Citation Nr: 20005261 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 10-25 150 DATE: January 22, 2020 ORDER Entitlement to service connection for above right knee amputation, claimed as secondary to service-connected disabilities, is denied. Entitlement to a rating in excess of 10 percent for internal right knee derangement is denied. FINDINGS OF FACT 1. The Veteran right above knee amputation was not caused or aggravated by service-connected right knee and ankle disabilities. 2. Throughout the appeal period, symptoms of the Veteran’s service-connected left knee disability did not more nearly approximate limitation of flexion to 30 degrees or compensable limitation of extension. CONCLUSIONS OF LAW 1. The criteria for service connection for right above knee amputation, claimed as secondary to service-connected right knee and ankle, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). 2. The criteria for a rating in excess of 10 percent for internal right knee derangement have not been met. 8 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1954 to February 1974. This matter came to the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran and his wife testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In March 2018, the Board remanded the matter for further development. The agency of original jurisdiction (AOJ) has substantially complied with the Board’s March 2018 remand instructions by obtaining a medical opinion addressing the Veteran’s contentions raised at his hearing. The AOJ also contacted the Veteran to request authorization to obtain his medical records. Therefore, no further action is necessary in this regard. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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 that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a),(b). 1. Right Above Knee Amputation The Veteran contends that his right above knee amputation resulted from his service-connected right knee and ankle disabilities. See January 2018 Hearing Transcript. For the following reasons, the Board finds that service-connection for right above knee amputation secondary to service-connected right knee and ankle is not warranted. A March 2015 private treatment record shows that the Veteran had a preoperative and postoperative diagnoses of critical limb ischemia, right lower extremity, non-salvageable right lower extremity, and occluded femoral-popliteal bypass. The Veteran had previously undergone a fem pop bypass graft, which occluded contributing to acute limb ischemia. He had a diagnostic angiogram showing minimal reconstitution of the posterior tibial artery distally with no other flow into his calf. His exam was notable for a severe degree of ischemia with an insensate right foot with no motor function at the ankle or the toes. He did have severe rest pain. After an extensive discussion with the Veteran and his family regarding his options, including an additional attempt at revascularization with a redo fem tibial bypass versus amputation at the above-knee level, the Veteran and his family opted for amputation. The Veteran was afforded a VA examination in August 2015. The examiner opined that the Veteran’s right above knee amputation was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the amputation was due to peripheral vascular disease, not the right knee joint degenerative joint disease and internal derangement. The examiner also opined that the Veteran’s right above knee amputation is less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner reiterated that the amputation was due to peripheral vascular disease, not the right knee joint degenerative joint disease and internal derangement. In November 2019, the RO obtained another medical opinion with clarification. The VA examiner opined that it is less likely as not that the Veteran’s right leg above knee amputation was caused by his service-connected right knee and/or right ankle disabilities. The examiner explained that Veteran has a long history of peripheral vascular disease. He had a right femoral distal popliteal bypass in 2007 for ischemic (damage to the muscles for lack of blood flow) right lower extremity with disabling claudication. The Veteran also has a history of Iliac artery stent. In March 2015 he was admitted and had angioplasty for severe right limb ischemia (life threatening lack of blood to the legs and on March 20, 2015 he underwent a right above-the-knee amputation for critical limb ischemia. The examiner noted that peripheral vascular disease (PVD) is a common circulatory problem in which narrowed arteries reduce blood flow to the limbs. When you develop PVD, the extremities - usually the legs - don’t receive enough blood flow to keep up with demand. This causes symptoms, most notably leg pain when walking (claudication). PVD is also likely to be a sign of a more widespread accumulation of fatty deposits in the arteries (atherosclerosis). This condition may be reducing blood flow to the heart and brain, as well as the legs. The VA examiner further explained that PVD the Veteran has is caused by atherosclerosis. In atherosclerosis, fatty deposits (plaques) build up on the artery walls and reduce blood flow. Although discussions of atherosclerosis usually focus on the heart, the disease can and usually does affect arteries throughout the body. When it occurs in the arteries supplying blood to the limbs, it causes peripheral artery disease. Factors that increase the risk of developing PVD include: smoking, diabetes, obesity, high blood pressure, high cholesterol, increasing age, and family history. Joint conditions, including internal knee derangements and degenerative arthritis of the ankle are not known to contribute to the development of peripheral vascular disease. The examiner concluded that for these reasons, it is less likely as not (that the Veteran’s right leg above knee amputation was caused by his service-connected right knee and/or right ankle disabilities. The VA examiner also opined that it is less as likely as not that the Veteran’s right leg above knee amputation has been aggravated by service-connected right knee and/or right ankle disabilities. The examiner explained that the Veteran’s PVD worsened over time requiring additional procedures and ultimately amputation (to avoid decomposition of the muscle without a blood supply causing toxins to build up in the blood which may be fatal). The examiner noted that it is less likely as likely as not that the Veteran’s right leg above knee amputation has been aggravated by