Citation Nr: 20004868 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 15-45 520 DATE: January 22, 2020 ORDER Entitlement to a rating in excess of 10 percent for postoperative residuals of a tear of the medial meniscus of the left knee (left knee disability) is denied. REMANDED Entitlement to service connection for a lumbar spine disability, to include as secondary to the service-connected left knee disability, is remanded. Entitlement to service connection for kidney cancer, to include as due to exposure to asbestos, is remanded. FINDING OF FACT The Veteran’s left knee disability is rated as 10-percent disabling, which is the maximum schedular rating permitted for symptomatic removal of semilunar cartilage, and it is not shown he has other left knee symptoms or consequent functional impairment warranting a higher rating under another diagnostic code – including limitation of flexion or extension to a compensable extent, ankylosis, or recurrent subluxation or lateral instability, etc. CONCLUSION OF LAW The criteria are not met for entitlement to a rating in excess of 10 percent for a left knee disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5259. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to July 1968. This appeal is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On his December 2015 and April 2018 VA Form 9s, Substantive Appeal to the Board, the Veteran requested a hearing before the Board. In July 2019, he was notified at his most recent address of record that his hearing before the Board was scheduled for in August 2019. He failed to appear for his hearing, however, and he has not provided good-cause explanation for his absence or requested to have the hearing rescheduled. As such, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). The Veteran also originally had filed an additional claim of entitlement to service connection for a right knee disability, including as secondary to his service-connected left knee disability. But on both his December 2015 and April 2018 VA Form 9s, he stated explicitly that he was only appealing the decisions concerning his left knee disability, low back disability, and kidney cancer, not also the claim for a right knee disability. Thus, the issue of entitlement to service connection for a right knee disability is not currently before the Board and will not be discussed further in this decision.   Entitlement to a rating in excess of 10 percent for the left knee disability, i.e., for postoperative residuals of a tear of the medial meniscus of the left knee The Veteran contends that he is entitled to a higher rating for his left knee disability because the current 10 percent rating does not fully contemplate his pain and functional impairment owing to it. A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (i.e., noncompensable) under the applicable diagnostic code. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id. at 43. The Veteran’s left knee disability is rated under 38 C.F.R. § 4.71a, DC 5259. Under DC 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage (so including meniscal cartilage). As the Veteran already has this rating, which is the maximum schedular rating permissible under this DC, there is no basis to award a higher evaluation under this DC. The Board also has considered the other DCs pertaining to the knee and leg. The Veteran’s left knee disability may be rated under other DCs only if it does not result in twice compensating him for the same symptoms and impairment. See 38 C.F.R. § 4.14 (VA’s anti-pyramiding regulation). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury, so long as the symptoms for one condition are not "duplicative of or overlapping with the symptom[s]" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Compensating a claimant for separate functional impairment for knee instability (Code 5257) and limited knee motion (either in flexion or extension, or both) does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); see also VAOPGCPREC 9-98 (August 14, 1998) (explaining that, if there is a disability rating under Code 5257 (instability), and there is also x-ray evidence of arthritis (Code 5003), a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59). See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (indicating to apply § 4.59 even in cases that do not involve arthritis). Compensating a claimant under Codes 5257 and 5258 (dislocated cartilage with locking pain and effusion) also does not constitute pyramiding. A precedent decision of the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that an objective clinical finding of instability is not required, noting this also may be established by subjective complaint. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). See also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that that ratings under Codes 5257 and 5260 and 5261 do not necessarily preclude ratings under Codes 5258 and 5259, i.e., meniscal codes). As well, when a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same knee, the limitations must be rated separately to adequately compensate him for functional loss associated with injury to his leg and knee. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Here, though, it is not shown the Veteran has these other left knee impairments to justify assigning a separate rating or granting addition compensation under these other DCs. The Veteran most recently underwent a VA examination for his knees in December 2017. At this examination, the examiner found no evidence of ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage with frequent episodes of locking, pain, or effusion of the joint (of note, the Veteran’s left knee semilunar cartilage, i.e. his meniscus, was removed in a May 1968 surgery for which he is currently service connected). Additionally, the examiner did not find any evidence of ratable limitation of flexion or extension, no impairment of the tibia or fibula, and no genu recurvatum. Hence, a rating under any other DC for a knee disability is not warranted. 38 C.F.R. § 4.71a, DCs 5256-5258, 5260-5263. The Veteran has not contended that his left knee disability has worsened since the December 2017 VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); VAOPGCPREC 11-95 (1995). Finally, the December 2017 VA examiner did observe that the Veteran has a scar from his left knee meniscus removal surgery, however, there is just one scar and it is neither painful nor unstable, and it measures 5 centimeters by 0.2 centimeters. Consequently, an additional rating under 38 C.F.R. § 4.118, DCs 7800-7805, for scars is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating higher than 10 percent for his left knee disability. In denying any higher rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability, to include as secondary to the service-connected left knee disability, is remanded. The Veteran contends that his lumbar spine disability, degenerative disc disease, was caused or is aggravated by his service-connected left knee disability. Thus, this claim is premised on the notion of secondary service connection. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran was afforded a VA examination of his lumbar spine in November 2013. This examiner opined that it was less likely than not that the Veteran’s lumbar spine disability was caused by his left knee disability but was, instead, more likely due to his weight and the natural aging process. However, a review of the medical evidence of record shows the Veteran has complained of an increase in his back pain, including that it is present constantly. Additionally, a February 2014 VA treatment record, so a record dated since that VA examination, shows the Veteran was prescribed a cane for his left knee disability, and that he was “educated on safe gait use with cane.” Given the Veteran’s increased complaints of lumbar spine pain, and the fact that his left knee disability now requires the use of a cane, the Board finds that further medical comment is needed to assist in determining whether there is a correlation between his lumbar spine disability and service-connected left knee disability, including in terms of whether the lumbar spine disability is being aggravated (even if not caused) by the service-connected left knee disability. Two opinions are required for secondary-service-connection claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connection condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen, 7 Vet. App. 448; 38 C.F.R. § 3.310(b). 2. Entitlement to service connection for kidney cancer, to include as due to exposure to asbestos, is remanded. The Veteran contends that he has residuals of kidney cancer because of exposure to a range of environmental hazards during his time in service, including potentially asbestos and lead paint. In a November 2012 statement, the Veteran stated that, while stationed on a ship, he was exposed to asbestos because it was used as insulation for pipes and he was required to move and disturb the insulation consistently without breathing protection. He also stated in an April 2018 letter that he had to sleep “on the top bunk directly under asbestos that constantly fell onto [my] face.” A review of the evidence of record shows he was stationed on the claimed ship and served as a Deck Engineer, so working around asbestos that was placed as pipe insulation is consistent with the circumstances of his service. Additionally, in his November 2012 statement, he noted that the asbestos insulation was often cracked, frayed, or crumbling and he was required to handle it for disposal without any protection. He is competent to report these circumstances of his service. In May 2003, the Veteran was diagnosed with kidney cancer. The medical evidence of record shows that, after surgery, he was in remission, including as recently as of the November 2013 VA examination. At the conclusion of that November 2013 VA examination, the examiner opined that it was less likely than not that the Veteran’s kidney cancer was due to asbestos exposure because his risk of exposure to asbestos was low. However, the Board finds that asbestos exposure is consistent with the circumstances of the Veteran’s service and, therefore, additional comment is needed concerning the relationship, if any, between the Veteran’s kidney cancer and his possible exposure to asbestos during his service to whatever extent (low or otherwise). There is no specific statutory or regulatory guidance regarding claims for service connection for asbestos-related diseases. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA's Adjudication Procedure Manual, M21-1, Part IV.ii.2.C.9 (Dec. 13, 2005) and Part IV.ii.1.H.29 (July 20, 2009). An opinion by VA's Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-00. VA must analyze the Veteran's claim of entitlement to service connection for asbestos-related disease under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The guidelines specify that asbestos fibers may produce fibrosis, including interstitial pulmonary fibrosis or asbestosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). M21-1, Part IV.ii.2.C.9 (Dec. 13, 2005). The latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. Id. Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. Finally, in January 2014 the Veteran submitted a written article discussing an etiological link between asbestos exposure and kidney cancer that relied on a VA study at the VA Medical Center (VAMC) in Somerset, New Jersey. Thus, medical comment on this article is needed. These matters are REMANDED for the following action: 1. If relevant and outstanding, obtain the Veteran’s VA treatment records for the period from January 2015 to the present. To this end contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claims for service connection for kidney cancer and a lumbar spine disability, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources.   If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After receiving all additional records, schedule the Veteran for another examination by an appropriate clinician for additional comment (supplemental opinion) concerning the nature and etiology of any current lumbar spine disability. More specifically, the examiner is asked to indicate whether it is at least as likely as not the lumbar spine disability is (1) proximately due to service-connected left knee disability OR (2) aggravated by the service-connected left knee disability. *Comment is needed on both causation and aggravation. 3. Also schedule the Veteran for another examination by an appropriate clinician for further comment (addendum opinion) concerning the nature and etiology of his kidney cancer and consequent residuals. The examiner is especially asked to indicate whether it is at least as likely as not the kidney cancer and residuals are: a) directly related to an in-service disease, injury, event, including potential exposure to asbestos while stationed aboard a ship, or b) presumptively related to service – meaning the cancer initially manifested to a compensable degree within a year of the Veteran’s discharge from service, so by July 1969. *In responding, the examiner is asked to opine on any etiological link between asbestos exposure and the Veteran’s later diagnosis of kidney cancer, rather than the likelihood that the Veteran was exposed to asbestos since exposure to asbestos is consistent with the circumstances of his service. The examiner is further asked in responding to address the article submitted by the Veteran in January 2014 positing a link between exposure to asbestos and later diagnosis of kidney cancer, which reportedly relies on a VA study at the VAMC in Somerset, New Jersey. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.