Citation Nr: 21069621 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 13-34 679 DATE: November 19, 2021 ORDER Service connection for a low back disorder, to include lower extremity symptoms, is denied. An increased rating for the service-connected osteoarthritis of the left knee, currently rated 10 percent, is denied. FINDINGS OF FACT 1. A low back disorder pre-existed entry into active service, and there was no increase in the pre-existing low back disability during active service. 2. The osteoarthritis of the Veteran's left knee has been manifested by flexion to 80 degrees at worst and extension to 5 degrees at worst. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder, to include lower extremity symptoms, have not been met. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. 2. The criteria for an increased rating for the service-connected osteoarthritis of the left knee, currently rated 10 percent, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.27, 4.71a, Diagnostic Codes 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army Reserve. He had active duty training from December 1973 to April 1974 and continued to serve in the Reserve through approximately 1997. In December 2015, the Board remanded these claims for additional development. In November 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In February 2021, the Board remanded the appeal for further development. At that time, the Board noted that the issue of the propriety of the reduction in evaluation of the left knee disability was not before the Board. The record reflects substantial compliance with the remand requests. Dyment v. West, 13 Vet. App. 141 (1999). Service ConnectionLow Back Disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The Veteran asserts that his current low back disorder is due to an in-service motor vehicle accident in January 1986. Service treatment records contain a November 1981 letter from a private physician who notes that the Veteran recently underwent a lumbar laminectomy for a low back injury. The record does not show, and the Veteran does not assert, that this injury was incurred during a period of qualifying service. Thus, the Board finds that a low back disorder pre-existed his entry into active service. Treatment records during Reserve service show that the Veteran was in a motor vehicle accident on January 17, 1986 during active duty for training. Emergency department records from a private hospital show that the Veteran was in a motor vehicle accident and sustained from facial lacerations, chest pain, and left leg pain. He complained of pain from the neck down and in the left knee. Examination revealed multiple facial abrasions, mild tenderness of the thoracic spine and mild swelling of the left knee. X-rays of the cervical spine and thoracic spine showed no fracture. He was discharged with a knee immobilizer. Treatment records show complaints of pain in the mid back two days later. There are no further records of treatment stemming from the accident. A May 1986 disposition form following the accident only notes a disability of the left knee. [Service connection for a left knee disability has been granted, and the evaluation of the disability is before the Board.] The Veteran denied having a history of any recurrent back pain at January 1988, August 1989 and August 1997 examinations, and clinical evaluation of the spine was normal at each examination. Post service, the first evidence of back problems is contained in a July 1997 private treatment record showing the Veteran's complaints of upper back pain and a diagnosis of a thoracic strain. He reported that those symptoms resolved later that month. Then, he reported low back pain after a motor vehicle accident in September 1999 and was diagnosed with a coccyx contusion. Sometime later, in February 2002, he reported low back pain after loading and unloading items on and off a truck at work. In March 2003, he reported low back pain after moving barrels at work. In April 2003, he reported low back pain from driving a truck and was diagnosed with chronic low back pain. By March 2005, he reported leg weakness along with low back pain and was diagnosed with chronic low back pain, rule out disc disease. Given the above, while the Veteran was in a car accident during active service, there is no indication that his pre-existing low back disorder increased in severity during active service. He did not complain of any low back problems after the accident. Rather, the objective evidence shows that symptoms of a chronic low back disorder began in 2002 due to the stresses of post-service employment, and perhaps initiated by a 1999 car accident. Moreover, in an August 2021 medical opinion, a VA examiner concluded that the pre-existing low back disorder was not aggravated by any in-service event or injury. The examiner explained that the Veteran did not report any low back pain following the motor vehicle accident and only facial lacerations, chest pain and left leg pain were noted with no follow-up care required. The examiner also noted that the Veteran reported at the current examination that following his lumbar laminectomy he did not have back pain until around 2005, which is 19 years following the accident. The examiner indicated that there is no evidence of chronicity of complaints or treatment of low back pain since the 1981 car accident. The examiner noted that degenerative disc disease happens to almost everyone after age 40 and certain people have a higher chance of developing disc degeneration, including those who are overweight or experience trauma to the spine, professional drivers like truck drivers, gymnasts, and smokers. The examiner observed that the Veteran is a smoker and was a truck driver. That is the only competent medical opinion evidence of record and, unfortunately, it is against the claim. Given the above, the Board finds that the pre-existing low back disorder did not increase in severity beyond the natural progress of the disease during the Veteran's active service. To the extent the Veteran asserts that he developed a low back disorder separate and distinct from the pre-existing low back disability, the Board observes that there is no evidence of low back problems after service until, at the earliest, 1999 when he was involved in another motor vehicle accident. Then, the evidence indicates that he developed a chronic low back disorder from the rigors of his post-service employment. The above examiner also opined that the Veteran's low back disorder was not incurred in, or caused by, any in-service event or injury. The examiner reiterated that the Veteran did not report any low back pain after the accident and noted that low back symptoms restarted in 2005. Thus, the Board further finds that the preponderance of the evidence is against finding that a low back disorder began during active duty or is otherwise related to an in-service injury or event. Lastly, the Board notes that the Veteran reported mid back pain two days following the motor vehicle accident. However, there are no further complaints, and there is no evidence of continuity of such symptoms either during or after discharge from service. Here, the Board notes that the examiner essentially distinguished these complaints of mid back pain from those of low back pain. In any event, there is no evidence of a continuity of symptoms in either the mid or low back since service. While there is a complaint of upper back pain in July 1997, the Veteran did not indicate that such pain began during service or was related to any injury in service. Moreover, the upper back pain resolved later that month, and there is no evidence linking any current upper back problems to service. Thus, the Board finds that any injury to the mid back from the accident was acute and resolved prior to separation and did not result in a chronic disability of the mid back. A lay person is competent to give evidence about observable symptoms such as low back pain. Layno v. Brown, 6 Vet. App. 465 (1994). A lay person is competent to address the etiology of a disability in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the questions of aggravation and causation extend beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the question of aggravation or causation. Accordingly, the Board concludes that service connection for a low back disorder is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased RatingOsteoarthritis of the Left Knee The Veteran's osteoarthritis of the left knee has been rated 10 percent under Diagnostic Code 5299-5261. 38 C.F.R. § 4.71a. Thus, his disability has been rated by analogy under Diagnostic Code 5261 for limitation of leg extension. 38 C.F.R. §§ 4.20, 4.27. Under Diagnostic Code 5261, extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a maximum 50 percent rating. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, flexion limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a maximum 30 percent rating. 38 C.F.R. § 4.71a. Normal knee joint motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee. Where a veteran has both compensable limitation of flexion and compensable limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04. Effective February 7, 2021, VA amended the regulations pertaining to the evaluation of disabilities of the musculoskeletal system, including those of the knee. 85 Fed. Reg. 76460 (Nov. 30, 2020). However, Diagnostic Codes 5260 and 5261 remain unchanged. While changes were made to Diagnostic Code 5257 for other impairment of the knee and Diagnostic Code 5262 for impairment of the tibia and fibula, as will be seen below, there is no evidence that the Veteran in this appeal has recurrent subluxation or instability, or patellar instability, or malunion or nonunion of the tibia and fibula. Thus, neither the former nor revised versions of these codes are applicable in this case. At a September 2011 VA examination, the Veteran reported chronic left knee pain that has resulted in several falls in the last few years and flare-ups with prolonged walking and standing. He reported using a cane and a knee brace. He reported that he retired in 2005, last working as a truck driver. Range of motion testing revealed flexion to 80 degrees and extension to 5 degrees. Repetitive use testing revealed no change in range of motion. The examiner noted that the Veteran was guarded during range of motion testing. There was no joint instability in the knee. The examiner noted the Veteran's report that he can only walk about 15 minutes before his left knee starts to bother him. At a May 2021 VA examination, the Veteran reported chronic left knee pain but no flare-ups. He reported taking pain medication and using a knee brace, both daily, and applying ice weekly. Range of motion testing revealed flexion to 110 degrees and extension to 0 degrees. Repetitive use testing revealed no change in range of motion. The examiner noted that pain would significantly limit functional ability with repeated use over time and estimated that flexion would further decrease to 100 degrees but extension would remain unchanged. The