection for the claimed low back and right knee disorders. In October 2016, the Veteran and his spouse testified at a Board hearing on the service connection issues now on appeal. In March 2017, the Board remanded the service connection issues for additional development. At that time, the Board also remanded the CUE issue for issuance of a statement of the case (SOC). An SOC was issued in December 2017. Subsequently, the Veteran perfected an appeal as to that issue. Thus, the CUE issue is also on appeal. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(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”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. 1. Service connection for DJD of the lumbar spine, to include as secondary to a service-connected left knee disability. 2. Service connection for DJD of the right knee, to include as secondary to a service-connected left knee disability. The Veteran contends, in relevant part, that his DJD of the lumbar spine and of the right knee were caused by his already service-connected left knee disability. The only issue necessary to resolve is the relationship between the disabilities. The Veteran had the first VA examination in October 2011. He was diagnosed with a lumbosacral strain and DJD of the right knee with a date of diagnosis of 2011. In the medical history section for the back, the pain was described as of gradual onset, starting approximately four months prior without specific trauma. With regard to history of the right knee, the examiner noted the car injury to the left knee during service and that the Veteran reported progressively worsening pain in the left knee over time. The examiner noted that pain in the right knee had begun about one year prior without specific trauma and gradually worsening. The examiner opined that the low back disability was less likely than not proximately due to the Veteran’s service-connected left knee. The examiner stated that on review of literature, no references could be found regarding knee pathology directly causing chronic low back pain or DJD of the spine. The examiner stated that this was “most likely a separate condition relating to mechanical low back strain.” The examiner also opined that the right knee was less likely than not proximately due to the service-connected left knee. The rationale was that the examiner found no evidence in medical records or in literature of a causal relationship between degenerative joint disease in contralateral knee being caused by gait disturbance or meniscal injury of opposite knee. Based on his Board hearing testimony, the Veteran was afforded another VA examination in January 2018 pursuant to the Board remand. The examiner acknowledged the Veteran was service connected for his left knee, but stated there was no evidence in medical literature to support that dysfunction in one joint causes dysfunction in another joint except in the instance of severely altered gait, such as trandelenburg lurch, which was not present in this case. The Veteran submitted a private medical opinion relating to his back and right knee. In a submission dated February 2018, the physician reviewed examinations, “some health records,” and conducted a personal interview. The physician stated that as a result of the physiologic overcompensation for his left knee injury, the initial injury appeared to have initiated degenerative changes to the lumbar spine by overuse and by irregular physical mechanics of movement. Thus, it was this examiner’s opinion that the Veteran’s back disability was more likely than not caused by his original left knee injury and had worsened over time to the point of regular pain and disability in the lumbar spine. Similarly, the Veteran also submitted medical opinions relating to his right knee. An opinion dated March 2017 stated that “long term repetitive stress syndrome of the right knee was a direct result of the injury to the left knee.” This examiner indicated that the claims file had not been reviewed. A private opinion dated February 2018 stated that the Veteran’s left knee injury during service resulted in excessive splinted walking and compensation by bearing weight much more on his right lower extremity. As a result of this physiologic overcompensation the injury caused him to compensate in a fashion that appears to have initiated degenerative changes to the right knee by overuse and by irregular mechanics of movement. Thus, it was opined that the Veteran’s right knee was more likely than not caused by the original left knee injury and had worsened over time to the point of regular pain and disability in the right knee. In July 2018, the Board obtained an expert opinion from the Veterans Health Administration (VHA) by an orthopedic surgeon. He opined that it was less likely than not that the Veteran’s low back and right knee disabilities were caused or aggravated by his left knee as the literature does not support that one degenerative joint can directly cause the degeneration of another joint. Finally, in October 2018, the Veteran submitted an opinion from Dr. Samagh dated in September 2018. Dr. Samagh opined that the Veteran’s low back disability, as a result of long-term altered gait, is proximately due to or the result of the Veteran’s left knee disability. Dr. Samagh also opined that the Veteran’s right knee disability, as a result of long-term repetitive stress syndrome of the right knee and altered gait, is proximately due to or the result of the Veteran’s left knee disability. These conclusions were reached after a thorough summary of the Veteran’s left knee, and back and right knee problems during and after service. The opinion also connects the specific facts of this history to the question asked. Further, this opinion is consistent with the February 2018 opinion submitted by the Veteran. As a result, it is the most persuasive medical opinion of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). By contrast, the Board finds somewhat less persuasive the October 2011, January 2018 and July 2018 VA medical opinions, as they primarily rely only upon citation to medical literature generally without addressing the specific claims of the Veteran. At the least, the nexus element of the claims is in equipoise. Therefore, when resolving reasonable doubt in the Veteran’s favor, the Board finds that the his DJD of the lumbar spine and right knee were caused by his service-connected left knee disability. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for DJD of the lumbar spine and DJD of the right knee on a secondary basis.   