Citation Nr: 21063176 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 15-38 477 DATE: October 13, 2021 ORDER 1. Entitlement to service connection for a left wrist disorder is denied. 2. Entitlement to a rating in excess of 30 percent for a post total knee replacement (TKR) left knee disability is denied. REMANDED 3. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected disability, is remanded. 4. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected disability, is remanded. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A left wrist disability was not manifested during the Veteran's active service; left wrist arthritis was not manifested within a year following his discharge from active service; and his current left wrist disorder is not shown to be etiologically related to his active service or to have been caused or aggravated by his service-connected right wrist disability. 2. The Veteran's post-TKR left knee disability is not shown to be manifested by chronic residuals such as severe painful motion or weakness; ankylosis, extension limited at 30 degrees or more and impairment of the tibia and fibula are not shown. CONCLUSIONS OF LAW 1. Service connection for a left wrist disability is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137; 38 C.F.R. § 3.303, 3.304, 3.309, 3.310. 2. A rating in excess of 30 percent for a post TKR left knee disability is not warranted. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes (Code) 5055, 5256, 5261, 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who had active service from September 1973 to August 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 Department of Veterans Affairs (VA) rating decision. In October 2018 Board these matters were remanded for additional development. Service Connection Service connection is warranted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be competent evidence showing: (1) the existence of a claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include arthritis) may be presumed to be service-connected if manifested as chronic in service or to a compensable degree within a specified period after service (one year for arthritis). 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For chronic disease listed in 38 C.F.R. § 3.309(a) service connection may be established by showing continuity of symptomatology. See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be established for a disability which is proximately due to, or the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection, the record must show (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the already service-connected disability caused or aggravated the disability for which service connection is sought. Wallin v. West, 11 Vet. App. 509 (1998). The Veteran asserts that his left wrist disorder was incurred in service and/or caused by (is secondary to) his service-connected right wrist disability. In March 2008, VA determined that the Veteran's complete service treatment records (STRs) are unavailable. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). A diligent effort to obtain the Veteran's missing STRs was undertaken, but some STRs are unavailable. Consequently, VA has a heightened duty to assist in development of evidence to support his service connection claims. The Veteran's available STRs show his upper extremities were normal on clinical evaluations on his August 1973 service entrance and August 1975 service separation examinations. The available STRs do not show any left wrist injuries, complaints, treatment, or diagnosis during his active service. On February 2008 VA examination, the Veteran related that he injured his right wrist in a crab walk exercise during service and that the wrist was casted. He did not report any left wrist symptoms, and on examination left wrist flexion was normal, without pain. In January 2009, the Veteran's private physician stated "the [Veteran's] left wrist injury is related the right wrist injury from the same incident". In April 2010, a private chiropractor stated that both of the Veteran's wrists "suffer since the service. Crab walks, did him in." In a May 2012 statement, a former fellow servicemember, T.H., reported that the Veteran injured both wrists during active service, and that both wrists were casted. The Veteran has submitted photos from his active service showing his right wrist in a cast, but not his left. A March 2008 rating decision granted service connection for a right wrist disability. Post-service medical records show that the first complaints of left wrist symptoms were not until May 2017 when bilateral wrist arthritis was diagnosed, and the Veteran started receiving injection therapy for his right wrist. On January 2020 VA examination, the examiner found that the Veteran did not have a left wrist disorder. As the VA examination was determined to be inadequate, it will be not be discussed further. In a September 2020 opinion based on review of the record, a VA consulting provider opined that the Veteran's left wrist disorder was less likely than not related to his active service and any disease, injury, or event in-service, to include crab walks. The provider also opined that any left wrist disorder was less likely than not due to or aggravated beyond its natural progression by a service-connected right wrist disability. The provider noted that the claims file contains no evidence supporting the Veteran sustained a left wrist injury during his active service, and that the Veteran's chiropractor did not review the Veteran's STRs, did not report a wrist examination or specify the nature of the Veteran's right wrist, and did not discuss any details of the Veteran's right wrist disability [during the interval] since his separation from active service. It was noted that the claims file contains no evidence that a left wrist disability was caused by the Veteran's service-connected right wrist