Citation Nr: 21062681 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 17-22 785 DATE: October 8, 2021 ORDER Entitlement to service connection for a low back disability as secondary to service-connected right knee disability is granted. Entitlement to service connection for a left knee disability as secondary to service-connected right knee disability is granted. Entitlement to a rating in excess of 10 percent for saphenous nerve disability of the right leg is denied. REMANDED Entitlement to service connection for a skin condition, to include as due to an undiagnosed illness is remanded. Entitlement to a rating in excess of 30 percent for unspecified depressive disorder is remanded. FINDINGS OF FACT 1. The Veteran's low back disability is proximately due to his service-connected right knee disability. 2. The Veteran's left knee disability is proximately due to his service-connected right knee disability. 3. For the period on appeal, the Veteran's saphenous nerve disability of the right leg is rated as the maximum schedular rating and did not present in such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability as secondary to right knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a left knee disability as secondary to right knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. For the period on appeal, a schedular rating greater than 10 percent is not available for the Veteran's saphenous nerve disability of the right leg. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.124a, Diagnostic Code (Code) 8527. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1988 to July 1992. In June 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection The Veteran claims that his low back and left knee disabilities are related to his service-connected right knee disability, specifically the result of his altered gait which was due to his right knee disability. The claimed disabilities were incurred after service and there is no evidence or argument that they are directly related to service. Service connection on a direct basis will not be discussed. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Low Back The Veteran is already service-connected for a right knee disability. On November 2013 VA examination, a low back strain was diagnosed. The examiner offered a negative opinion as to secondary service connection because the Veteran "does not have an antalgic gait." In an October 2017 report, a private physician, J.D., opined that the Veteran's low back strain was at least as likely as not secondary to his right knee and right leg disability. See November 2017 submission. Dr. J.D. identified said the Veteran's right knee disability resulted in a constant limp, and this limp caused an abnormal rotation through his back which caused pain. While the November 2013 VA examiner provided a negative opinion, the examiner specifically noted that he did not have an antalgic gait. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current low back strain is proximately due to his service-connected right knee disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a low back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Left Knee The Veteran is already service-connected for a right knee disability. On November 2013 VA examination, a left strain was diagnosed, but the examiner did not offer an opinion as to whether the left knee disability was due to the service-connected right knee disability. The negative nexus opinion considered only the right leg nerve disability and concluded the left knee condition was acute. Dr. J.D. conclude that the Veteran's left knee strain was at least as likely as not secondary to his right knee and right leg disability. Dr. J.D. identified that the Veteran's right knee disability resulted in a constant limp, and this limp caused left knee pain. Further the Veteran's VA treatment records reflect that he had an altered gait due to right knee problems and that he reported a history of having years of left knee pain. His left knee condition progressed to a left medial meniscus tear which required surgery in April 2016. That progression is in direct contrast to the November 2013 VA examiner's characterization of the left knee disability as acute. Based on a review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current left knee disability is proximately due to his service-connected right knee disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a left knee disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating The Veteran seeks a higher rating for his service-connected saphenous nerve disability of the right leg. He is currently rated as 10 percent disability from July 18, 1992, under 38 C.F.R. § 4.124a Code 8599-8527. He filed his claim for an increased rating in May 2013. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions, in this case 8599 for saphenous nerve damage. See 38 C.F.R. § 4.27. On November 2013 VA examination, the Veteran reported having a "deadened feeling" from his right knee to his right ankle and a tingling feeling when touched. The examiner noted he had moderate intermittent pain, moderate paresthesias, and mild numbness of his right lower extremity. Muscle strength and sensory testing were normal. There were no trophic changes. Right knee and ankle reflexes were hypoactive. The examiner opined the Veteran had moderate incomplete paralysis of the internal saphenous nerve. Involvement of no other nerve was found. The examiner opined that the Veteran's peripheral nerve condition did not impact his ability to work. On March 2017 VA examination, the examiner noted he had no sensation in distribution of saphenous nerve in his right lower extremity. The examiner noted he had moderate intermittent pain, moderate paresthesias, and moderate numbness of his right lower extremity. Muscle strength and reflex testing were normal. On sensory examination, thigh/knee sensation was absent, and lower leg/ankle sensation was decreased. There were no trophic changes. The examiner opined the Veteran had moderate incomplete paralysis of the internal saphenous nerve. Involvement of no other nerve was found. The 10 percent rating currently assigned under Code 8527 is the maximum schedular disability rating available under this that code. In the June 2021 hearing, the Veteran's attorney requested that the Board consider whether a rating under a separate code would be more appropriate give the extent of his symptoms. The Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Board finds there is no other applicable code for the Veteran's symptoms. 38 C.F.R. § 4.120 specifically provides for neurological conditions the ratings of peripheral nerve injuries and their residuals attention should be given to the site and character of the injury. Throughout the period on appeal only the Veteran's internal saphenous nerve was affected and the Veteran's disability is rated under Code 8527 which specifically addresses involvement of the internal saphenous nerve. The Board has also considered whether the schedular criteria under Code 8527 contemplates the Veteran's symptoms of his connected saphenous nerve disability of the right leg. Specifically the Veteran testified that his whole right shin is "deadened" and he experiences shooting electric pain down his leg. The Board finds such symptoms contemplated by Code 8527 which provides a 10 percent rating for severe to complete paralysis of the internal saphenous nerve. 38 C.F.R. § 4.120 provides that for the rating of peripheral nerves, attention is given to the relative impairment in motor functions, trophic changes, or sensory disturbances. Accordingly, the Veteran's nerve disability is totally contemplated by the rating criteria assigned. According, further consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, the claim for an increased schedular rating in excess of 10 percent for the Veteran's saphenous nerve disability of the right leg must be denied. REASONS FOR REMAND Entitlement to service connection for a skin condition, to include as due to an undiagnosed illness is remanded. The claim must be remanded because the November 2013 VA examination is inadequate. The examiner found that the Veteran did not have a skin condition on examination, however the Veteran testified that he had a history of intermittent skin condition which comes and goes. Accordingly, a new opinion is necessary that addresses all diagnosed skin conditions during the period on appeal. Entitlement to a rating in excess of 30 percent for unspecified depressive disorder is remanded. The claim is remanded to afford the Veteran an examination. At the hearing, he testified that his psychiatric disability has increased in severity since the Veteran was last examined by VA in October 2017. On remand, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for any skin complaints since service and any psychiatric complaints since September 2016. After securing the necessary release, take all appropriate action to obtain these records, including any VA treatment October 2019. 2. After the completion of the above, obtain an addendum opinion from an appropriate VA provider to determine the nature and likely etiology of any skin condition. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. Based on the review of the record (and examination if needed), the examiner should answer the following: 3. Identify all diagnosed skin conditions since May 2012. The examiner should consider the Veteran's lay testimony of having an intermittent skin condition. 4. Is it at least as likely as not that any diagnosed skin conditions is related to an in-service injury, event, or disease, to include as due to chemical exposure during his Persian Gulf Service? Why or why not? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 5. After the completion of (1), schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected unspecified depressive disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his unspecified depressive disorder alone. The examiner must complete the corresponding VA disability benefits questionnaire (DBQ), provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.