Citation Nr: 20004432 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 14-40 792 DATE: January 21, 2020 ORDER Entitlement to service connection for left lower extremity radiculopathy is denied. Entitlement to service connection for a heart disorder is denied. Restoration of a 20 percent rating for service-connected osteoarthritis of the right knee with limitation of motion, effective from August 27, 2013, is granted. Entitlement to a rating higher than 20 percent for osteoarthritis of the right knee with limitation of motion is denied. REMANDED The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A preponderance of the evidence indicates that the Veteran does not have left lower extremity radiculopathy. 2. A preponderance of the evidence indicates that heart disorders do not relate to complaints of chest pain during service. 3. Notice of a proposed reduction and of procedural rights under 38 C.F.R. § 3.105 (e) was not issued to the Veteran with regard to the reduction in rating for osteoarthritis of the right knee with limitation of motion. 4. In an October 2014 rating decision, the RO reduced the rating for osteoarthritis of the right knee with limitation of motion from 20 to 10 percent, effective August 27, 2013. 5. The reduction in rating for osteoarthritis of the right knee with limitation of motion resulted in a reduction of the combined disability rating from 40 to 30 percent. 6. The rating reduction for osteoarthritis of the right knee with limitation of motion is void ab initio because the October 2014 rating decision did not follow the due process provisions of 38 C.F.R. § 3.105(e). 7. The Veteran’s pain-free motion in the right knee exceeds 15 degrees flexion and 20 degrees extension. CONCLUSIONS OF LAW 1. The criteria for service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for service connection for a heart disorder have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The criteria for restoration of a 20 percent rating for osteoarthritis of the right knee with limitation of motion, effective August 27, 2013, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 4.71a. 4. The criteria for a rating higher than 20 percent for osteoarthritis of the right knee with limitation of motion have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to February 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified in a hearing convened at the RO before the undersigned Veterans Law Judge. A copy of the hearing transcript is included in the record and has been reviewed. In April 2018, the Board remanded the claims on appeal for additional development. The case is again before the Board for appellate review. Service Connection The Veteran claims that he incurred a heart disorder during service and that he developed left lower extremity radiculopathy as the result of service-connected lower spine disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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 active service – the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who served 90 days or more of active duty during a war period or after December 31, 1946, certain chronic disorders such as heart and neurological disorders are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309(a)). 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 showing (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The evidence in this matter consists of lay statements from the Veteran, service treatment records (STRs), private and VA treatment records, and VA examination reports. Left lower extremity radiculopathy The Veteran claims entitlement to bilateral lower extremity radiculopathy due to service-connected lumbar spine disability. In November 2019, the RO granted service connection for degenerative disc disease of the lumbar spine and associated right lower extremity radiculopathy/sciatica. The RO continued its denial, however, of service connection for left lower extremity radiculopathy. The RO found that the Veteran does not have this disorder. The Board agrees. In a September 2018 VA examination report, included in the record pursuant to the Board’s April 2018 remand, the examiner found the Veteran’s left leg normal. Indeed, the report indicates that, although the Veteran complained of radicular symptoms in his right leg, he did not complain of such symptoms in his left leg. Moreover, in an August 2019 VA examination report addressing lower spine disability, the examiner found no radicular disorder affecting the left lower extremity. These findings are mirrored in VA treatment records dated throughout the appeal period which are negative for the diagnosis of left lower extremity radiculopathy or sciatica. Each of these medical findings is of probative value because each is provided by a medical professional who demonstrated a familiarity with the Veteran’s case and with the medical issue presented. Further, each opinion is supported by the evidence of record. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). The record contains one medical report which appears to support the claim. In an August 2013 letter, a private physician states that left lower extremity radiculopathy is related to lower spine disability. However, the letter is not supported by medical evidence documenting the existence of radiculopathy or sciatica involving the left leg. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). As such, the letter is of limited probative value. A service connection finding is unwarranted here because the preponderance of the evidence indicates there is no current left lower extremity neurological disorder. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability; in the absence of a current disability, there is no valid claim). In assessing this claim, the Board has considered the Veteran’s lay assertions. He is competent to report observable symptoms such as pain and limitation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he is not competent to determine issues such as diagnosis and etiology. A neurological disorder stemming from spinal disability is an internal pathology beyond his capacity for observation. It is a complex medical issue. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). On the complex question of whether the Veteran has this disorder, his lay statements are of limited probative value. Heart The Veteran claims that he incurred a heart disorder during service. The evidence establishes that he has heart disorders. Private and VA medical evidence, to include a September 2018 VA examination report conducted pursuant to the Board’s remand, documents diagnoses of coronary atherosclerosis, coronary artery disease, old myocardial infarction, and unstable angina. The evidence also indicates that the Veteran complained of chest pain during service. Service treatment records (STRs) dated in January 1977 note the Veteran’s complaints of chest pain. The record indicates, however, that the Veteran did not incur a heart disorder during service or develop such a disorder within the first year of discharge from service. The STRs note the complaints of chest pain in 1977 but are negative for a heart disorder. Testing conducted following the complaints indicated a normal heart. The January 1977 discharge report of medical examination indicates a normal heart. There is no evidence indicating a heart problem in the years following service, moreover. In fact, the earliest evidence of record of a heart disorder is dated in the late 2000s, over 30 years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). In short, the objective record does not document the existence of a chronic heart disorder during service or for many years following service. Rather, the preponderance of the evidence indicates that, for approximately 30 years following service, the Veteran did not have characteristic manifestations sufficient to identify a chronic disease entity. See 38 C.F.R. § 3.303. Moreover, the only medical opinion addressing the claim of medical nexus between chest complaints in service and current heart disorders counters the Veteran’s claim. In a September 2018 VA examination report, the examiner found current problems unrelated to service. In support, the examiner cited the evidence in STRs indicating that the Veteran’s in-service chest pain related to anxiety rather than to heart trouble. The examiner also noted the lack of evidence of heart disorders from the time of medical evaluation at discharge from service until 2007, decades after service. This opinion is of probative value because it is based on an interview of the Veteran, an examination of the Veteran, and a review of the claims file. Moreover, the opinion is based on the evidence of record and is explained. See Bloom, supra. In assessing this claim, the Board has considered the Veteran’s lay assertions. However, he is not competent to determine the etiology of his heart disease, which is an internal pathology beyond his capacity for lay observation. See Woehlaert and Jandreau, both supra. On this complex question, the lay evidence is of no probative value. As the preponderance of the evidence is against the claims of entitlement to service connection, the benefit-of-the-doubt doctrine does not apply, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Restoration The Veteran has been service connected for right knee osteoarthritis with limitation of motion since August 1998. The disorder was rated 20 percent disabling until the RO, in the October 2014 rating decision on appeal, reduced the disability rating to 10 percent, effective August 27, 2013. VA regulations provide that where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). The beneficiary must be notified at his or her latest address of record of the contemplated action. The beneficiary must be given 60 days for the presentation of additional evidence. 38 C.F.R. § 3.105(e). VA’s General Counsel has held that the provisions of 38 C.F.R. § 3.105 (e) do not apply where there is no reduction in the amount of compensation payable. VAOPGCPREC 71-91; VAOPGCPREC 29- 97. The record contains no evidence that the reduction in rating for right knee osteoarthritis with limited motion was proposed in writing to the Veteran. The record contains no evidence that notice regarding the process of how to dispute a proposed reduction was provided to the Veteran. Furthermore, the rating reduction at issue resulted in a reduction in compensation paid to the Veteran. As evidenced by the October 2014 rating decision code sheet, the combined disability rating declined from 40 to 30 percent as the result of the rating reduction effective August 27, 2013. As such, the critical due process requirements under 38 C.F.R. § 3.105 (e) were not satisfied here. The United States Court of Appeals for Veterans Claims has consistently held that when VA reduces a Veteran’s disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). The law provides that where a rating reduction was made without observance of law in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Effective August 27, 2013, therefore, the 20 percent rating for right knee osteoarthritis with limited motion is restored. Increased Rating Right knee osteoarthritis with limited motion has been service connected since August 1998. As discussed above the disorder has been rated 20 percent disabling since then. On February 7, 2011, the Veteran filed a claim for increased rating for the disorder. In a February 2012 rating decision, the RO continued the assigned rating. The Veteran appealed that decision to the Board. As noted above, during the appeal period, in an October 2014 rating decision, the RO decreased the assigned rating to 10 percent. Nevertheless, the 20 percent rating has been restored. In the decision below, the Board will address whether a rating higher than 20 percent has been warranted at any time since February 7, 2010, one year prior to the date of claim for increased rating. See 38 C.F.R. § 3.400. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In rating disabilities, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when symptoms are most prevalent (“flare-ups”) due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination, and the extent of limitation during passive and active range of motion and while weight bearing and not weight bearing. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995), Correia v. McDonald, 28 Vet. App. 158 (2016), Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Knee disabilities are rated under DCs 5256 through 5263 of 38 C.F.R. § 4.71a. Diagnostic Code 5256 addresses ankylosis of the knee. Ankylosis is defined as “stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint[.]” Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Diagnostic Code 5257 addresses recurrent subluxation or lateral instability. Diagnostic Code 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 addresses symptomatic residuals related to removal of semilunar cartilage. Diagnostic Codes 5260 addresses limitation of motion on flexion while DC 5261 addresses limitation of motion on extension. Diagnostic Code 5262 addresses impairment of the tibia and fibula. And Diagnostic Code 5263 addresses genu recurvatum. See 38 C.F.R. § 4.71a. Diagnostic Code 5003 pertains to the rating of arthritis. Traumatic arthritis is addressed on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When there is some limitation of motion, but the limitation is noncompensable under a limitation-of-motion code, a 10 percent rating may be assigned with involvement of a major joint. 38 C.F.R. § 4.71a. Inasmuch as the knee disability here has been rated as 20 percent disabled throughout the appeal period, the Board’s focus is on whether the next-highest rating of 30 percent has been warranted. For the following reasons, a rating higher than 20 percent is not warranted here. Ratings higher than 20 percent are authorized under DC 5256 for ankylosis, DC 5257 for severe recurrent subluxation or lateral instability, under DC 5262 for tibia and fibula impairment, and under DCs 5260-61 for limitation of motion. None of the evidence of record, which consists of private and VA treatment records and VA compensation examination reports, indicates ankylosis or tibia/fibula impairment. The Veteran is separately service connected as 10 percent disabled under DC 5257 and that issue is not on appeal before the Board. And, with regard to limitation of motion, none of the evidence indicates that a 30 percent rating is warranted under either DC 5260 for flexion limited to 15 degrees or under DC 5261 for extension limited to 20 degrees. Rather, the evidence dated since February 2010 indicates pain-free flexion and extension well beyond these limitations. Most recently, the September 2018 VA examination report noted pain-free flexion to 85 degrees and extension to 0 degrees. The report indicated that repetitive use may reduce flexion to 70 degrees. And the report noted that the Veteran experienced functional loss due to flare ups, painful motion on passive and active range of motion and in weight-bearing and nonweight-bearing situations. Nevertheless, the report did not indicate functional loss to such an extent that the criteria for a 30 percent rating was approximated under either DC 5260 OR 5261. As such, the preponderance of the evidence indicates that a rating in excess of 20 percent has been unwarranted for right knee osteoarthritis with limited motion since February 2010. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND A remand of the claim of entitlement to a TDIU is warranted because it is intertwined with issues currently pending before the RO. The RO granted service connection for psychiatric disability in June 2019 and granted service connection for lower spine disability in November 2019, as well as for right lower extremity radiculopathy secondary to spinal disability. Further, effective this decision, the 20 percent rating has been restored for right knee osteoarthritis and limited motion. The TDIU claim should be readjudicated once this rating has been restored, and once the initial ratings assigned for psychiatric and back disorders have become final. (Continued on the next page)   The matters are REMANDED for the following action: Readjudicate the claim for a TDIU in light of the restoration of the 20 percent rating for right knee osteoarthritis, and once the initial ratings assigned for psychiatric and back disorders have become final. Then, if warranted, return the claim to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.