Clear and Unmistakable Error 3. Whether a January 13, 1988 that reduced the evaluation of the Veteran’s service-connected left knee disability should be revised or reversed on the grounds of CUE. Procedural History and Finality Shortly after service, in January 1986, the Veteran submitted an application for benefits that included a claim of service connection for a left knee injury. Although no VA examination was able to be conducted at that time, in a May 1986 rating decision, the RO granted service connection for a left knee disability. It was characterized as post-operative discoid lateral meniscus. An initial 10 percent rating was assigned effective December 13, 1985. This was based on the evidence in the service treatment records, but a future examination was to be scheduled for anticipated improvement. Thereafter, a VA examination of the left knee was conducted in December 1987. By a January 1988 rating decision, the reduced the Veteran’s compensation for his left knee disability from 10 percent to zero percent based on the December VA examination, effective April 1, 1988. He was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. There is no contention that the Veteran did not receive the notification letter. The letter informed him of the reduction and that he had 60 days to submit additional evidence and 30 days to request a hearing on the proposed action. The Veteran was also informed that he could appeal the action to the Board. Thereafter, nothing further regarding the left knee rating was received until an August 2000 claim for increase. No new evidence or notice of disagreement (NOD) was received by VA within one year of the January 1988 notification letter or implementation of the reduction on April 1, 1988. As the Veteran did not appeal the decision, the 1988 reduction in his left knee disability rating is final. See 38 U.S.C. § 4005 (1988); 38 C.F.R. §§ 19.129, 19.192 (1988).   Legal Criteria A CUE motion is a collateral attack on a final RO decision. See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). CUE is established when the following conditions are met. First, either (1) the correct facts in the record were not before the adjudicator, or (2) the statutory or regulatory provisions in existence at the time were incorrectly applied. Second, the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated.” Finally, the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014). See also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). “CUE is a very specific and rare kind of ‘error’... of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error…[I]f it is not absolutely clear that a different result would have ensued,” based upon the facts and law that were understood at the time of the decision, then any error that may have occurred in a final RO decision is not clear and unmistakable. Evans, 27 Vet. App. at 185-86 (quoting Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993)). Analysis In January 2009, the Veteran’s representative set forth the CUE contention. She stated that the December 1987, on which the reduction was based, shows subjective and objective evidence that his left knee was symptomatic. For instance, the examiner noted that he could hear clicking with every step the Veteran took, that there was tenderness at the juncture of the lower end of the patella and patellar tubercle. Further, the Veteran, during the examination, noted pain during cold weather. Essentially, the contention is that the 10 percent rating should not have been reduced. The Veteran also contends that the December 1987 VA examination report is incomplete. Specifically, in his January 2018 appeal to the Board, he states that he reported to the examiner that he had just been laid from work because of his inability to perform due to his left knee. The Veteran also states that the bike ride to work was only a quarter mile, that he had to ice his knee daily, and that his knee locked, was unstable, and became swollen daily. He also claims that the range of motion measurements were based on him manipulating his leg. Thus, the Veteran believes the results of the examination were a misrepresentation of the problems he was having with his left knee at that time. The Veteran makes no contention as to application of the reduction procedures in the January 1988 rating decision based on the provisions at that time. See 38 C.F.R. § 3.105(e) (1988). No CUE issue based on this theory has been raised or reasonably raised by the record. In the May 1986 rating decision granting service connection, the Veteran’s left knee disability was rated under 38 C.F.R. § 4.71a, DC 5259, which provided for a 10 percent rating for symptomatic semilunar cartilage (meniscus) removal. The December 1987 VA examination report reveals that the examiner did hear a click with the Veteran’s every step. On examination, there was no swelling. Tenderness was found at the juncture of the lower end of the patella and patella tubercle. The Veteran revealed that he rode a 10-speed bike to work and that his knee bothered him in the cold. Left knee extension was to z degrees and left knee flexion was to 130 degrees. Imaging showed minimal, if any, joint effusion and no evidence of tissue swelling. There were three, minute, well-healed arthroscopy scars. No radiologic abnormalities of the knee where demonstrated. In the January 1988 rating decision, when reducing the left knee rating, the rating board noted the lack of radiologic abnormalities in the knee, lack of swelling, the clicking sound, and tenderness. The January 1988 rating decision was not the product of CUE. The rating board listed the facts as described; however, no swelling or abnormality was found on imaging. From this, a reasonable mind could conclude tenderness at the lower end of the patella and patella tubercle and clicking upon ambulation were not indicative of functional limitation. Further, subjective reports of pain were intermittent, occurring only in cold weather. Thus, the Board cannot say that the Veteran’s left knee clearly and unmistakably was symptomatic based on the facts that were before the rating board at the time of the January 1988 rating decision. That is, it is not undebatable that there is an outcome determinative error. Reasonable minds could differ on weighing the evidence that improvement was affirmatively shown. This cannot constitute CUE. See Evans, 27 Vet. App. at 185, 187. Additionally, reasons and bases, including listing all of the laws and facts considered, was not required in RO rating decisions at that time. See Natali v. Principi, 375 F.3d 1375 (Fed. Cir. 2004) (“Such recitations have not been required for rating decisions that predated the Veterans’ Benefits Amendments of 1989, Pub. L. No. 101-237, 103 Stat. 2062 (1988), which added the statutory provision mandating that decisions denying benefits include a statement of the reasons for the decision.”). Moreover, the January 1988 rating decision included a doctor on the rating board who could competently consider whether the left knee condition was symptomatic at that time and whether improvement was affirmatively shown. See Macklem v. Shinseki, 24 Vet. App. 63, 70 (2010) (VA rating boards previously included physicians). (Continued on the next page)   Lastly, the Veteran’s contention that the December 1987 VA examination was not an accurate representation of the state of his left knee condition amounts to a theory of a duty to assist violation for an inadequate VA examination. This cannot form the basis of CUE. See Evans, 27 Vet. App. at 195 (citing Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002)). The Veteran’s January 2018 recollection of his left knee problems at that time may not be considered in the CUE analysis as it was not of record at the time of the January 1988 rating decision. As result, the Board concludes that the January 13, 1988 rating decision was not a product of CUE based on the theories presented, and revision or reversal of that decision is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George