Citation Nr: 20009982 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-15 003 DATE: February 6, 2020 ORDER Whether new and material evidence exists to warrant reopening of entitlement to service connection neck disorder, is granted. Whether new and material evidence exists to warrant reopening of entitlement to right knee condition, to include as secondary to left knee disability, is granted. Whether new and material exists to warrant reopening of entitlement to service connection for migraines, is granted. Whether new and material evidence exists to warrant reopening of entitlement to service connection for right shoulder disorder, is denied. Entitlement to service connection for chest disorder, is denied. Entitlement to service connection for right knee disorder, to include as secondary to left knee disability, is denied. Entitlement to an increased evaluation for left knee disability, is denied. REMANDED Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for migraines, is remanded. Entitlement to total disability due to individual unemployability (TDIU), is remanded. FINDINGS OF FACT 1. Entitlement to service connection for neck, shoulder, migraine and right knee disorders were denied in August 2007 and June 2008 rating decisions; the Veteran did not initiate an appeal or submit new and material evidence within one year of either of the rating actions. 2. Evidence added to record since the August 2007 and June 2008 rating decisions concerning entitlement to neck, migraine, and right knee disorders is not cumulative or redundant of evidence already of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claims. 3. Evidence added to record since the August 2007 rating decision concerning the claim of entitlement to service connection for a right shoulder disorders is cumulative and redundant of materials already associated with the record, does not relate to any unestablished facts, and fails to raise a reasonable possibility of substantiating the claim of service connection for a right shoulder disorder. 4. A current diagnosis of a chest-related disorder is not demonstrated by the evidence of record. 5. The Veteran’s current right knee disability was not manifest during service or for many years thereafter and is not shown to be related to service or to any service-connected disability. 6. Throughout the entire period on appeal, the Veteran has been in receipt of the maximum schedular rating allowable for residuals of a total knee replacement. CONCLUSIONS OF LAW 1. The August 2007 and June 2008 rating decisions that denied service connection for shoulder, migraine, neck and right knee disorders are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103. 2. As evidence received since the August 2007 and June 2008 rating decisions is new and material as concerns the neck, migraine and right knee disorders, the criteria for reopening the Veteran's claims for service connection for neck, migraine and right knee disorders is met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. As evidence received since the August 2007 rating decision is not new and material as concerns the right shoulder disorder, the criteria for reopening the Veteran's claim for service connection for a right shoulder disorder is not met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. The criteria for entitlement to service connection for a chest disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385 5. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. The criteria for a rating in excess of 60 percent for total left knee replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71(a), Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1976 to August 1976, from December 1990 to April 1991, and from August 2004 to October 2004 with additional periods of inactive and active duty for training (INACDUTRA/ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from July, August and December 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran was afforded a hearing before the undersigned Veterans Law Judge and a transcript of the proceeding has been associated with the record. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the issue of unemployability due to his service-connected disabilities was raised in a May 2013 statement wherein the Veteran indicated that he “he had to quit work at Walmart because I was having to lift heavy products.” As such, the issue of entitlement to a TDIU has been raised and is within the jurisdiction of the Board. New and Material The Veteran seeks to reopen his previously denied claims of entitlement to service connection for neck, migraine, shoulder and right knee disorders, which were denied in August 2007 and June 2008 rating decisions. The Veteran did not initiate an appeal from these determinations and new and material evidence was not received within one year of either action, and the Veteran has in no other way challenged their finality, thus the August 2007 and June 2008 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Board must initially determine whether new and material evidence has been submitted regardless of the RO's actions, thus the characterization of the issue on the title page of this decision. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Generally, a claim which has been denied in a final decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104 (b), 7105(c). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108. "New and material evidence" is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In addition, all of the evidence received since the last final disallowance shall be considered in making the determination. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). Whether new and material evidence has been presented sufficient to reopen the claims of entitlement to service connection for migraine, right shoulder, neck and right knee disorders. The Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in August 2007 and June 2008. After reviewing the record, the Board finds that the additional evidence received regarding entitlement to service connection for neck, migraine and right knee disorders is sufficient to warrant reopening of those claims, but the evidence concerning entitlement to service connection for a right shoulder disorder is not new and material within the meaning of 38 C.F.R. § 3.156. Specifically, the August 2007 rating decision denied the migraine service connection claim, the neck disability claim and the right shoulder claim. The migraine claim was denied because the Veteran’s complaints of it were recorded while he was serving on a period of inactive duty training. Since this duty status does not permit an award of service connection this type of impairment, the claim was denied. The right shoulder disability claim was denied since recent examination did not reveal the presence of a chronic right shoulder condition, and the cervical spine disability claim was denied for this reason as well. Medical documentation associated with the claims file since the prior denial reflects a current cervical spine disability and the Veteran testified in March 2019 his physician related his headache complaints to the neck disability. See i.e. August 2014 MRI Cervical Spine (“degenerative changes with disc space narrowing at the C3-C4 level”), March 2019 Board hearing transcript (“doctor told me that the…the pinched nerve in my neck caused me to have migraines.”) As this evidence relates to a diagnosis and nexus with service, it relates to unestablished facts necessary to substantiate the claims. Accordingly, the evidence received in connection with these claims since the 2007 rating decision is new and material, and these claims are reopened. Regarding the right shoulder, treatment records are still lacking any complaints or diagnoses related to a current disability. Thus, the Board finds that reopening the claim of entitlement for a right shoulder condition is not warranted as only new, but not material evidence has been associated with the claims file since the August 2007 rating action. In making this determination, the Board has additionally considered the Veteran’s statements in support of the claim, including his March 2019 Board hearing testimony. While this evidence is indeed new, it is not germane to the lack of a current right shoulder disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (Absent evidence of a current disability, an award of service connection for is not appropriate.) Concerning his right knee condition, the Veteran was originally denied service connection due to the lack of a causal nexus with service, and since the June 2008 decision the record has been supplemented with new VA medical opinions which are material to the third element of service connection, thus reopening of the claim is warranted. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 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 service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). 1. Entitlement to service connection for a chest disorder. The most probative evidence shows that the Veteran does not have a current chest disability. See Brammer at 225. There is no reference to any diagnosis or treatment of a chest disability in the medical evidence of record, apart from his June 1986 right rib contusion during an MVA while on ACDUTRA. The Board considered the Veteran’s lay statements and testimony in support of the claim which provide no more than generalized statements of pain during the last year or two without any specific contention relating the ACDUTRA incident to the current issue. See March 2019 Board hearing transcript (“When did the pain in the chest start? Two years ago? I don't know. Maybe, maybe last year I started having some pain, just some throbbing pains in my chest. I don't know. I, I ain't, I ain't looked into it because I figure it was something that I ate that day, you know. Because I don't know. I just really don't know”). In October 2014 the Veteran was afforded a VA examination which considered his contentions and his medical history, but no current disability was found. In the absence of a current disability, a basis upon which to establish service connection has not been presented and the claim for a chest disorder is denied. 2. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected left knee disability. The Veteran primarily contends that he has a right knee disability due to his already service-connected left knee disability. See March 2019 Board Hearing transcript (“when did you start having problems with the right knee?...I had the surgery in 2010…so I started adjusting that weight to my right side.”) The evidence shows that the Veteran does have current arthritis of the right knee. See i.e. May 2014 VA examination (“right knee with mild/moderate degenerative changes and meniscus tear”). Nevertheless, given the evidence of record, the Board finds that service connection for a right knee disability is not warranted on either a direct or secondary basis. While arthritis is a presumptive disorder pursuant to 38 C.F.R. § 3.309, the record does not show that the right knee disorder began in service. Compare. September 2005 MRI Bilateral Knees (“joint spaces are well-preserved…there is mild juxta-articular hypertrophy changes of the lateral compartment of the left knee.”) with January 2010 Bilateral Knee X-Ray (“degenerative changes in the bilateral knees, greater on the left than the right…milder narrowing on the right”); see also May 2014 VA examination. Rather, the medical evidence does not show, and the Veteran does not contend that the right knee disorder began during service or incident to a period of ACDUTRA or INACDUTRA. Thus, the medical evidence does not show any right knee pathology during service or for many years thereafter or disclose any suggestion that the current right knee disability is related to service. As a layperson without any demonstrated expertise concerning medical etiology, any assertion that current right knee disability is otherwise related to service may not be afforded any probative value. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While there are multiple medical opinions of record, not a single medical conclusion supports an award of service connection on a direct or secondary basis. See i.e. March 2008 VA examination (“there is no evidence in medical literature that a condition in one knee would cause problems in the other knee”); May 2011 VA examination (“review of medical literature reveals no accepted medical studies that support a relationship that favoring one lower extremity will result in injury to the opposite lower extremity. It is not as likely as not that his right knee condition is the direct and proximate result of his service connected left knee condition, nor is it aggravated or permanently worsened…This specific issue was previously addressed in an article in the Journal of Bone and Joint Surgery. This article concluded that there is no hard data to support the belief that favoring one leg adversely affects the other.”); May 2014 VA examination (“review of medical literature reveals no accepted medical studies that support a relationship that favoring one lower extremity will result in injury to the opposite lower extremity…more likely than not that underlying degenerative changes in the opposite extremity would manifest themselves over time, but the relationship is not that of the “injured” lower extremity contributing to the “injury” of the opposite extremity”). Accordingly, there is no basis for awarding service connection for a right knee disability on a direct, presumptive or secondary basis. The remaining evidence in support of the Veteran’s claim are his statements and testimony. As to the issue of whether the Veteran's right knee disability is secondary to his service-connected left knee disability, or related to his military service, the Board finds that the VA examination reports are the most probative evidence of record, especially the May 2014 VA examination as it was based upon a complete review of the Veteran's entire claims file, with due consideration of the Veteran's reported history and lay statements. The May 2014 VA examiner’s conclusions were similar to the prior VA examiners, citing medical literature as failing to stand for the proposition argued by the Veteran. The May 2014 examiner’s opinion is the most probative of record as that person provided a complete and thorough rationale in support of his opinion, thoroughly detailing all pertinent medical evidence based on review and evaluation of the record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding that the Veteran's right knee disability is causally related to his service, was manifested within an applicable presumptive period, or caused or aggravated by his service-connected left knee disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection on a, direct-incurrence basis, to include presumptive direct-incurrence basis, or as proximately due to or chronically aggravated by service-connected disability, is denied. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The 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 and their residual conditions in civilian occupations. 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 Entitlement to a schedular rating in excess of 60 percent for total left knee replacement. A January 2011 rating decision changed the Diagnostic Code for the Veteran's left knee disability to 5055 for prosthetic replacement of knee joint. Pursuant to a June 2018 rating decision, a schedular 60 percent evaluation has been assigned since January 1, 2012, apart from the temporary total evaluations assigned in connection with surgical procedures. A temporary total rating has been assigned for the Veteran's left knee for the period from November 1, 2010 to January 1, 2012, and from May 23, 2012 to June 30, 2013 for total right knee replacement and subsequent revision surgeries. During these periods, the Veteran received the maximum benefits allowed; therefore, they will not be discussed. Under Diagnostic Code 5055, a 100 percent evaluation is warranted for the one year following implantation of the prosthesis; a 60 percent rating is warranted for a total knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity; and a 30 percent rating is the minimum possible rating assignable. Intermediate degrees of residual weakness, pain, or limitation of motion (i.e. a level of disability in between those contemplated by the 30 and 60 percent ratings) are to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Of note, a schedular evaluation greater than 60 percent is prohibited by the "amputation rule," found in 38 C.F.R. § 4.68, which prohibits the assignment of a combined rating for disabilities of an extremity higher than the rating for the amputation at the elective level, were amputation to be performed. Amputation at the elective level would be at thigh level, middle or lower thirds. Amputation at that level warrants only a 60 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5165. As such, the Veteran cannot receive a higher rating for his total left knee replacement than for an amputated leg. Accordingly, a schedular rating in excess of 60 percent for the Veteran's service-connected total left knee replacement is not warranted. Medical treatment records following the Veteran’s November 2010 total knee replacement (TKR) echo his statements and testimony in support of the claim, reflecting continuous complaints of pain, swelling and occasional instability addressed with medication including injections, physical therapy, medical assistive brace and additional surgical intervention. See i.e. November 2010 VAMC Orthopedic Surgery Outpatient note (“18 days status post total knee arthoplasty…moderate swelling…range of motion (ROM) from 6 degrees to 90 degrees…3 time weekly physical therapy…renewal on his hydrocodone”); May 2012 University of Mississippi X-Ray (“there has been a revision of the total knee arthoplasty…long history of painful left total knee arthoplasty over the past two years…loosened femoral component”); January 2013 University of Mississippi Patient note (“patient complains of pain and instability when walking…feels knee is somewhat more stable with the brace but still buckles…occasional pain but continues to improve…he seems to be slowly improving on the revision…ROM is satisfactory”); July 2014 VAMC Primary Care note (“s/p left knee replacement better…left knee edema and stiffness since knee replacement”); February 2015 Dr. Benjamin Stronach note (“previous revision of his left knee [TKR] in 2012 and had an intraoperative fracture that required repair. He has had continued complaints of pain in the left knee…IMAGING: revision left [TKR] in appropriate alignment”.) In January 2016 the Veteran underwent a left knee examination following a fall during the previous evening sustained from his left knee having “gave out.” The examiner observed antalgic gait with some valgus of the left knee and a knee sleeve. Veteran denied flare ups and physical evaluation revealed diminished ROM of 0 to 105 degrees flexion and 105 to 0 degrees extension. Tenderness was noted without crepitus. Repetition revealed pain with decreased ROM. Stability testing was negative on subluxation and lateral instability. Examiner noted a history of recurrent effusion. The examiner identified the Veteran’s 2010 and 2012 surgical interventions, but opined that obesity was a complicating factor. Scar of 11 x .5cm was recorded. Regular use of assistive sleeve. Imaging studies revealed no evidence of hardware failure or loosening. Noted functional impact included knee weakness, pain and instability can affect climbing and lifting/carrying items. Upon review of the record, the Board finds that a 60 percent disability is warranted throughout the appeal period, but the preponderance of the evidence is against awarding a higher rating. The Veteran's total knee replacement of his left knee occurred in 2010. After the temporary total rating, 60 percent is the maximum schedular rating allowed under Diagnostic Code 5055 for knee replacement. 38 C.F.R. § 4.71a. Because Diagnostic Code 5055 in VA's rating schedule pertains specifically to evaluations of total knee replacement disabilities, the Veteran's disability will not be rated by analogy to any of the other diagnostic codes. See Copeland v. McDonald, 27 Vet. App. 333, at 337 (2015). Even if it were possible to rate by analogy, the Veteran's left knee disability would remain at 60 percent. Other than the assignment of a temporary 100 percent evaluation for one year following the implantation of a prosthesis, a 60 percent disability rating is the highest rating that can be assigned pursuant to the eight diagnostic codes applicable to the evaluation of knee and leg disabilities, in addition to the six diagnostic codes for rating disabilities involving prosthetic implants. See 38 C.F.R. § 4.71a, diagnostic codes 5256 to 5263 and 5051 to 5056. Lastly, a separate rating for the scar is not warranted, as the evidence does not show a scar that is at least 6 square inches, unstable, or painful. The Board notes that Diagnostic Code 5055 suggests rating intermediate degrees of symptoms by analogy under 5256, 5261, or 5262. However, as stated above, the Veteran in receipt of the maximum rating for the residuals of his disability and to rate intermediate degrees of symptoms under 5256, 5261, or 5262 would only allow for a 30 percent rating. The Board acknowledges the Veteran's contentions that his left knee disability warrants a higher rating. As previously stated, the Veteran is in receipt of the maximum rating allowed under Diagnostic Code 5055. The Board also recognizes that the Veteran's left knee has caused him pain and impacts his ability to engage in certain physical activities. However, this is contemplated by the currently assigned 60 percent disability rating. Given the foregoing, the Board finds that a disability rating higher than 60 percent for status-post total knee replacement of the left knee with scar, is denied. REASONS FOR REMAND Entitlement to service connection for a neck disorder is remanded. To date, the Veteran has not been afforded a VA examination of his cervical spine. As discussed above, recent medical records reflect current cervical spine disabilities. The Veteran has also testified as to musculoskeletal issues stemming from his documented tailgate injury. In view of this, the Board finds that the low threshold set forth in McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) is satisfied. As such, on remand, the Veteran should be afforded a VA examination to determine the nature and etiology of his cervical condition. Entitlement to service connection for migraines. The Veteran's claim for service connection for migraine headaches is inextricably intertwined with the neck claim remanded herein as the Veteran contends that his migraine headaches have been etiologically elated to his cervical spine disorder. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As such, this claim is also remanded, and the condition examined following an attempt to secure the medical documentation about which the Veteran testified concerning an etiological link between the neck disability and migraine condition. TDIU The Veteran's claim for TDIU benefits is inextricably intertwined with the claims remanded herein, and the outcome of this claim may depend on the outcome of the other remanded claims. See Parker, supra. The matters are REMANDED for the following actions: 1. Associate with the claims file any outstanding relevant VA treatment records since June 2017. Assist the Veteran with the procurement of any potentially relevant private treatment providers not previously associated with the file, to include the medical provider testified about at the March 2019 Board hearing which reportedly provided an etiological link between the Veteran’s migraines and his cervical spine condition. All attempts at assistance with this undertaking should be documented. 2. Send the Veteran VA FORM 21-8940 and request that he complete and return it. Also complete any additional evidentiary development necessary to adjudicate a claim for a TDIU, to include collecting and verifying information concerning the Veteran's complete educational and occupational history. 3. Schedule the Veteran for a VA medical examination concerning his cervical spine. All indicated tests and studies should be accomplished, and clinical findings should be reported in detail. Based on the examination results and a review of the records contained in the claim folder, the examiner is asked to address the following: (a) identify any and all existing current cervical spine disabilities, (b)Is it is at least as likely as not (50 percent or greater probability) that the any currently diagnosed cervical spine disabilities are due to or the result of the Veteran's active duty service and/or periods of INACDUTRA/ACDUTRA, to include the June 1994 complaints of a stiff neck and the documented January 1995 tailgate accident where the Veteran was struck by a heavy tailgate. In making this assessment, the examiner is to consider any pertinent medical data and/or medical literature, which may reasonably illuminate the medical analysis in the study of this case. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should cite the referenced material. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any headache disability. The record should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. All pertinent history and findings must be reported in detail. The examiner(s) should address the following questions: (a) When was the onset of the Veteran’s migraine/ headache disability? (b) Did migraines or any headache disability increase in severity during any period of service, and if so, the specific period of service should be identified. (c) Were migraines caused by a cervical spine disability? (d) Did migraines increase in severity as a result of a cervical spine disability? A complete rationale for all opinions must be provided. 5. Re-adjudicate the claim and issue a supplemental statement of the case (SSOC) if any claim remains denied. M. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli 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.