disability and no evidence supporting a connection between the Veteran's service-connected right wrist disability and his left wrist disability. The provider observed that while a private physician stated that the Veteran's left wrist injury was related to his right wrist injury from the same incident, the physician did not specify the incident and did not include any rationale. As the Veteran's treatment records show a diagnosis of bilateral wrist arthritis, it is not in dispute that he has a left wrist disability. A chronic left wrist disability in service is not shown. The Veteran's STRs are silent regarding such disability, and on service separation examination his upper extremities were normal on clinical evaluation. While some STRs appear to be outstanding (as suggested by the photograph of a cast on the Veteran's right arm during service), and a former fellow serviceman has stated that the left arm was casted along the with the right arm at the same time, that statement is contradicted by the photograph. Notably, postservice records contain no mention of a left arm disability prior to a June 2009 private physician's statement that refers to a "left wrist injury" and includes no further details and no explanation for the statement that such is "related the right wrist injury from the same incident". Consequently, even assuming, strictly for purposes of this appeal based on the supporting and his own statements, that the Veteran indeed sustained a left wrist injury in service, the evidence reflects that any such injury was acute, and did not result in chronic residuals. As there is no evidence that arthritis of the left wrist was manifested in the first year following the Veteran's separation from active duty, and no evidence of continuity of left wrist arthritis symptomatology, service connection for a left wrist disability on the basis that such presented as chronic in service, on a chronic disease presumptive (under 38 U.S.C. §§ 1112, 1137), or based on continuity (under 38 C.F.R. § 3.303(b)) is not warranted. Whether under these circumstance a current wrist disability is related to remote service and disease, injury, or event therein or is secondary to (caused or aggravated by) a disability of the other (already service-connected) wrist is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There are medical opinions (by medical professionals who are assumed competent to provide them) in the record both supporting and against the claim. The probative value of the opinions is assessed based on such factors as the extent to which the provider expresses familiarity with the Veteran's record and medical history, whether the provider includes rationale that cites to supporting clinical and other factual data (or is conclusory), and whether the provider invokes/cites to medical principles. For example, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty [to be considered significantly probative]. Bloom v. West, 12 Vet. App. 185, 187 (1999). After considering and weighing all the evidence, the Board finds the greatest probative value in the September 2020 VA examiner's opinion (against the claim), on both direct and secondary service connection theories of entitlement. The Veteran's private physician's and chiropractor's statements, "that left wrist injury is related the right wrist injury from the same incident" and "wrists suffer since service. Crab walks did him in" are each conclusory. They do not cite to supporting clinical/factual data and appear based only on the Veteran's self-reports and do not include rationale that (with the physician's statement) explains the nature of the relationship or (with the chiropractor's statement) include any basis for the opinion other than the Veteran's self-reports); neither identifies the diagnosis of the left wrist disability they found or found in the record. Notably, neither actually states that the Veteran's service connection right wrist disability caused or aggravated his left wrist disability. Therefore, they cannot be found to have persuasive probative value. The buddy statement reporting that the Veteran injured his left wrist in service and that both wrists were casted at the time (considered with the Veteran's own reports and that some STRs appear to be lost) is accepted as competent evidence the Veteran sustained a left wrist injury in service. However, considering that the Veteran's upper extremities were found to be normal on service separation examination, that the provider is a layperson and not competent to diagnose a chronic wrist disability such as arthritis) and that a left wrist disability is not documented after service until about four decades following the Veteran's discharge from active duty (which of itself is evidence weighing against a finding of service connection for consideration), it only supports the occurrence of an acute injury, that resolved prior to the Veteran's discharge from active duty. The September 2020 VA consulting provider concluded that the Veteran's left wrist disorder was less likely than not due to his active service, and less likely than not caused or aggravated by the Veteran's service-connected right wrist disability. The opinion reflects familiarity with the accurate factual record and addresses the evidence supporting the Veteran's claims; it explains why the private opinions lack probative value, noting that they are conclusory and do not cite to any supporting clinical or factual data. The provider cited to supporting clinical data, indicating that there are none that support a possible nexus of the current left wrist disability to service, and addressed the private chiropractor's opinion that crab-walking in service could (which is speculative and therefore lacks probative value) cause wrist injury as it involves bending of the wrist that may over-extend it), stating that a review of the record did not find evidence supporting that the Veteran had a left wrist injury from such trauma. The provider stressed that there is no clinical evidence supporting that the Veteran's left wrist disability is related to service or was caused or aggravated by his right wrist disability. Because the Veteran is a layperson, his own opinions that his left wrist disability was incurred service or was caused and/or aggravated by his service-connected right wrist disability have no probative value. As indicated above, he has not submitted probative medical opinions supporting his theory of entitlement (or regarding secondary service connection even identifying (or citing to medical test or treatise supporting) the existence of a mechanism by which osteoarthritis of the right wrist might cause or impact on the severity of, arthritis in the left wrist. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim, under both direct and secondary service connection theories of entitlement, and that the appeal in the matter must be denied. Increased rating for a post-TKR left knee disability. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. The criteria for rating knee disabilities are found in 38 C.F.R. § 4.71A. Under Code 5055 for knee replacement, a 100 percent rating is assigned for one year following implantation of prosthesis; thereafter, a 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness, and with intermediate degrees of residual weakness, pain or limitation of motion the disability is rated by analogy under Codes 5256, 5261, or 5262, with 30 percent as the minimum rating that is to be assigned. Under Code 5261 (for limitation of knee extension), a 30 percent rating is assigned for extension limited at 20 degrees; a 40 percent rating is assigned for extension limited at 30 degrees; and a 50 percent rating is assigned for extension limited at 45 degrees. Code 5256 pertains to ratings for ankylosis of a knee and Code 5262 applies to ratings for impairment of the tibia and fibula. The rating criteria pertaining to Code 5262 were revised effective February 7, 2021. However, as Codes 5256 and 5262 are not applicable in this matter, the February 7, 2021 effective revisions do not require further discussion. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. In determining the degree of limitation of motion, the provisions of 38 U.S.C. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The Veteran underwent a left knee TKR in 2006. The instant claim for increase was filed in March 2010. In April 2010, the Veteran's chiropractor reported that he had known the Veteran for at least 30 years and that the Veteran always had a "gimp to his walk." On April 2010 VA examination, the Veteran reported pain, weakness, swelling, stiffness, deformity, lack of endurance, decreased range of motion, and instability, locking or giving away. He reported having flare-ups once per week that lasted for days. He reported pain was worse with walking, heat, and cold, and that he was unable to jog, jump, or bend at the knees. On examination, he had a slow gait. He demonstrated left knee flexion to 96 degrees and normal extension to 0 degrees. The examiner noted that repetitive use testing resulted in additional limitations, but did not report the limitations in degrees. Varus/Valgus testing showed moderate laxity, but there was no anterior/posterior drawer cruciate ligament laxity. Treatment records show that in July 2011 and October 2011, the Veteran had a normal gait. In November 2011, he denied having weakness or balance issues. In May 2015 and February 2017, he had an antalgic gait; strength was normal (5/5). In March 2017, his gait was noted to be slightly antalgic, but he denied having weakness or balance issues. In May 2018, he denied having any weakness. In August 2018, he lower extremity strength was normal (5/5). In September 2018 and October 2018, he denied having any weakness. In November 2018, lower extremity strength was noted to be decreased (4/5). In February 2019, March 2019, and September 2019 he later denied having any weakness. On January 2020 VA examination, the Veteran related that his left knee disability prevented him from running and caused problems walking. He reported having flare-ups that were alleviated by staying busy. On examination, left knee flexion was to 110 degrees and extension was normal, to 0 degrees. On examination the examiner noted pain that did not result in functional loss, and indicated that there was no evidence of pain with weight bearing or non-weight bearing. The examiner opined that pain and lack of endurance significantly limit functional ability with repeated use over a period of time and during flare-ups, and estimated that left knee flexion would be further limited to 90 degrees with repetitive use over time and during flare-ups. The examiner indicated that the Veteran had no additional contributing factors of disability. Left knee strength was normal (5/5). There was no muscle atrophy, ankylosis, recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, any other tibial or fibular impairment, or meniscus condition. Joint stability tests were normal. The examiner observed that the Veteran had undergone a left TKR, but had no residuals. The pertinent evidence (including reports of examinations) is summarized above. The evidence of record does show that the Veteran's post TKR left knee disability warrants a higher than 30 percent disability rating. The medical evidence does not show the Veteran has residual severe painful motion or weakness; the January 2020 VA examination found normal (5/5) muscle strength with no muscle atrophy, and flexion was no worse than to 90 degrees, even with pain and use considered. So a rating in excess of 30 percent under the alternate criteria for consideration of an intermediate rating is not warranted. While the Veteran's chiropractor reported that he always has a "gimp to his walk," an antalgic gait (as noted) is not a factor for consideration