Veteran denied recurrent subluxation or lateral instability, and examination showed no joint instability. The examiner noted that the Veteran had a contusion of the left medial meniscus and reported constant, throbbing pain as well as swelling 2 to 3 times per month. The Veteran reported occasional use of a cane, which the examiner noted was on the right side, indicating that it was more for the low back disability. According to the examiner, the osteoarthritis of the Veteran's left knee results in increased pain with prolonged walking or running, which interferes with his ability to work in waste collection. VA treatment records show complaints of, and treatment for, the Veteran's osteoarthritis of the left knee. May 2011 and September 2011 records show that range of motion testing revealed flexion to 95 degrees and extension to 0 degrees. A September 2013 record revealed flexion to 110 degrees and extension to 0 degrees. Given the above, even considering functional loss due to pain and other factors, the Veteran's left knee disability has been manifested by flexion to at worst 80 degrees and extension to at worst 5 degrees, even after repetitive use testing. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Those findings are from the September 2011 examination. The Board observes that that examiner noted that the Veteran was guarded during range of motion testing and, as such, the findings may not truly reflect his level of disability. Moreover, all examination findings since that examination have shown better range of motion. In any event, those findings do not even warrant a 0 percent rating under Diagnostic Code 5260 and support only a 0 percent rating under Diagnostic Code 5261. While the Veteran is competent to report on his pain and resultant limitation of motion, the objective evidence fails to show that he has the necessary limitation of range of motion to warrant a rating greater than 10 percent under Diagnostic Code 5260 or 5261. Layno, 6 Vet. App. 465. The Board notes that the Veteran's left knee disability is currently rated 10 percent for limitation of extension under Diagnostic Code 5261. While he previously had a compensable level of limitation of extension, the evidence of record during this appeal does not show that he currently meets the rating criteria for a 10 percent rating under that code. Moreover, without a compensable level of limitation of flexion, a separate rating under Diagnostic Code 5260 is also not warranted. VAOPGCPREC 9-04. In a September 2021 statement, the Veteran's representative relayed the Veteran's assertion that his left knee disability does in fact present with flare-ups that were not discussed or addressed and results in more severity than as represented by the 10 percent rating. The Board notes that the May 2021 examination report reflects that the Veteran denied flare-ups. However, the Board already has considered his report of flare-ups at the earlier September 2011 examination. Also, while there was no change in range of motion on repetitive use testing at the recent May 2021 examination, the examiner noted that pain would significantly limit functional ability with repeated use over time and favorably estimated that flexion would further decrease to 100 degrees during those times. Moreover, the Board has applied the even more favorable findings of the September 2011 examination which revealed flexion to 80 degrees. The Board notes that Diagnostic Code 5258 provides for a 20 percent rating for dislocated, semilunar cartilage with frequent episodes of "locking," pain and effusion into the joint. While the Veteran may have frequent episodes of pain and effusion, there is no evidence that he has a dislocated meniscus. X-rays taken at the September 2011 examination showed narrowing of the medial joint line with underlying subchondral sclerosis of the medial tibial plateau, mild narrowing of the lateral joint space and well-preserved patellofemoral joint space. There was no mention of a dislocated meniscus and the other medical evidence of record also does not show a dislocated meniscus. Thus, a separate 20 percent rating under this code is not warranted. The Board also notes that Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of semilunar cartilage. While the Veteran's meniscus may be symptomatic, an April 1986 operative report showed that left knee surgery to rule out a tear of the medial meniscus only found a contusion of the medial meniscus, and surgical treatment consisted only of minimal patella shaving and debridement of the medial meniscus. Thus, the Veteran has not undergone removal of semilunar cartilage. Moreover, while separate compensable ratings may be assigned under Diagnostic Code 5259 and Diagnostic Code 5260 or 5261, there must be a compensable level of disability under each code. VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63604 (1997); VAOPGCREC 9-98 (1998), 63 Fed. Reg. 56704 (1998). Here, there is no separate and distinct functional impairment of the left knee attributable to the medial meniscus that is clearly indicated by the record. The same symptoms of pain and limitation of motion may not be used to support a rating under Diagnostic Code 5259 as to do so would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Thus, a separate compensable rating under Diagnostic Code 5259 is not warranted. Accordingly, the Board concludes that an increased rating for the service-connected osteoarthritis of the left knee, currently rated 10 percent, is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.