Citation Nr: 18115271 Decision Date: 07/02/18 Archive Date: 06/29/18 DOCKET NO. 13-16 120 DATE: July 2, 2018 ORDER Entitlement to service connection for peripheral venous insufficiency of the left lower extremity is denied. Entitlement to service connection for peripheral venous insufficiency of the right lower extremity is denied. Entitlement to an increased rating, in excess of 10 percent, for degenerative joint disease of the left knee is denied. REMANDED Entitlement to service connection for left heel spur is remanded. Entitlement to service connection for right heel spur is remanded. Entitlement to service connection for left shoulder osteoarthritis, including as secondary to right shoulder strain is remanded. FINDINGS OF FACT 1. The Veteran does not have a diagnosis or confirmed clinical findings of peripheral venous insufficiency of the left lower extremity. 2. The Veteran does not have a diagnosis or confirmed clinical findings of peripheral venous insufficiency of the right lower extremity. 3. The Veteran's left knee disorder manifests as limitation of motion from 10 to 90 degrees with pain and swelling. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral venous insufficiency of the left lower extremity have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for entitlement to service connection for peripheral venous insufficiency of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 3. The criteria for a rating in excess of 10 percent for degenerative joint disease of the left knee have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124, Diagnostic Codes 5003-5260, 5261 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1981 to February 2006. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012). Establishing service connection generally requires competent evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a) (2017). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). Service connection could be 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). Secondary service connection is also warranted for any permanent increase in severity (aggravation) 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). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a) (2012). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for peripheral venous insufficiency of the left lower extremity 2. Entitlement to service connection for peripheral venous insufficiency of the right lower extremity The Veteran contends that she is entitlement to service connection for bilateral lower extremity peripheral insufficiency, including as secondary to her service-connected bilateral varicose veins. At a January 2016 VA artery and veins examination, the examiner diagnosed bilateral lower extremity peripheral insufficiency and determined that it was a progression of the Veteran’s service-connected bilateral varicose veins; however, the examiner did not provide any rationale or detail any clinical findings that supported that conclusion. A March 2016 opinion from a different medical professional, who did not perform an examination of the Veteran, states that the January 2016 VA examination report was negative for any signs of lower extremity peripheral vein insufficiency and negative for any abnormal skin pigmentation and edema. The medical professional also indicated that the 2011 VA artery and veins examination was negative for any signs or symptoms of lower extremity peripheral vein insufficiency and concluded that no diagnosis was warranted. The Veteran has submitted private treatment record relating to treatment for her service-connected bilateral lower extremity varicose veins; however, none of these records demonstrate a diagnosis of peripheral vein insufficiency. In a November 2016 Substantive Appeal, the Veteran took issue with the March 2016 opinion, and stated that had she been examined by a medical professional who provided an opinion regarding a diagnosis that he or she would have seen signs of excess swelling in her ankles and feet and pooled blood and bruising on the inside of the feet. Significantly, various other VA examinations document objective evidence of swelling in the feet and ankles. Pursuant to Board remand, the Veteran was afforded a VA examination in April 2018. The examiner reviewed the Veteran's records and noted that a diagnosis of chronic venous insufficiency per UPTODATE, used as medical reference, is defined as the presence of more advanced, functional abnormalities and clinical signs of significant edema, skin changes like hyperpigmentation and/or ulceration of lower extremity. The examiner stated that the Veteran had varicose vein sclerotherapy of both lower extremities while in service. Her December 2005 discharge examination was unremarkable. She reported recurrence/progressive varicosities associated with pain in both lower extremities so in Aug 2016 and Oct 2016 she had sclerotherapy. The Veteran denied venous doppler being done for her varicose veins or claimed chronic peripheral venous insufficiency. Currently, she reported tenderness in the varicose veins on both calves and bilateral popliteal areas (back of knees) and stated that her symptoms worsened because of sedentary job. She bought knee high compression stocking on her own and had not been prescribed thigh high compression stockings since service. Upon examination, the examiner found that the Veteran did not exhibit edema, including none of hyperpigmentation