service-connected right knee and/or right ankle disabilities, because joint conditions are not associated with development or worsening of PVD and because worsening over time is consistent with natural progression of the illness. As the August 2015 and November 2019 VA examiners explained the reasons for their conclusions based on an accurate characterization of the evidence, their opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Moreover, the November 2019 VA examiner specifically addressed aggravation in his opinion. Cf. El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (a medical opinion that does not specifically address aggravation is generally inadequate to decide a secondary service connection claim). In addition, there is no contrary medical opinion in the evidence of record. To the extent that the Veteran asserts that right above knee amputation is related to service-connected right knee and ankle, he is competent to attest to his observations and the etiology of simple medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). He is not, however, competent to opine on complex medical matters such as the etiology of right knee and ankle disabilities and their potential relationship to right above knee amputations, which are questions that relate to internal medical process that extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n.4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). To the extent that the Veteran’s statements are competent, the specific reasoned opinions of the August 2015 and November 2017 VA examiners are of greater probative weight than the Veteran’s more general lay assertions. For the foregoing reasons, the weight of the evidence reflects that the Veteran’s right above knee amputation is neither caused nor aggravated by his service-connected right knee and ankle disabilities. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. No other theory of entitlement has been raised by the Veteran or the evidence of record. Increased Rating 2. Right Knee Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence ‘used to decide whether an [initial] rating on appeal was erroneous....’Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. When evaluating disabilities of the joints, the Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); see DeLuca v. Brown, 8 Vet. App. 202 (1995). In this case, the RO has evaluated the Veteran’s right knee at 10 percent disabling under the criteria pertaining to arthritis and limitation of motion. Under those criteria, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 60 degrees is noncompensable; flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of extension are assigned as follows: extension limited to 5 degrees is noncompensable; extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent. See 38 C.F.R. § 4.71a. In addition, separate ratings may be assigned for compensable limitation of both flexion and extension. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In June 2015, the Veteran filed a claim for an increased rating of his service-connected right knee disability, currently rated at 10 percent. For the following reasons, the Board finds that the preponderance of evidence is against the assignment of a rating in excess of 10 percent for the Veteran’s service-connected right knee disability. The Veteran’s right knee was amputated in March 2015. At his January 2018 Board hearing, the Veteran testified that he received private treatment for his right knee disability and subsequently amputated right leg from a Dr. J.H. In response to the Board’s remand directives, in February 2018 and August 2019, the AOJ requested that the Veteran provide authorization to obtain medical records from Dr. J.H. The evidence of record indicates that the Veteran has not responded to the AOJ’s requests. The potential evidence from these medical records could have been beneficial to this claim. The Board will decide the claim based on the evidence of record. The Board regrets that, in the unusual circumstances of this case, it cannot be said that the Veteran’s right knee symptoms have more nearly approximated the range of motion requirements for any higher or separate ratings. The Veteran’s right leg was amputated during the appeal period, which began one year prior to the June 2015 increased rating claim. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o). During the period from June 2014 to March 2015, there is no evidence of limitation of flexion or extension to warrant a higher or separate rating. An August 2015 VA amputation examination showing that the Veteran has an above-knee amputation of the right middle or lower third of the thigh. The amputation allows the use of a suitable prosthetic appliance. The Veteran utilized a wheelchair regularly and crutches occasionally. During the January 2018 Board hearing, the Veteran testified that when he initially went to the hospital, prior to the amputation, he got a lot of pain from his right knee. The evidence does not demonstrate that the Veteran experienced right knee flare-ups, pain, weakness, and additional limitation of motion to rise to the level of higher ratings for limitation of flexion or limitation of extension under DCs 5260 or 5261. Symptoms including pain have not been shown to produce additional functional loss or limitation of motion to support the assignment of higher ratings. The Board has considered whether higher ratings could be assigned under an alternative diagnostic code, however, the Board finds that no other diagnostic codes are applicable. Specifically, a rating is not warranted under DC 5256 because no evidence of ankylosis is of record. A rating is not warranted under DC 5257, because there is no lay or medical evidence of right knee subluxation or instability. A rating is not warranted under DC 5258, because there is no evidence the Veteran had a meniscus (semilunar cartilage) condition. A rating is not warranted under DC 5259, because the Veteran had not had a meniscectomy (removal of semilunar cartilage). Finally, a rating is not warranted under DC 5263, because there was no evidence of genu recurvatum. As the preponderance of evidence reflects the symptoms of the Veteran’s right knee disability do not more nearly approximate the criteria for a rating higher than 10 percent, the benefit of the doubt doctrine is not for application and a rating higher than 10 percent for internal right knee derangement is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, Associate 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.