Citation Nr: 21003291 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-21 742 DATE: January 21, 2021 ORDER Entitlement to service connection for a left knee disability, diagnosed as degenerative arthritis, osteoarthritis, and patellofemoral syndrome, is granted. REMANDED Entitlement to a rating in excess of 20 percent for a lumbar spine disability from May 10, 2011 to March 19, 2015 for is remanded. Entitlement to a rating in excess of 10 percent for a lumbar spine disability from March 19, 2015 to October 1, 2019 for is remanded. Entitlement to a rating in excess of 20 percent for a lumbar spine disability from October 1, 2019 is remanded. Entitlement to a rating in excess of 20 percent for traumatic dislocation of the right shoulder, multiple, with impingement syndrome is remanded. Entitlement to a compensable rating for painful motion of the right shoulder prior to December 24, 2013 and in excess of 20 percent thereafter is remanded. FINDING OF FACT The most probative evidence reflects that the Veteran’s left knee degenerative arthritis, osteoarthritis, and patellofemoral syndrome, were incurred during active duty. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disability, diagnosed as left knee degenerative arthritis, osteoarthritis, and patellofemoral syndrome, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1988 to February 2000. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In October 2017, the case came before the Board. The Board found that new and material evidence was submitted to reopen the Veteran’s claim for entitlement to service connection for a left knee disorder. The Board also denied entitlement to service connection for PTSD and a bilateral hip disorder. In addition, the Board denied increased ratings for the Veteran’s depression, right hand disability, and nasal disability. Moreover, the Board remanded the issues of entitlement to service connection for a left knee disorder and neurological condition of the lower extremities in order for the Veteran to attend additional examinations. Furthermore, the Board remanded the issues of entitlement to increased evaluations for the lumbosacral spine, right shoulder, left ankle, and bilateral feet disorders in order for the Veteran to attend additional examinations. Lastly, the Board remanded the issue of entitlement to a total disability individual unemployability rating (TDIU) because it was inextricably intertwined with the Veteran’s increased rating claims. In October 2019, the RO issued a rating decision that awarded service connection for bilateral lower extremity radiculopathy. Thus, this issue is no longer before the Board. In August 2020, the Board denied entitlement to a compensable rating prior to March 19, 2015 and a rating in excess of 10 percent thereafter, for a left ankle sprain with degenerative joint disease. The Board also denied entitlement to a compensable evaluation for multiple traumatic fractures of the right foot with mild hallux valgus, hammer toe and DJD of the metatarsophalangeal joint. In addition, the Board denied entitlement to a compensable evaluation for fracture third toe, left foot, with hallux valgus. Moreover, the Board granted entitlement to TDIU. Furthermore, the Board remanded the Veteran’s claim for a left knee disability in order for the Veteran to attend an additional VA examination. Lastly, the Board remanded the Veteran’s right shoulder and lumbar spine claims in order to have a VA examiner address the Veteran’s reported flareups. 1. Entitlement to service connection for a left knee disability The Veteran contends that his left knee disability is related to his military service. In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. In addition, for secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis As to a current diagnosis, the Board notes that the Veteran’s disability has been diagnosed as left knee degenerative arthritis, osteoarthritis, and patellofemoral syndrome, resulting in mild instability. As to the in-service incurrence, the Board notes that the Veteran has reported that he injured his knee while performing weightlifting exercises while on active duty. The Board notes that the Veteran’s service treatment records are silent for any treatment or a diagnosis for a left knee injury. However, the Board concedes that this injury took place because the Veteran’s account is consistent with fitness activities on active duty and the Veteran’s post-service medical records have shown that he reported a 1999 left knee injury in the service. In October 2020, the Veteran attended a VA examination to determine the nature and etiology of his claimed left knee disability. At the examination, the Veteran stated that in 1999 his left gave out when he was squatting with 600 lbs. The Veteran also stated that he believed that is where all his left knee problems began. Following the examination, the examiner stated that it is at least as likely as not that the Veteran’s disability was incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that the Veteran describes squat injury feeling like his knee blew up and dislocated his left