Citation Nr: 18159111 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 09-14 027 DATE: December 19, 2018 ORDER Service connection for left foot gout, to include as secondary to a service-connected right knee disability, is denied. A rating in excess of 20 percent for right knee limitation of flexion is denied. Since June 21, 2006, an initial 10 percent rating, but no higher, for right knee instability is granted. REMANDED Service connection for degenerative disc disease of the lumbar spine, to include as secondary to service-connected right knee disability, (hereinafter a low back disability), is remanded. FINDINGS OF FACT 1. The Veteran’s left foot gout did not manifest during or as a result of active military service, nor did it arise, or become aggravated, as a result of the Veteran’s service-connected right knee disability. 2. The Veteran’s right knee disability is not manifested by objective evidence of flexion limited to 15 degrees or less. 3. Since June 21, 2006, the Veteran’s right knee disability is manifested by slight lateral instability. CONCLUSIONS OF LAW 1. The criteria for service connection for left foot gout, including as secondary to service-connected right knee disability, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a rating in excess of 20 percent for right knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260. 3. Since June 21, 2006, the criteria for a separate 10 percent rating, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1970 to May 1972. The Veteran initially requested a Travel Board hearing in his March 2009 substantive appeal, but the Veteran withdrew his hearing request in August 2010. This case was most recently remanded in June 2017 for further development. Service Connection The Veteran contends that his left foot gout was caused by his service-connected right knee disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran received a VA examination in September 2006 and reported a spur at the metatarsophalangeal joint, with pain during gout flares. The examiner noted a gouty tophus associated with the Veteran’s gout. The examiner opined that the Veteran’s left foot condition was not a result of his right knee condition. On VA examination in June 2017, the examiner reviewed the Veteran’s medical history and stated that the Veteran’s prior gout had resolved and there was no indication at the time that the Veteran had left foot gout. The Veteran indicated that his last gout flare was around 2015, which he treated with old prescribed medication. However, the examiner indicated that the based upon VA records, the Veteran had not been prescribed medications for gout since 2004. Additionally, the Veteran stated that he had a bone spur in his left foot that bothered him much more than the prior gout. The examiner opined that the Veteran’s prior left foot gout had fully resolved without any sequelae for many years. He noted that the Veteran’s last “true” left foot gout flare was prior to 2004, based in part on normal uric acid levels in 2011, 2013 and 2014. Since the Veteran’s first gout flare was in 2002, decades after service, the examiner opined that the Veteran’s left foot gout was not related to his time in service. Additionally, the examiner concluded that the Veteran’s prior left foot gout was not caused or aggravated by his service-connected right knee condition because knee degenerative joint disease does not lead to or aggravate gout in the foot. Based on the examiner’s opinion and the other evidence of record, the Board also reasonably infers that gout is not caused or aggravated by the right knee condition because gout is no longer active despite the ongoing presence of the right knee disability. Based on the foregoing, the Board finds that the most probative evidence of record establishes that the Veteran’s prior gout was not was caused or aggravated by his service-connected right knee disability. There is no probative medical evidence demonstrating a causal link between the Veteran’s right knee disability and his prior gout. Although the Veteran claims gout secondary to service-connected right knee disability, VA must explore all potential avenues for service connection. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that a veteran is not precluded from establishing service connection with proof of actual direct causation). Service treatment records are silent for complaints or diagnosis of gout. The June 2017 VA examiner noted that the Veteran’s gout began 30 years after separation from service and thus it was not related to his military service. There is no probative medical evidence demonstrating a causal link between the Veteran’s gout and his active duty service. The Board acknowledges the Veteran’s lay statements regarding his various post-service flare-ups and treatment of gout. While the Veteran is competent to describe his symptoms, without medical training, he has not demonstrated the competency to opine on matters requiring medical expertise, such as the etiology or natural progression of gout. See Jandreau, 492 F.3d at 1376. As such, the Board assigns little probative weight to the Veteran’s assertions that his gout is related to his military service or to his service-connected right knee disability. As the weight of the evidence is against this claim, the “benefit of the doubt” rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating The Veteran seeks an increased rating for his service-connected right knee disability. He is currently assigned a 20 percent rating under Diagnostic Code 5010-5260. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson, 12 Vet. App at 119; Hart v. Mansfield, 21 Vet. App. 505 (2008). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Under Diagnostic Code 5260, a 20 percent evaluation is for application where flexion is limited to 30 degrees. A 30 percent rating applies where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, pertaining to limitation of leg extension, a noncompensable evaluation is assigned where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. Id. Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, or a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Id. The normal range of motion of the knee is from 0 degrees extension and flexion to 140 degrees. 38 C.F.R. § 4.71, Plate II. Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Precedent opinions of the VA’s General Counsel have held that dual ratings may be given for a knee disorder, with one rating for instability (Diagnostic Code 5257) and one rating for arthritis with limitation of motion (Diagnostic Codes 5003 and 5010). VAOPGCPREC 9-98 (63 Fed. Reg. 56,704 (1998)) and 23-97 (62 Fed. Reg. 63,604 (1997)). Another such opinion held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (69 Fed. Reg. 59988 (2004)). Turning to the evidence of record, the Veteran received a VA examination in September 2006 and reported an increase in pain since his last examination. He described the pain as constant and reported occasional instability. He also stated that he had flare-ups with prolonged walking. Physical examination revealed flexion limited to 120 degrees, though pain reduced flexion by an additional 20 degrees. The knee was stable and there was no joint effusion or swelling. The examiner noted medial and lateral meniscus tears and degenerative joint disease. A June 2009 VA physical therapy note indicated the Veteran had recurrent falls and needed a cane for assistance. Additionally, an October 2010 VA treatment note indicated the Veteran had also fallen one week prior and experienced right hip pain and right rib pain as a result. On VA examination in June 2017, the examiner noted diagnoses of a right knee meniscal tear from 2006 and right knee joint osteoarthritis. The Veteran told the examiner that he had slipped on ice outside of his house in 2006, but he did not recall any other falls. He reported flare-ups with prolonged walking. The Veteran denied that his knee locked up. Although he stated that his right knee had felt unstable on about three occasions within the past year, he denied any recent falls due to his right knee. Range of motion testing revealed flexion limited to 90 degrees, with pain on flexion and on weight-bearing. The pain did not contribute to functional loss. There was no localized tenderness or objective evidence of crepitus. Muscle strength was 5/5 and joint stability was normal throughout. The examiner found no history of recurrent subluxation, lateral instability, or recurrent effusion, or any evidence of shin splints, muscle atrophy, or ankylosis. The examiner noted a meniscal tear, but no evidence of locking. The Veteran attributed his knee pain to torn medial meniscus. The Veteran reported regular use of a cane for the past 10 years to assist with getting in and out of chairs. Imaging studies documented arthritis bilaterally. As to functional impact, it was noted that walking, standing, and sitting bothered the Veteran’s back and knee, and he avoided heavy lifting due to his condition. During a September 2017 VA orthopedic consultation, the Veteran described pain worsened by walking and prolonged standing. He denied any locking, popping, clicking, weakness, numbness, or tingling. He further stated that he did not have any issues walking up or down stairs. Range of motion was “good” and strength was 5/5. Upon review of the evidence, the Board finds that the evidence does not support an increased rating for the Veteran’s right knee disability based on limitation of flexion. Throughout the period on appeal, the evidence does not suggest that the Veteran’s knee right knee disability is so disabling as to approximate flexion limited to 15 degrees as contemplated with the assignment of a rating in excess of 20 percent for flexion of the knee. At worst, flexion of the right knee was limited to 90 degrees at the June 2017 VA examination. Therefore, a rating in excess of 20 percent for the Veteran’s right knee limitation of flexion is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board has considered functional impairment due to the Veteran’s service-connected right knee disability and acknowledges the subjective complaints of constant pain made throughout the course of the Veteran’s claim, as well as the objective evidence of pain on movement at the VA examinations in September 2006 and June 2017. While the Veteran experiences pain, the Board finds that the 20 percent evaluation for limitation of flexion assigned for the right knee adequately portrays any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his knee. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Therefore, a higher evaluation for the right knee based on functional loss is not warranted. See DeLuca, 8 Vet. App. at 204-06. Regarding whether a separate rating under Diagnostic Code 5257 for lateral instability or recurrent subluxation is warranted for the right knee, the Board finds that there has been no evidence of subluxation. However, the medical and lay evidence shows that the Veteran’s knee disability resulted in instability. While the September 2006 and June 2017 VA examinations showed objectively normal stability, the Veteran has consistently reported recurrent falls throughout the appeal period. He also reported instability to the September 2006 VA examiner and the June 2017 VA examiner noted that the Veteran experienced instability at least three times within the past year. Additionally, the evidence demonstrates the Veteran slipped on ice in 2006. He is consistently noted to require a cane for ambulation and stability. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that a separate 10 percent rating, but no higher, is warranted for right knee instability that is slight in severity. A 20 percent rating is not warranted, as the overall evidence does not show objective evidence of instability or a frequency of falls consistent with moderate right knee instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board has also considered whether the Veteran is entitled to any additional separate ratings for his right knee disability. Limitation of extension to 5 degrees is required for a rating under 5260 and is not demonstrated. The clinical evidence does not establish ankylosis, removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5259 5262, and 5263 are not for application. With respect to dislocated semilunar cartilage, the Board acknowledges that the September 2006 and June 2017 VA examiners noted a meniscal tear with pain. However, there has been no evidence of locking or effusion. 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 are not warranted for dislocated semilunar cartilage. See 38 C.F.R. § 4.71a, Diagnostic Code 5258. Accordingly, the preponderance of the evidence is against the claim for a rating in excess of 20 percent for right knee limitation of flexion. However, resolving all reasonable doubt in favor of the Veteran, the Board finds that a separate 10 percent rating, but no higher, is warranted for right knee instability. REASONS FOR REMAND Entitlement to service connection for a low back condition is remanded. The Veteran contends that his current low back condition is related to his military service. Specifically, he claims that his back condition is secondary to his service-connected right knee disability. The Veteran received a VA examination in September 2006 and the examiner noted a diagnosis of mild degenerative disc disease. The examiner opined that the orthopedic literature did not create a correlation between knee injury and lumbar spine degeneration, and thus it was less likely than not that the Veteran’s low back condition was caused by his right knee condition. A June 2009 VA physical therapy note indicated the Veteran had recurrent falls and used a cane for assistance. An October 2010 VA treatment note indicated the Veteran had fallen one week prior and had resultant right hip pain and rib pain. On VA examination in June 2017, the examiner opined that the Veteran’s back condition was less likely than not due to his period of service. The examiner noted that the Veteran’s low back pain began in the early 2000s, and that the back symptoms and right knee condition both worsened after a fall on ice in 2006. Nonetheless, the examiner concluded that the Veteran’s back condition was less likely than not caused or aggravated by his service-connected right knee disability. The examiner’s statements are not clear as to whether the Veteran’s 2006 fall aggravated his back condition. The Board’s decision herein grants a separate rating for instability of the right knee from June 21, 2006. It is noted that the Veteran has repeatedly reported falls and instability throughout the appeal period. In light of the foregoing, an addendum opinion is necessary to determine whether the Veteran’s low back condition was caused or aggravated by his now service-connected right knee instability. The examiner should address the Veteran’s lay statements regarding his prior falls, including the 2006 fall on ice. The matter is REMANDED for the following action: (a.) Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s current low back disability is at least as likely as not (1) proximately due to service-connected right knee instability or (2) aggravated beyond its natural progression by service-connected right knee instability. (b.) The examiner should specifically address whether the Veteran’s 2006 fall aggravated his low back disability. Shamil Patel Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Freeman, Associate Counsel