Citation Nr: 21074884 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-32 735 DATE: December 16, 2021 ORDER Entitlement to secondary service connection for dry eye syndrome is granted. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome (right knee disability) on the basis of limitation is denied. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome (left knee disability) is denied. Entitlement to a separate initial 20 percent rating, but no higher, for right knee instability is granted from August 30, 2010. Entitlement to a separate initial 20 percent rating, but no higher, for left knee instability is granted from August 30, 2010. REMANDED Entitlement to service connection for an eye disorder other than dry eye syndrome is remanded. Entitlement to an initial rating in excess of 10 percent for lumbar spine strain prior to May 23, 2019 and in excess of 20 percent thereafter is remanded. FINDINGS OF FACT 1. The Veteran's dry eye syndrome is proximately due to his multiple sclerosis. 2. The Veteran's right knee disability has been manifested by painful flexion but noncompensable limitation of motion and no more than moderate instability throughout the appeal period. 3. The Veteran's left knee disability has been manifested by painful flexion but noncompensable limitation of motion and no more than moderate instability throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to secondary service connection for dry eye syndrome are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for entitlement to an initial rating in excess of 10 percent for right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5260. 3. The criteria for entitlement to an initial rating in excess of 10 percent for left knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5260. 4. The criteria for entitlement to a separate initial 20 percent rating, but no higher, for right knee instability are met from August 30, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5257 (as in effect prior to February 7, 2021). 5. The criteria for entitlement to a separate initial 20 percent rating, but no higher, for left knee instability are met from August 30, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5257 (as in effect prior to February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1979 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge. The Board remanded the claims on appeal for further development in March 2019, November 2019, and January 2021. The Board has bifurcated the eye disorder claim as reflected above, as a favorable determination with regard to dry eye syndrome is warranted at this time. 1. Entitlement to secondary service connection for dry eye syndrome is granted. As secondary service connection under 38 C.F.R. § 3.310 is warranted, the Board need not address the Veteran's contentions on direct service connection. Service connection may be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310(a). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998). Here, the Veteran has been diagnosed with refractive error and dry eye syndrome. See July 2011 and May 2019 VA examination reports. Notably, refractive errors are congenital or developmental defects and are not diseases or injuries for VA purposes, and the Veteran does not allege, and the record does not otherwise support, any superimposed disease or injury on such refractive error resulting in additional disability. 38 C.F.R. §§ 3.303 (c), 4.9; see also VAOPGCPREC 82-90 (1990). Thus, refractive error is not available for service connection and will not be further addressed. The Board also notes that the June 2021 examiner indicated the Veteran did not currently have dry eye syndrome, finding that the condition had resolved. However, since the Veteran was diagnosed with dry eye syndrome during the appeal period, he is considered to have a current disability, even if it resolved. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, the first element of secondary service connection is satisfied for dry eye syndrome. Turning to the second element of secondary service connection, the Veteran is service-connected for multiple sclerosis. As such, element two is also met. Regarding the last element, nexus, the record contains unfavorable nexus opinions rendered by a VA examiner in May 2019 and July 2020 regarding secondary service connection. However, the examiner did not provide adequate rationale for his negative opinion in May 2019 and in his July 2020 opinion, he based his rationale on a temporal requirement not outlined in 38 C.F.R. § 3.310. Therefore, these opinions are inadequate and are afforded no probative value. The Veteran was most recently afforded a VA eye examination in June 2021. The examiner opined that the Veteran's dry eye syndrome was less likely due to his multiple sclerosis, indicating that there was no definitive way to objectively determine the etiology, and noted review of the medical article submitted by the Veteran. The examiner, however, also stated "[f]urther research was completed and a nexus is known between DES [dry eye syndrome] and MS [multiple sclerosis]." He indicated that one of the two possible causes of dry eye syndrome was due to early onset symptom of multiple sclerosis, explaining that "[s]ince DES is a known sign o[r] symptom that has its onset well before a MS diagnosis is issued, the DES could be due to the service connected MS." The Board observes that the medical article submitted by the Veteran in August 2019, which was reviewed by the June 2021 VA examiner, found that medications for multiple sclerosis often had "anticholinergic side effects and cause dry eye" and that some patients had a "disturbance of the tear film and the surface layer of the cornea due to poor blinking, chronic kerato-blepharo-conjunctivitis, or medication side effects." See Jan M. Roodhooft, Summary of Eye Examinations of 284 Patients with Multiple Sclerosis, International Journal of MS Care (2012). Although the June 2021 VA examiner provided a negative opinion for dry eye syndrome, however, reading the opinion as a whole and in the context of the evidence of record, and when drawing reasonable inferences from and applying the benefit of the doubt to the rationale of examiner's opinion, the nexus statement is in favor of the claim. It reasonable to infer from the from the VA examiner's comments that the Veteran's dry eye syndrome is related to his multiple sclerosis, since the examiner conducted additional research and found "a known nexus" between the two conditions, and the medical article submitted by the Veteran further supports the claim. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In sum, the above-cited findings are demonstrative of an etiological relationship between the Veteran's dry eye syndrome and multiple sclerosis, and the Board will resolve all reasonable doubt in the Veteran's favor and find a proximate cause relationship between them. 2. Entitlement to an initial rating in excess of 10 percent for right knee disability is denied. 3. Entitlement to an initial rating in excess of 10 percent for left knee disability is denied. 4. Entitlement to a separate initial 20 percent rating, but no higher, for right knee instability is granted from August 30, 2010. 5. Entitlement to a separate initial 20 percent rating, but no higher, for left knee instability is granted from August 30, 2010. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020). VA's General Counsel held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Thus, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. As a preliminary matter, the Board notes that although the Veteran presented for VA examinations in July 2011, May 2015, and May 2019, the most recent June 2021 VA examination is the only examination that is compliant with the requirements set forth by Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, only the June 2021 VA examination report will be utilized for evaluation of the Veteran's bilateral knee disability based on range of motion, as it is the only adequate examination of record. In this regard, the Board emphasizes that the prior non-compliant examinations show range of motion findings less favorable than those in the June 2021 VA examination report. Thus, there is no prejudice to the Veteran in not considering these examinations to rate his knees based on limitation of motion and DeLuca factors. The appeal period before the Board is from the effective date of service connection, or August 30, 2010. The Veteran's bilateral knee disability is rated pursuant to DC 5260. Under DC 5260, a 10 percent rating is assigned for flexion limited to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, and a maximum 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Also, under DC 5261, a 10 percent rating is warranted for limitation of extension to 10 degrees, with higher ratings available for more severe limitation. 38 C.F.R. § 4.71a, DC 5261. The Board notes that the rating criteria for DCs 5260 and 5261 were not affected by the February 7, 2021 amendments. On VA examination in June 2021, the Veteran reported continual bilateral knee pain, giving way with increased activity, and severe flare-ups precipitated by walking too long and getting overheated. Right knee range of motion showed flexion to 80 degrees, extension to zero degrees, with pain on flexion and active motion. The examiner indicated that pain, weakness, incoordination, and fatigability additionally limited the Veteran's right knee range of motion, noting flexion was limited to 60 degrees and extension to zero degrees, after being examined upon repetition, repetitive use over time, and during a flare-up. Left knee range of motion showed flexion to 60 degrees and extension to zero degrees, with pain on flexion. There was no additional loss of motion upon repetition, repetitive use over time, or during a flare-up due, as the examiner indicated left knee flexion remained at 60 degrees and extension at zero degrees throughout the examination, but noted symptoms of pain, weakness, lack of endurance, and incoordination causing functional loss. The examiner noted additional contributing factors of the bilateral knees included interference with standing, disturbance of locomotion, and weakened movement. There was no evidence of muscle atrophy, ankylosis, tenderness or pain on palpation, recurrent subluxation, effusion, or instability. The Veteran's regular use of a wheelchair, cane, walker, and braces for his bilateral knee disability, back disability, and multiple sclerosis was noted. The Board finds that, when considering DeLuca factors, the Veteran's left and right knee disabilities have been productive of painful flexion, but noncompensable limitation of motion, thereby precluding ratings in excess of 10 percent under DC 5260 or a separate rating under DC 5261. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202; VAOPGCPREC 9-2004. Indeed, the June 2021 VA examination report shows bilateral knee flexion limited to no less than 60 degrees after repetitive motion and during a flare-up, and there is no evidence of painful extension. Therefore, a rating higher than 10 percent is not warranted for either knee at any point during the appeal period. However, the Board finds that separate 20 percent ratings are warranted for both knees under former DC 5257 throughout the appeal period, effective August 30, 2010. As the old rating criteria for DC 5257 is more favorable to the Veteran, only that version will be considered herein. DC 5257 evaluates recurrent subluxation or lateral instability of a knee, and provides a 10 percent rating for slight impairment, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, DC 5257. In this regard, the record shows the Veteran's report of bilateral knee weakness and giving way, and reflects his regular use of assistive devices, including braces, a cane, a walker, and a wheelchair for his bilateral knee disability, as well as for his back disability and multiple sclerosis. See July 2011 (reports giving way and weakness; use of a rollator); May 2015 (regular use of braces); May 2019 (regular use of braces, cane, and walker); August 2020 (regular use of a cane and walker); and June 2021 (reports weakness and giving way with increased activity; regular use of braces, cane, walker, and wheelchair) VA examination reports. While objective knee joint stability testing was normal, based on evidence reflective of bilateral knee instability and evidence demonstrating that the Veteran required the regular use of knee braces, a