kneecap as he put it back in himself. The examiner stated to give the Veteran the benefit of doubt, his current left knee instability associated with degenerative joint disease was accelerated with stated injury in 1999 as orthopedics in 2006 also mentioned that injury. The October 2020 VA opinion is undebatably favorable to the Veteran’s appeal; however, the AOJ subsequently returned the file to the VA clinician who rendered the opinion for an addendum which discounted the Veteran’s lay statements due to a lack of corroborating medical evidence within the Veteran’s service treatment records. While the VA clinician complied with the AOJ’s instructions, resulting in an unfavorable addendum opinion, the Board notes that such was based on instructions contrary to the precedential holdings of the Court of Appeals for Veteran’s Claims and Federal Circuit, which are binding on the AOJ and the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). As such, the Board finds that the unfavorable October 2020 addendum opinion is inadequate and provides little, if any, probative weight regarding this matter. On the other hand, the initial opinion offered by the October 2020 VA examiner, which is fully favorable to the Veteran’s appeal, is based on a review of the full record and accompanied by a full rationale in contemplation of all pertinent medical and lay evidence, which is in compliance with the controlling VA laws. Accordingly, the Board finds this opinion to be highly probative of the matter forming the crux of the Veteran’s appealed issue. In light of above, the Board finds that the most probative evidence reflects that the Veteran’s diagnosed left knee disabilities were incurred during active duty, and thus, service connection for these disabilities, diagnosed as degenerative arthritis, osteoarthritis, and patellofemoral syndrome, is warranted. . 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent from May 10, 2011 to March 19, 2015 for is remanded. 2. Entitlement to a rating in excess of 10 percent from March 19, 2015 to October 1, 2019 for is remanded. 3. Entitlement to a rating in excess of 20 percent from October 1, 2019 for lumbar spine is remanded. In August 2020, the Board remanded the Veteran’s claim for an additional examination in order to address the Veteran’s reports of flareups. In October 2020, the Board notes that the Veteran attended a lumbar spine examination. After an examination of the Veteran, the examiner did not provide any range of motion estimates and only stated that the “Veteran describes flares that he cannot move at all from anywhere 1-3 hours.” Accordingly, the Board finds the examiner’s report inadequate to decide this case because the examiner did not provide a thorough evaluation of the Veteran’s flareups to include range of motion estimates. Thus, the Board finds that a remand is required in order for the Veteran to attend an additional VA examination that adequately addresses the Veteran’s reports of flareups. 4. Entitlement to a rating in excess of 20 percent for traumatic dislocation of the right shoulder, multiple, with impingement syndrome is remanded. 5. Entitlement to a compensable rating for painful motion of the right shoulder prior to December 24, 2013 and in excess of 20 percent thereafter is remanded. In August 2020, the Board remanded the Veteran’s claim for an additional examination in order to address the Veteran’s reports of flareups. In October 2020, the Board notes that the Veteran attended a right shoulder examination. After an examination of the Veteran, the examiner did not provide any range of motion estimates and only stated that the “Veteran does not know how much more ROM is lost with increase pain and weakness.” Accordingly, the Board finds the examiner’s report inadequate to decide this case because the examiner did not provide a thorough evaluation of the Veteran’s flareups to include range of motion estimates. Thus, the Board finds that a remand is required in order for the Veteran to attend an additional VA examination that adequately addresses the Veteran’s reports of flareups. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from October 8, 2020 to the present. 2. Schedule the Veteran for a VA examination to determine the current severity of his right shoulder and lumbar spine disabilities. The claims file should be made available to and reviewed by the examiner prior to the examination. Full range of motion testing must be performed where possible. The joint involved should additionally be tested in both active and passive motion, in weight-bearing and nonweight-bearing. The examiner should request the Veteran to identify the extent of his functional loss during flare-ups and offer range of motion estimates based on that information. For each disability, the examiner should additionally provide an estimate of what those results would have been throughout the course of the appeal. The examiner’s opinion must address all of the Veteran’s contentions regarding his reported flareups. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, 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.