skin changes or ulceration to satisfy this diagnosis. There was telangiectasia, spider veins and varicose veins (3mm or greater in diameter) present in both lower extremities. The examination also did not show any eczema, hyperpigmentation, chronic inflammation of the skin and subcutaneous tissue like lipodermatosclerosis, or healed or active venous ulcers. The examiner opined that the claimed condition was less likely than not due to service or secondary to a service-connected disorder. Specifically, the examiner opined that the Veteran has “varicose veins with reticular vein, spider veins but no objective signs of peripheral venous insufficiency including edema, hyperpigmentation, eczema as defined by UPTODATE and by the International consensus conference on chronic venous disorders and the European Vascular medicine experts.” Upon review of the record, the Board finds that service connection is not warranted as the Veteran does not have a diagnosis or other verified clinical findings of chronic venous insufficiency of the bilateral lower extremities. The Board recognizes that there was evidence of swelling in the feet and ankles in the records; however, as explained by the April 2018 VA examiner, the evidence does not show the entirety of symptoms necessary for such a diagnosis. Absent evidence of a current disability, a claim for service connection must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board has considered the Veteran's lay statements and finds her to be competent and credible to describe her symptoms; however, the Board finds the expert medical opinion by the VA examiner to be more probative as to the existence of a diagnosis. Therefore, the service connection is denied. 3. Entitlement to an increased rating in excess of 10 percent for degenerative joint disease of the left knee Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The Veteran is presently in receipt of a 10 percent rating for degenerative joint disease of the left knee under Diagnostic Code 5003-5260. This was assigned when evidence revealed full extension and noncompensable limitation of flexion of the knee to less than 140 degrees. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize 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. Under Diagnostic Codes 5003, arthritis 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 however, the limitation of motion of the specific joint or joints involves is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affect by limitation of motion. Under Diagnostic Code 5260, a noncompensable rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. The Veteran underwent a VA examination in July 2011. The examiner noted crepitus, tenderness, grinding, and guarding but found no crepitation, clicking or snapping, instability, or patellar abnormality. Range of motion for the left knee was from 0 to 125 degrees, with pain on active motion. Repetitive motion did not cause any additional limitation due to pain, fatigue, weakness, lack of endurance or incoordination. There was no instability of the left knee or ankylosis. In her October 2012 notice of disagreement, the Veteran stated that prolonged standing and sitting cause her to go limp and her knee stiffens and that exercise caused pain, aching, and throbbing. A VA examination on August 2014 found the Veteran's range of motion was reduced with normal extension and flexion limited to 100 degrees. The examiner noted objective evidence of pain with movement. There were no additional functional limitations noted after repetitive movement. The Veteran reported flare-ups of the knee, but the examiner stated it is not possible to determine additional functional limitations during a flare-up without resorting to mere speculation. The examiner noted no instability. Regarding his meniscectomy, the examiner noted residual pain. A September 2014 MRI of the left knee showed complaints of pain, swelling, clicking, grinding, and instability. The doctor noted postsurgical chances of previous partial meniscectomy of the medial meniscus without evidence for meniscal re-tear. She also noted effusion and a small Baker’s cyst. The Veteran underwent a VA examination in March 2017. The examiner noted diagnoses of degenerative joint disease, chondromalacia, and Baker’s cyst. The Veteran reported daily knee pain and flare-ups with overuse. She also stated that her knees are always swollen and stiff. Her range of motion was reduced further with flexion to 90 degrees and extension to 10 degrees. She was unable to squat or bend down due to decreased range of motion. There was pain on movement and objective evidence of pain or tenderness on palpation of the medial joint line. There were no additional functional limitations after repetitive movement. The examiner noted objective evidence of pain with movement, weight-bearing, and crepitus. The examiner also noted that he was unable to estimate any additional functional limitations during a flare-up without resorting to mere speculation. Muscle strength testing was 4 out of 5 with no atrophy. There was no ankylosis and joint stability tests were normal. The examiner further noted fibular impairment. Regarding his meniscal condition, the Veteran underwent multiple meniscectomies. The examiner noted frequent episodes of pain and effusion. “Locking” was not noted. Functionally, the Veteran was unable to squat, bend, kneel, and climb stairs or ladders. Pursuant to the Board