cane, and a walker for ambulation throughout the appeal period, in addition to regular use of a wheelchair most recently, the Board finds that the record supports a finding of moderate instability of the right and left knees so as to warrant 20 percent ratings under former DC 5257 from August 30, 2010. A higher rating is not warranted, as the Board finds that a "severe" instability rating would necessitate objective evidence of instability on physical examination or require the use of such assistive devices solely as a result of the Veteran's bilateral knee disability. Here, there is no objective evidence of knee joint instability shown in the contemporaneous examination reports and treatment records, and the Veteran's back disability and multiple sclerosis also necessitates use of a cane, walker, and wheelchair, and thus his bilateral knee instability does not more closely approximate severe instability under DC 5257. Additionally, the Board has considered whether higher or separate ratings are warranted under alternate diagnostic codes. However, there is no indication of ankylosis, dislocation or removal of semilunar cartilage, tibia and fibula impairment, or genu recurvatum in either knee during the appeal period. See July 2011, May 2015, May 2019, August 2020, and June 2021 VA examination reports. As such, ratings under DCs 5256, 5258, 5259, 5262, and 5263 are precluded. REASONS FOR REMAND 6. Entitlement to service connection for an eye disorder other than dry eye syndrome is remanded. As noted above, the Veteran was recently afforded a VA eye examination in June 2021. He was diagnosed with nuclear sclerotic cataracts, but the examiner did not provide an etiological opinion as to this newly diagnosed disorder. Accordingly, an addendum opinion is necessary on remand and any outstanding treatment records should also be secured. 7. Entitlement to an initial rating in excess of 10 percent for lumbar spine strain prior to May 23, 2019 and in excess of 20 percent thereafter is remanded. Another remand is required, as there has not been substantial compliance with the directives of the January 2021 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). The Veteran was afforded a VA examination in June 2021 but given his debilitated condition and risk of falling the examiner was unable to conduct range of motion testing and just observed his passive range of motion. The examiner stated she was unable to estimate the resulting additional functional loss during a flare-up in degrees of range of motion, because Veteran was unable to perform the initial active range of motion testing during the examination and therefore without a baseline established, it would be sheer speculation to comment. Furthermore, although the examiner noted there was no ankylosis, she did not address whether the Veteran had the functional equivalent of ankylosis. The examiner also stated that she concurred with the Board's recommendation in having the Veteran's lumbar spine disability be evaluated by an orthopedic physician. The Board emphasizes that the prior remand directives noted a physical examination was not necessary and only requested an opinion. As the June 2021 VA examiner was unable to provide an opinion as requested, a remand is warranted under Stegall for an opinion from an orthopedic physician. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Obtain an addendum opinion from a VA examiner addressing the etiology of the Veteran's eye disorder other than dry eye syndrome. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's nuclear sclerotic cataracts (see June 2021 VA examination report): (a) had their onset in or are otherwise related to service, to include as a result of the documented April 1987 reports of blurry vision, eye irritation, burning, decreased vision, and diagnosis of bilateral chemical keratitis after swimming in a pool therein. In addressing this question, please concede as truthful the Veteran's testimony that he has had vision issues continuously since service, and determine whether a nexus to service is "medically plausible" based on the same; (b) are proximately due to his service-connected multiple sclerosis or any medications used to treat the same; or (c) have been aggravated (worsened beyond natural progression) by his service-connected multiple sclerosis or any medications used to treat the same. In addressing these questions, please consider and discuss the article "Summary of Eye Examinations of Patients with Multiple Sclerosis" submitted by the Veteran in August 2019. Also, please note there is no temporal requirement that the primary condition (multiple sclerosis) be service-connected, or even diagnosed, at the time the secondary condition (cataracts) is incurred, and reliance on this fact will render any opinion inadequate. If the examiner is unable to opine without resorting to speculation, he or she should offer a rationale for reaching that conclusion. 4. Obtain an opinion from an orthopedic physician addressing the nature of the Veteran's lumbar spine disability during a flare-up. The claims file should be made available to the examiner. No additional examination of the Veteran is necessary, unless the examiner indicates otherwise. Following a review of the claims file, to include the July 2011, May 2019, and June 2021 VA examination reports, the November 2018 Board Hearing Testimony, the August 2019 statement, and the Veteran's description of flare-ups therein, the examiner should: (a) Provide an opinion describing functional impairment of the Veteran's lumbar spine due to flare-ups caused by his service-connected lumbar spine disability, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). Noting that the Veteran was not examined during a flare-up will not suffice. (b) Provide an opinion as to whether the Veteran has had the functional equivalent of ankylosis of the spine, to include during flare-ups, caused by his service-connected lumbar spine disability. See Board Hearing Transcript at 21-22 and August 2019 statement. If so, please indicate the date of onset, and determine whether it is more analogous to favorable or unfavorable ankylosis and whether it affects the entire thoracolumbar spine or the entire spine. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.