Citation Nr: 21005016 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 13-28 667 DATE: January 28, 2021 ORDER Service connection for a left foot disability is granted. Service connection for a right knee disability as due to a left knee disability is granted. Service connection for depressive disorder as due to service connected disabilities is granted. Service connection for a cervical spine disorder as due to a left knee disorder is denied. Service connection for bilateral upper extremity nerve impingement as due to a left knee disorder is denied. Service connection for a lumbar spine disorder as due to a left knee disorder is denied. Service connection for a left shoulder disorder as due to a left knee disorder is denied. Service connection for bilateral lower extremity radiculopathy as due to a left knee disorder is denied. REMANDED A rating higher than 10 percent prior to April 6, 2010, higher than 20 percent from April 7, 2010 to January 23, 2011, and higher than 30 percent from January 24, 2011, for a left knee disability, to include the issue of a separate evaluation in excess of 20 percent prior to May 9, 2013, and a compensable rating thereafter for residual meniscectomy, is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, his left foot disability is related to his active duty service and/or his service connected left knee disability. 2. The Veteran’s right knee meniscal tear was caused by his service-connected left knee disability. 3. The Veteran’s depressive disorder was, in-part, a result of his service connected disabilities. 4. The preponderance of the evidence does not establish that the Veteran’s cervical spine disorder, bilateral upper extremity impingement, lumbar spine disorder, or left shoulder disorder were related to any service connected disability. 5. The preponderance of the evidence is against a finding that the Veteran has a diagnosis of bilateral lower extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot/toe disability, a right knee disability, and depressive disorder have been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09, 3.310. 2. The criteria for service connection for a cervical spine disorder, bilateral upper extremity impingement, lumbar spine disorder, left shoulder disorder, and bilateral lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to September 1973. The Board has previously remanded these matters on multiple occasions, most recently in December 2019. The Board notes that an October 2020 rating decision granted service connection for a right shoulder disorder. As that constitutes a full grant of the claim, the issue is no longer on appeal. Service Connection Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Left Foot The Veteran claims that he injured his left foot when he was in-service and then injured it again after a fall in 2006 due to his service connected knee disability. A review of the record shows that the Veteran’s service treatment records (STRs) do not have note of or treatment for a left foot/toe injury while in-service. However, an August 2011 VA examination found the Veteran’s left foot injury more likely than not related to his left knee disorder, after his left knee caused him to fall and sustain injury. Additionally, a January 2020 VA examination found the Veteran’s report of his left foot/toe injury in-service credible and that his current arthritis was a residual of that injury. As such, and resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted. The Veteran has provided credible testimony regarding the injuries to his left foot/toe and the Board notes that there are no records in evidence which discredit the Veteran’s relation of the history of his injury. Furthermore, there are two VA examination opinions which related the Veteran’s left foot/toe injuries to his in-service injury and his service connected left knee disability. As such, service connection for the Veteran’s left foot/toe disability is granted. Right Knee Meniscus As to the Veteran’s right knee, the January 2020 VA examiner stated that the Veteran’s right knee meniscus tear was at least as likely as not due to the fall caused by the Veteran’s left knee disability. The examiner noted there was no evidence of a meniscal tear prior to the fall in 2006 but that after the fall, the tear was diagnosed. Secondary service connection requires a finding that that the current disability was either caused by or aggravated by a service-connected disability. In the current matter, such a connection is supported by the evidence of record. The Veteran is service connected for his left knee disability and his right knee meniscal tear was found to have been caused by the left knee giving way and causing him to fall. As such, the Board affords the Veteran the benefit of reasonable doubt and finds that service connection for his right knee meniscal tear is warranted. Depressive Disorder An August 2011 VA examination diagnosed the Veteran with depressive disorder, not otherwise specified. The examiner opined that the Veteran’s depression was caused, in part, by his right knee, right shoulder, and his neck. Specifically, the examiner stated that the limitations imposed upon the Veteran by his right knee, right shoulder, and neck resulted in his depressive symptoms. As the Veteran is now service connected for both his right shoulder and right knee, the Board finds that service connection for his depressive disorder as a result, in part, of these conditions is also warranted. Cervical Spine Lumbar Spine Bilateral Upper Extremity Nerve Impingement Left Shoulder The Veteran has been diagnosed with degenerative arthritis of the