remand, the Veteran was afforded a VA examination in April 2018. The Veteran reported progressive left knee pain, stiffness, and instability. She also reported difficulty standing and sitting and she utilizes a knee brace. The Veteran reported glare-ups described as “stiff and swollen more popping involved” and “walk with a limp.” Regarding functional impairment, the Veteran stated that she had limited movement and mobility. An objective examination showed abnormal or outside of normal range of motion from 10 to 130 degrees. Pain was noted upon examination with no functional loss. There was no evidence of pain in non-weight bearing status and no evidence of localized tenderness or pain on palpation. There was pain with weight bearing that did not result in functional loss. The Veteran was ambulatory without an assistive device. The examiner noted crepitus. After repetitive use testing, the Veteran was limited to 120 degrees of flexion. There was also pain with passive range of motion that did not result in functional loss. The examiner was unable to state whether he was additionally limited after repeated use over a period of time or during a flare-up without resorting to speculation. Muscle strength testing was normal with no atrophy. There was no ankylosis. Joint stability testing was normal with no history of recurrent subluxation. The examiner also found no other tibial and/or fibular impairment. Regarding meniscal conditions, the examiner noted a meniscal tear with frequent episodes of joint pain. The Board finds that a rating in excess of 10 percent is not warranted. At no point does the evidence show that the Veteran was limited to more than 10 degrees of extension for a higher rating under Diagnostic Code 5261 or less than 60 degrees of flexion for a compensable rating under Diagnostic Code 5260. Therefore, a higher rating based on limitation of motion is not warranted. The rating should now be assigned pursuant to Code 5261 based on compensable limitation of extension. A separate compensable rating for limitation of flexion would be possible with more significant limitation of flexion. The Board has considered an increased rating based on the Veteran’s meniscus disorder. Under Diagnostic Code 5259, a 10 percent rating is warranted for cartilage, semilunar, removal of, symptomatic and under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of the semilunar cartilage with frequent episodes of joint “locking,” pain, and effusion. Without deciding whether separate ratings could be assigned under Diagnostic Codes 5261 and 5258 or 5259, the facts of this case show such separate ratings would not, in fact, be warranted. Separate ratings are assigned based on symptomatology. Here, the 10 percent rating was based on painful limitation of motion and the Veteran’s symptoms of pain, swelling, and limitation of motion. These are the same symptoms that would be considered by the 10 percent rating under Diagnostic Code 5259 for symptomatic removal of semilunar cartilage. As for assigning a 20 percent rating under Diagnostic Code 5258 instead of the already assigned 10 percent evaluation under Diagnostic Code 5261, the Board finds that the Veteran does not meet the criteria for rating under Diagnostic Code 5258. As already noted, the criteria under Diagnostic Code 5258 include "frequent episodes of 'locking,' pain, and effusion into the joint." The medical evidence is against finding episodes of locking, much less frequent episodes of locking. While there is frequent episodes of pain and joint effusion, meeting two of the three listed criteria is not sufficient to "more closely approximate" the criteria for a rating under Diagnostic Code 5258. 38 C.F.R. § 4.7; Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (use of conjunctive "and" indicates all criteria must be met). The Board has considered the Veteran’s lay reports regarding her symptoms of pain, limitation of motion, and functional impairment. When considered along with the objective findings of the VA examiners and treatment records, the Board finds that there is no probative evidence showing entitlement to an increased rating under the Schedule. Therefore, a rating in excess of 10 percent is not warranted and the Veteran's claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for left heel spur is remanded. 2. Entitlement to service connection for right heel spur is remanded. Remand is necessary for an addendum opinion. The Board notes that the Veteran is already service-connected for a bilateral foot disability. At her December 2006 pre-discharge examination, the examiner diagnosed “small bilateral fourth and fifth toe bunions.” In an April 2006 rating decision, the RO granted service connection for “mild hallux valgus deformity, claimed as bunions.” The Veteran is now claiming entitlement to service connection for bilateral heel spurs, which she believes are secondary to her service-connected disorders. The Veteran underwent a January 2016 VA foot examination and the examiner was asked to provide opinions regarding whether the Veteran’s bilateral “foot pain” was caused or aggravated by her service-connected bilateral lower extremity varicose veins, low back disability, and bilateral knee disability. The examiner indicated that x-rays revealed evidence of bilateral heel spurs and plantar fasciitis, both which cause foot pain. The examiner then provided negative opinions, yet simultaneously said there was