in determining entitlement to a rating under Code 5256 (for ankylosis, 5261 for rating based on limitation of extension, or 5262 (for tibia/fibula impairment) criteria. Regarding weakness, but for a single examination in November 2018 (when the reduced (4/5) strength was not to a severe level), the Veteran consistently had normal strength. In an August 2021 written argument, the Veteran's representative asserted that the Veteran had severe painful motion and weakness in his left knee, and pointed the findings on a VA examination in April 2010. However, the findings then do not support such conclusion, and provide no basis for such an inference. The Board has no reason to question that the Veteran's left knee disability results in functional limitations (such as his stated inability to run or jump and otherwise limiting function. However, the limitations shown are contemplated by the criteria for the 30 percent rating that is assigned. The record does not show any left knee symptoms not encompassed by the schedular criteria. The disability picture presented is not shown to be exceptional, nor is it asserted to be, so as to suggest referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321 may be warranted. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 30 percent for the post-TKR left knee disability. Accordingly, the appeal in this matter must be denied. REASONS FOR REMAND The Veteran asserts that his right knee and lumbar spine disorders are secondary to his service-connected left knee disability. In April 2006, the Veteran reported that he injured both knees and his back in an industrial injury. In November 2008, his physician stated that his lumbar spine disorder is related to the deterioration of his knees as he favored his left knee and later his right knee. In April 2010, the Veteran's chiropractor stated that his right knee disorder and lumbar spine disorder are due to his service-connected left knee disability. The chiropractor stated that the Veteran's knees, hips, and lumbar spine are due to improper lifting resulting from his inability to bend his knees. While the Veteran has been afforded multiple VA examinations for his right knee disorder and lumbar spine disorder, the opinions offered are not adequate for rating purposes. The January 2020 VA examiner opined that the Veteran's bilateral knees more likely than not resulted in his compensating for his back, but then opined that the right knee disorder and lumbar spine disorder are less likely proximately due to his service-connected left knee disability (which appears to be facially inconsistent). The examiner did not provide an opinion regarding aggravation. In an August 2020 opinion based on review of the record, a VA consulting provider opined that the Veteran's right knee and lumbar spine disorder were less likely than not aggravated beyond natural progression by his service-connected left knee disability. The examiner did not address the opinions of the Veteran's physician or chiropractor. Furthermore, the Veteran has now established service connection for right and left hip disabilities (also now for consideration regarding the secondary service connection theory of entitlement). An opinion regarding secondary connection encompassing consideration of the hip disabilities is necessary. Accordingly, the examinations and opinions are inadequate for rating purposes and a remand is required in order to obtain new opinions that fully address the Veteran's assertions that is right knee disorder and lumbar spine disorder are secondary to his service-connected disabilities. The issue of entitlement to a TDIU rating is inextricably intertwined with the issues remanded, and consideration of the matter must be deferred pending resolution of the other remanded issues. The matters are REMANDED for the following: 1. With identification of providers and submission of necessary authorizations by the Veteran, obtain any outstanding medical records pertaining to evaluations and treatment he received for his right knee and lumbar spine. 2. Then, arrange for the Veteran's record to be forwarded to an appropriate clinician (in orthopedics) for review and an opinion regarding the nature and likely etiology of his current right knee and lumbar spine disabilities. [If further examination of the Veteran is deemed necessary for opinions sought, such should be arranged.] The consulting clinician should provide opinions that respond to the following: a. Identify by diagnosis each current right knee and lumbar spine disability shown by the record (or found on examination, if one is conducted). b. Identify the likely etiology for each right knee and lumbar spine disability diagnosed. Specifically, is it at least as likely as not that any diagnosed right knee or lumbar spine disability was caused or aggravated (increased in severity) by the Veteran's service-connected disabilities, to include his left knee disability and bilateral hip disabilities? The rationale for these opinions should include consideration/discussion of the findings and opinions of the Veteran's physician, and chiropractor, and the prior VA examiners and opinion-providers, and the notation of the Veteran's reported industrial injury to his knees and back. c. If a diagnosed right knee or lumbar spine disability is determined to not be have been caused or aggravated by a service-connected disability, identify the etiology for the disability that is considered to be more likely, and explain why that is so. All opinions must include rationale that cites to supporting factual data and medical principles. The rationale should address the assertions by the Veteran's representative in written argument. 3. After the development above is completed and the other remanded claims are readjudicated, and following any further development indicated, readjudicate the claim for a TDIU rating. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.