cervical and lumbar spine, bilateral upper extremity impingement, and left shoulder arthritis. The Veteran claims that these disorders were caused by the fall in 2006 due to his left knee giving way. See June 2011 Statement in Support of Claim. However, there is no evidence of record which supports a link between the Veteran’s left knee disability or his fall in 2006. The Veteran underwent VA examinations in January 2020. The January 2020 examiner found that the disorders of the Veteran’s neck, back, upper extremities, and left shoulder were not caused or aggravated by the Veteran’s left knee disability, to include the 2006 fall caused by the Veteran’s left knee giving way. The Veteran’s cervical, upper extremity, and left shoulder disorders were not found to be related to or aggravated by his left knee as there was no physiological connection between the Veteran’s left knee and his cervical spine, upper extremities, or left shoulder. Additionally, the January 2020 examiner noted that the Veteran’s cervical spine disorder was diagnosed prior to his 2006 fall and diagnostic tests showed no worsening of the condition after his 2006 fall. Thus, his cervical spine condition was not caused or aggravated by his service connected left knee or the 2006 fall when his knee gave out. The examiner also noted a 2001 injury to the Veteran’s left shoulder which caused impingement and was the more likely cause of his left shoulder arthritis, which was diagnosed in 2004, prior to his 2006 fall. Though the examiner noted that a knee injury could result in an altered gait, there was no evidence in the Veteran’s file that supported that the Veteran’s lumbar spine disability was linked to or aggravated by his left knee disability, including his 2006 fall. As such, the examiner opined that the Veteran’s cervical, lumbar, upper extremity, and left shoulder disorders were less likely than not related to the Veteran’s active duty service or any service connected disability, to include his 2006 fall. Thus, after review of the record, the Board finds that the preponderance of the evidence does not support a finding that the Veteran’s cervical spine, lumbar spine, upper extremity, or left shoulder conditions were related to his service connected left knee disability, to include his 2006 fall. Simply put, there is no objective evidence which would support such a conclusion. The Board has considered the Veteran’s statements. However, the Veteran, while credible in his relation of his pain and symptoms, has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule is not for application, and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Lower Extremity Radiculopathy As to the Veteran’s claim regarding his bilateral lower extremity radiculopathy, neither the August 2011 VA examination nor the January 2020 VA examination found that the Veteran had any lower extremity radiculopathy. The January 2020 examiner stated that the Veteran denied symptoms of lower extremity radiculopathy and that his examination findings were with normal limits. As such, the Board concludes that the Veteran does not have a current diagnosis of bilateral lower extremity radiculopathy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is no evidence of record which showed that the Veteran has a diagnosed lower extremity radiculopathy disorder. The Board acknowledges the Veteran’s statements, specifically his June 2011 statement wherein he recounted shooting pain down his legs; however, while the Veteran is competent to report his pain and believes he has bilateral lower extremity radiculopathy, as stated above, he has not been shown to be able to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377, n.4 (Fed. Cir. 2007). The Board gives more probative weight to the competent medical evidence which includes medical records and VA examination report which show no diagnosis of bilateral lower extremity radiculopathy. Therefore, the preponderance of the evidence is against the granting of service connection for bilateral lower extremity radiculopathy. REASONS FOR REMAND Left Knee Regarding the claim of higher ratings for the Veteran’s left knee, in its December 20, 2019, Remand, the Board instructed the AOJ to obtain a VA examination regarding the severity of the Veteran’s left knee disability. The examination took place in January 2020. However, no Supplemental Statement of the Case (SSOC) and/or Rating Decision following the Veteran’s left knee examination has been issued. A remand is required for the AOJ to issue either a Rating Decision and/or an SSOC on the issues of higher ratings for the Veteran’s left knee disabilities. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).   TDIU This claim is inextricably intertwined with the grants of service contained in this decision as well as the increased rating claim being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Send the Veteran a supplemental statement of the case that addresses the issue of the ratings assigned to the Veteran’s left knee, taking into consideration the January 2020 VA examination findings and any separate ratings which may be applicable. 2. Thereafter, after the above directive has been completed and appropriate action has been taken on the remanded claim, and once the RO has assigned a disability rating and effective date for the grants of service connection for a left foot disability, a right knee disability, and major depressive disorder, and completing any other development necessary, readjudicate the claim of entitlement to a TDIU considering all pertinent evidence and legal authority. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.