not sufficient documentation in the claims file to determine if the service connected conditions caused foot pain. The record also contains a December 2016 VA opinion, wherein a medical professional provided negative opinions regarding any relationship between the Veteran’s bilateral heel spurs and her left leg sciatica. Interestingly, the medical professional’s rationale contained a citation to medical literature discussing factors that increase the risk of developing plantar fasciitis. The medical professional also indicated that radiographic imaging of heel spurs was of “little diagnostic significance,” yet did not provide any further explanation in that regard. Pursuant to Board remand, the Veteran was afforded a VA feet examination in April 2018. The examiner noted diagnoses of plantar fasciitis and heel spurs in January 2017. The examiner opined that the Veteran’s heel spurs were as least as likely as not caused by her service-connected plantar fasciitis. However, the Veteran is not currently assigned service connection for plantar fasciitis. Rather, she is service-connected for bilateral hallux valgus (claimed as bunions, claimed a foot pain). Therefore, an addendum VA examination is necessary to clarify the relevant disorders or diagnoses of the feet, whether they are service-connected, and whether the Veteran's heel spurs are related to service or secondary to a service-connected disorder. 3. Entitlement to service connection for left shoulder osteoarthritis, including as secondary to right shoulder strain The Veteran claims she has a left shoulder disability, which she believes is secondary to her service-connected right shoulder disability. The Board notes that the Veteran has not claimed her left shoulder disability is directly due to her active duty service and her service treatment records do not contain any complaints of or treatment for her left shoulder. Pursuant to the Board remand, the Veteran was afforded a VA examination in April 2018. The examiner opined that her left shoulder disorder is less likely than not proximately due to or the result of the Veteran's service-connected right shoulder disorder. The examiner provided a rationale in support of her opinion. However, no opinion with a supporting rationale was offered regard aggravation. As the February 2018 remand directives explicitly requested an opinion regarding whether it is it at least as likely as not (50 percent probability or better) that any left shoulder rotator cuff syndrome and left AC joint arthropathy was aggravated by the Veteran’s service-connected right shoulder disability, remand is necessary. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the evidence of record before the Board. Any attempt to obtain records should be documented in the claims file. 2. Obtain an addendum opinion regarding the etiology of the Veteran’s diagnosed left shoulder rotator cuff syndrome and left AC joint arthropathy (diagnosed in private records dated January 2013). The claims file must be made available to and reviewed by the medical professional designated to provide the requested opinions. Another VA examination of the Veteran’s left shoulder should only be performed if the medical professional determines that one is necessary. After a review of the evidence of record, to include consideration of medical evidence, as well as the Veteran’s lay statements, the medical professional should state: Whether it is it at least as likely as not (50 percent probability or better) that any left shoulder rotator cuff syndrome and left AC joint arthropathy was aggravated by the Veteran’s service-connected right shoulder disability. A complete rationale for all opinions must be provided. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must provide an explanation for that finding. 3. Obtain an addendum opinion regarding the etiology of the Veteran’s diagnosed bilateral heel spurs. The claims file must be made available to and reviewed by the medical professional designated to provide the requested opinions. Another VA examination of the Veteran’s feet should only be performed if the medical professional determines that one is necessary. After a review of the evidence of record, to include consideration of medical evidence, as well as the Veteran’s lay statements, the medical professional should: Provide all relevant diagnoses of the feet. For each diagnosis, the examiner must opine ether it is it at least as likely as not (50 percent probability or better) due to service, secondary to a service-connected disorder, or aggravated by a service-connected disorder. A complete rationale for all opinions must be provided. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must provide an explanation for that finding. 7. The Veteran is informed that it is her responsibility to report for any scheduled examinations and to cooperate in the development of the claims and that the consequences for failure to report for any VA examination without good cause may include denial of a claim. See 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation showing that she was properly notified of the examination must be associated with the record. 8. THIS IS A COMPLEX CASE. To avoid an additional remand, the AOJ must review all VA medical examination reports and opinions to ensure they are adequate AND that they comply with the Board’s specific remand directives. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel