Citation Nr: 21001312 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-22 365 DATE: January 7, 2021 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to an initial rating in excess of 10 percent for a service-connected back disability is denied. FINDINGS OF FACT 1. The most probative evidence is against a finding Veteran that the Veteran suffers from a left knee disability that is etiologically related to service. 2. The Veteran’s service-connected back disability has not been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or incapacitating episodes of intervertebral disc syndrome. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for a rating in excess of 10 percent for the Veteran’s back condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1990 to May 1997, and in the United States Air Force from May 1997 to August 2014. This matter was previously before the Board in April, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in a September 2020 supplemental statement of the case. In its April 2020 Remand, the Board instructed the RO to associate with the file missing March 2015 VA back and knee examinations. The requested records have been associated with the file. Accordingly, the Board finds that the RO has substantially complied with the April 2020 Remand directives. Entitlement to service connection for a left knee disability The Veteran asserts that he suffers from a left knee condition that is etiologically related to his active duty service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein.  38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).  To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “nexus” between the present disability and the disease or injury incurred or aggravated during service. Horn v.  Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004).  In many cases, medical evidence is required to meet the requirement that the evidence be “competent.”  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. §§ 3.307(a).  When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303 (b).  To be “shown in service,” the disease identity must be established, and the diagnosis must not be subject to legitimate question.  Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C. §§ 1110 and 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran’s service treatment records show that in 2007-2008, the Veteran complained of left knee pain, to include a diagnosis of osteoarthritis. Imaging of the left knee showed cortical thickening of the proximal to mid tibia shaft, with indications it represented a stress change from an old stress fracture. Service treatment records after 2008 do not reference ongoing complaints involving the left knee. The Veteran was afforded a VA knee examination in March 2015, approximately seven months following his separation from service. On examination, the examiner found a normal left knee and accordingly did not diagnose the Veteran with any condition. The Veteran exhibited full range of motion and did not exhibit any weakness in the left knee. The examiner acknowledged reports of in-service knee pain in 2008, but noted that it appears the problem had resolved prior to separation. There is no indication that the Veteran is currently diagnosed with a left knee condition. Post-service private treatment records from an acupuncture and herbal medicine provider in August 2016 noted a gradual onset of left knee pain, with slight tenderness but full range of motion and assessed the Veteran with left knee pain. The Veteran reported being active and running quite often, with the provider noting that the pain may be due to the Veteran overexerting his knee. Based on a detailed review of the record after service, there is no evidence of record to support a finding that the Veteran has a current left knee condition that was incurred in service, or is due to any aspect of the Veteran’s service. The best evidence in this case supports the finding that, notwithstanding the notations of pain, there is simply no knee disability at this time. Overexerting the knee causing pain is not a “disability” for VA purposes, it is an indication simply that the Veteran is overusing his knee while running. Therefore, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection a left knee condition. The benefit-of-the-doubt rule does not apply, and the claim must be denied. Entitlement to an initial rating in excess of 10 percent for a service-connected back condition The Veteran contends that he is entitled to an initial rating in excess of 10 percent for his service-connected back disability. This initial 10 percent rating was the minimum compensable rating allowed to compensate the Veteran for functional loss due to painful motion of his thoracolumbar spine. See 38 C.F.R. § 4.59. The Veteran’s service-connected back disability is evaluated under DC 5242 (degenerative arthritis of the spine), which assigns ratings based upon the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a. Pursuant to DC 5242, a minimum 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the lumbar spine is to 30 degrees or less; or if there is favorable ankylosis of the entire lumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire lumbar spine. A maximum 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, DC 5242. The Veteran was afforded a VA spine examination in March 2015. He was diagnosed with degenerative disc disease (DDD) of the thoracolumbar spine. The examiner noted the Veteran’s initial forward flexion was to 90 degrees or greater with no objective evidence of painful motion. After repetitive use testing, no additional loss of range of motion was found. The examiner reported the Veteran did not have functional loss of his back. The examiner also noted the Veteran had no localized tenderness in his back and did not have IVDS. The examiner did not find any ankylosis. The Veteran underwent another VA examination in March 2017. At the time, the Veteran denied flare-ups. Forward flexion was to 90 degrees with no evidence of pain on the examination. Muscle strength was 5/5 throughout the lower extremities, sensory examination was normal. The examiner also noted the Veteran had no localized tenderness in his back and did not have IVDS or ankylosis. Based on a review of the relevant evidence, the Board finds that an initial rating in excess of 10 percent is not warranted at any time during the appeal period. Specifically, the evidence throughout the appeal period demonstrates that the Veteran’s service-connected thoracolumbar spine disability has been manifested, at its worst, by forward flexion of the thoracolumbar spine to 90 degrees and a combined range of motion of 235 degrees. The objective evidence of record shows that the Veteran’s thoracolumbar spine disability has not been manifested by forward flexion greater than 30 degrees but not greater than 60 degrees; a combined range of motion of 120 degrees or less; or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. See DC 5242, criteria for a 20 percent rating. Additionally, an alternative rating under the IVDS Formula is not warranted as the Veteran has not exhibited IVDS or any incapacitating episodes during the relevant period. Therefore, a rating under the General Rating Formula is more favorable. 38 C.F.R. § 4.71a, DC 5243. The Board has also reviewed the Veteran’s VA treatment records. Unfortunately, these records do not provide any basis for granting a higher initial rating during any portion of the appeal period. There accordingly exists no basis for a thoracolumbar spine disability rating in excess of the previously assigned 10 percent rating. 38 C.F.R. § 4.71, DCs 5237, 5243. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.