Citation Nr: 21004019 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-03 464 DATE: January 25, 2021 ORDER Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome with degenerative joint disease is denied. Entitlement to service connection for lumbar spine degenerative arthritis is denied. Entitlement to service connection for a left sciatic nerve condition is denied. FINDINGS OF FACT 1. The Veteran’s right knee patellofemoral syndrome is characterized by painful motion. 2. The Veteran’s lumbar spine degenerative arthritis is not etiologically related to his active duty service. 3. The Veteran’s left sciatic nerve condition is not etiologically related to his active duty service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.46, 4.59, 4.71a, Diagnostic Code 5003-5260 (2019). 2. The criteria for entitlement to service connection for lumbar spine degenerative arthritis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). 3. The criteria for entitlement to service connection for a left sciatic nerve condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1987 to August 1991. He received the Army Service Ribbon; National Defense Service Medal; Overseas Service Ribbon; Southwest Asia Service Medal with three bronze service stars; Kuwait Liberation Medal; Army Commendation Medal; Army Achievement Medal; and, Good Conduct Medal. In October 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. As a preliminary matter, the appeal was previously remanded by the Board in March 2019 for additional development. To assist in the development of his increased rating claim for his right knee condition, VA scheduled the Veteran for an examination in December 2019. See December 2019 VA Examination, pp. 1-2. The Veteran failed to attend, did not provide any cause for his failure to attend, and has not requested that a new examination be scheduled. Moreover, VA provided the Veteran with the appropriate forms needed to obtain non-VA treatment records related to his service connection back claim. See October 2019 Subsequent Development Letter, pp. 1-12. However, the Veteran did not return the completed forms. The United States Court of Appeals for Veterans Claims has found that “[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190 (1991). Because the Veteran failed to attend the December 2019 examination or complete the forms needed to obtain outstanding treatment records, the Board finds that VA has complied with its duty to assist the Veteran in the development of his claims. Consequently, the Board will decide the claims without the benefit of the additional evidence. Increased Rating for Right Knee Patellofemoral Syndrome with Degenerative Joint Disease The Veteran’s right knee patellofemoral syndrome with degenerative joint disease is currently evaluated as 10 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003-5260. The hyphenated code is intended to show that the Veteran’s degenerative arthritis (DC 5003) is evaluated using the criteria for limitation of leg flexion (DC 5260). Under DC 5260, a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and, a 30 percent rating is warranted for flexion limited to 15 degrees. Painful joints are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Turning to the evidence, the Veteran underwent a VA examination in July 2014. See July 2014 VA Examination, pp. 1-9. The Veteran reported pain in the peripatellar area of his knee with occasional heat and redness. He further noted that he had pain with prolonged standing or walking, flare-ups of increased pain occurring once per week, and clicking and popping associated with discomfort. On range of motion testing, the Veteran’s right knee flexion, there was objective evidence of painful motion at 130 degrees, but the Veteran had full extension. The Veteran was able to perform repetitive-use testing with at least three repetitions and no loss of range of motion. There was no evidence or history of recurrent patellar subluxation, dislocation or any meniscal conditions. The examiner indicated that there was tenderness or pain to palpation for the soft tissue of the knee, and the examiner noted the Veteran’s occasional use of a knee brace. In April 2018, the Veteran underwent another VA examination. See April 2018 VA Examination, pp. 1-10. However, the Veteran testified at his October 2018 hearing that the April 2018 examiner did not use any devices (e.g., goniometer) to measure his right knee range of motion and did not ask him about flare-ups of his condition. See October 2018 Hearing Transcript, p. 26. The Board finds the Veteran’s testimony to be credible and the April 2018 examination to be inadequate for rating purposes. See 38 C.F.R. § 4.46. Treatment records show that the Veteran has complained of knee pain, used a knee brace, and was observed as having decreased range of motion See April 2015 CAPRI, p. 11; September 2016 CAPRI, pp. 3, 13, 54, 107, 167; April 2018 CAPRI, pp. 58, 78, 83-84. There was no edema observed. See April 2018 CAPRI, pp. 78, 174. In various statements, the Veteran has stated that he experiences knee buckling, swelling, flare-ups of pain, and interference with prolonged walking, prolonged standing, and navigating stairs. See February 2015 NOD, p. 2; October 2018 Hearing Transcript, pp. 20, 22. At the October 2018 hearing, the Veteran testified that his knee flares to the point where he is unable to bend it very much. See October 2018 Hearing Transcript, p. 26. After careful consideration of the evidence, the Board finds that the evidence preponderates against a finding of entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome with degenerative joint disease. To warrant a higher rating, the evidence must show flexion limited to 30 degrees. The evidence does not show this level of disability but instead shows that the Veteran’s disability was characterized by pain, interference with activities, and flexion limited to 130 degrees. The Board notes that the evidence of record is unclear as to the degree of lost range of motion during flare-ups or following repeated use over time. As previously noted, the Veteran’s claim was previously remanded to obtain this information but the Veteran failed to attend the examination. The level of impairment as demonstrated by the evidence of record is contemplated by the 10 percent rating. Accordingly, a rating in excess of 10 percent for right patellofemoral syndrome is not warranted. The Board has considered whether the Veteran would be entitled to a higher rating under a different diagnostic code for his right knee disability. The Veteran is already in receipt of a separate rating for instability under DC 5257. To receive a higher rating, the evidence must demonstrate a finding of right knee ankylosis; cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint; limitation of extension to 15 degrees or greater; or, impairment of the tibia and fibula with moderate knee or ankle disability. See 38 C.F.R. § 4.71a, DCs 5256, 5258, 5262. The objective medical evidence does not demonstrate any of the aforementioned characteristics in the Veteran’s right knee at any time during the appeal period. Thus, a higher rating is not warranted under a different diagnostic code for right knee patellofemoral syndrome. Service Connection for Lumbar Spine Degenerative Arthritis Direct service connection generally requires credible and competent evidence showing: (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 1363, 1366 (Fed. Cir. 2009). The evidence shows that the Veteran has a current disability. Specifically, the Veteran has been diagnosed with degenerative arthritis of the spine. See July 2014 VA Examination, p. 16. Accordingly, the Board finds that the first element of service connection is established. See Holton, 557 F.3d at 1366. The Board finds that the evidence also supports a finding of an in-service injury or event. The Veteran’s service treatment records contain reports of recurrent back pain. See January 2014 STR, pp. 16, 46, 53, 55. At the October 2018 hearing, the Veteran credibly testified to multiple back injuries during his active duty service. See October 2018 Hearing Transcript, pp. 3-5. The Board finds that there is sufficient evidence to establish the occurrence of an in-service injury. Accordingly, the second element of service connection is established. See Holton, 557 F.3d at 1366. However, there is insufficient evidence to establish the final element of nexus. VA obtained a nexus opinion in July 2014 and the examiner opined that it is less likely than not that the Veteran’s current back disability is related to his active duty service. See July 2014 VA Examination, p. 24. The examiner stated that the Veteran’s in-service complaints of back pain were acute and transient and there was no evidence of a chronic condition. The Board finds the July 2014 opinion to be adequate and probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes the Veteran’s October 2018 testimony in which he stated that he received treatment for his back shortly after his separation from active duty. See October 2018 Hearing Transcript, p. 5. The claim was remanded by the Board for these treatment records, but the Veteran did not return the necessary forms. See October 2019 Subsequent Development Letter, pp. 1-12. Nonetheless, the Board acknowledges the Veteran’s reports of continued and increasing back pain from his active duty service to the present day. See October 2018 Hearing Transcript, pp. 5-6. The Veteran is competent to report observable symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran lacks the medical training and expertise to competently to testify to the medical etiology of his lumbar spine degenerative arthritis. After careful consideration of the evidence of record, the Board finds that there is insufficient evidence to demonstrate a nexus between the Veteran’s service and his lumbar spine degenerative arthritis. See Holton, 557 F.3d at 1366. In the absence of a nexus, the evidence preponderates against the claim and there is no reasonable doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for lumbar spine degenerative arthritis is not warranted. Service Connection for a Left Sciatic Nerve Condition The Veteran claims that his left sciatic nerve condition is secondary to his lumbar spine condition. Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The evidence shows that the Veteran has a current diagnosis of left lower extremity radiculopathy affecting the sciatic nerve. See July 2014 VA Examination, p. 22. Accordingly, the first element of secondary service connection is established. See Wallin, 11 Vet. App. at 512. However, the second element of secondary service connection has not been met. As previously explained, the Veteran’s back condition is not currently service connected. In the absence of a service-connected disability, the evidence preponderates against the claim and there is no reasonable doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for a left sciatic nerve condition is not warranted. The Board is grateful for the Veteran’s honorable service, and this decision is not meant to detract from that service. However, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise for any of the claims. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits”); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Accordingly, the Board is unable to grant any of the claims at this time. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W.V. 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.