Citation Nr: 21076535 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-40 447 DATE: December 27, 2021 ORDER Service connection for a left knee disorder, to include as secondary to service-connected disabilities of the right knee or right ankle, is denied. A disability rating in excess of 10 percent for cartilage, semilunar, removal of, symptomatic with limited flexion and arthritis, right knee status post arthroscopy ("right knee disability") is denied. FINDINGS OF FACT 1. The Veteran's left knee disorder is not caused or aggravated by any service-connected disability. 2. For the entire appeal period, the Veteran's right knee disability is manifested by objective evidence of arthritis and painful motion, with flexion limited to, at most, 80 degrees and extension to 5, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination or as a result of repetitive motion and/or flare-ups, without ankylosis, recurrent subluxation or lateral instability, impairment of the tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disorder, as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1974 to December 1977. This appeal comes before the Boards of Veterans' Appeals (Board) from a rating decision issued in February 2015 by the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas. These matters were previously before the Board in August 2019, at which time they were remanded for further development. The Board finds that there has been substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App 268 (1998). Service Connection left knee The Veteran seeks service connection for a left knee disability, diagnosed as arthritis, to include as secondary to his service-connected right knee and right ankle disabilities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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 by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). The Board notes that the Veteran does not allege, nor does the record reflect, that he first manifested a left knee disorder during service or that the disorder is otherwise related to service on a direct basis. In this regard, his service treatment records are silent for any complaints, treatment, or diagnoses referable to his left knee. Rather, the Veteran has claimed throughout his appeal that he developed a left knee disorder secondary to his service-connected right knee and ankle. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider "all possible" substantive theories of recovery; where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that his service-connected right knee and ankle disabilities altered his gait and that, as a result of walking with said gait, he developed left knee arthritis. As noted supra, he has asserted no theory of direct causation and the Board will examine only the purported relationship between his service-connected right knee and ankle and his diagnosed left knee arthritis. The Veteran underwent a VA examination for his knees in February 2015. At that time, the examiner opined that it was less likely as not that the Veteran's left knee arthritis was related to his service-connected right knee disabilities. His rationale was that arthritis of one knee did not transfer to the other knee; they were not linked together. In July 2017, the Veteran underwent an additional examination. The examiner concluded that the Veteran's left knee disability was not etiologically related to the service-connected right ankle disability. He explained that the current peer reviewed medical literature did not support a finding that there was a casual relationship between ankle conditions and the subsequent development of contralateral knee pathology. The Veteran's bilateral knee x-rays demonstrated equivalent bilateral degenerative joint disease, it was most likely that the Veteran's left knee arthritis was due to the normal aging process. In March 2017, the Veteran submitted a medical opinion from a private doctor, Dr. P.S.B., regarding the etiology of left knee pain. Dr. P.S.B. concluded that it was as likely as not that the Veteran's left knee pain was a secondary consequence of his service-connected right knee and ankle conditions. The doctor explained it was not unreasonable, and thus plausible, that overcompensation related to the right ankle caused the Veteran to develop traumatic arthritis in the left knee. He explained that the Veteran's ankle fracture was the type from which arthritis "may occur." In August 2019 the Board remanded to obtain a new examination and opinion. Thereafter, in December 2019, the Veteran underwent another VA examination. The examiner explained that degenerative arthritis in one limb did not cause degenerative arthritis in the other knee. The Veteran had age-related degenerative arthritis, as shown on x-ray imaging from 2015. Degenerative arthritis is not caused by a specific event; rather, it is multifactoral in nature and due to a lifetime of wear and tear. It is a complex interplay between mechanical, cellular and biomechanical factors leading to end-stage pathology. Age is the strongest predictor of such. Further, it was less likely than not that there was aggravation of the left knee arthritis by the Veteran's service-connected ankle. The examiner explained that when the Veteran first reported knee pain, in 2004, his gait was normal. Imaging since that time showed age-related arthritis. Based on this evidence, the Board must find that service connection is not warranted. The Board finds the December 2019 VA opinion, which reflects consideration of the entirety of the record and provides a complete rationale supported by the evidence of record, highly probative. The opinion offers a clear conclusion with supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In contrast, the February 2015 and March 2017 VA opinions are afforded some probative weight, as they provide some explanation for their respective conclusions that the Veteran's left knee arthritis developed due to the aging process. Id. Regarding Dr. P.S.B.'s March 2017 opinion, indicating a plausible nexus, a medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Morris v. West, 13 Vet. App. 94, 97 (1999); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993), (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). As his opinion indicated only that a connection was "not unreasonable" and was "plausible," it is too speculative and equivocal to support a nexus. Stegman v. Derwinksi, 3 Vet. App. 228, 230 (1992) (favorable evidence which does little more than suggest possibility of causation is insufficient to establish service connection). Further, the Board finds that Dr. P.S.B. did not provide an adequate rationale for his conclusion that the Veteran's service-connected disabilities caused the Veteran to develop arthritis in his left knee; rather, he only indicated that they "may" cause arthritis to develop. Consequently, the probative weight of the VA examiners opinions outweighs that of the speculative private opinion. See Nieves-Rodriguez, supra; Stefl, supra. The Board acknowledges the Veteran's sincerely held belief that his left knee disorder was caused by his right knee and ankle disabilities; however, the etiology of a musculoskeletal disorder is a complex medical question, requiring specialized experience. As such, the Veteran is not competent to provide such an opinion, which falls outside the realm of knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, while the Veteran is competent to report observable symptoms of a knee disorder, any attempt to diagnose its origin extends beyond an observable cause-and-effect relationship. Thus, the only competent evidence of record concerning the relationship between the Veteran's knee disorder and his right knee and ankle disabilities is the probative December 2019 opinion, supported by the findings of the previous VA opinions, all of which determined that the Veteran's left knee arthritis was due to age, and not aggravated by the service-connected right knee or ankle. Therefore, the Board finds that service connection for a left knee disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. The claim is denied. Increased disability rating right knee Throughout the course of this appeal, the Veteran has contended that the service-connected right knee disability has been manifested by more severe symptoms than that contemplated by the 10 percent disability ratings assigned. 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 veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. 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. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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; DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran's right knee disability has been rated as 10 percent disabling for the entire appeal period under Diagnostic Code 5010-5260. Under Diagnostic Code 5010, traumatic arthritis is evaluated as degenerative arthritis. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. In the absence of limitation of motion, Diagnostic Code 5003 provides for a 10 percent rating with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating under Diagnostic Code 5003 requires involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. For the purpose of rating disability from arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where extension is limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. VA's General Counsel has stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 2004). The Veteran underwent a VA examination in January 2015. At that time, the examiner noted that initial range of motion (ROM) flexion to 110 degrees and extension to 0 degrees. The Veteran reported flare ups, but the examiner was unable to approximate any further ROM limitation. There was no subluxation, instability, recurrent effusions, instability or ankylosis found on examination. The Veteran was given another VA examination in July 2017. Here the examiner noted that initial ROM flexion 0 to 100 degrees and extension 100 to 0 degrees. After repetitive use, there was no additional functional loss or ROM limitation noted. The Veteran did report flare ups, but the examiner was unable to approximate any further ROM limitation. There was no subluxation, instability, recurrent effusions, instability or ankylosis found on examination. The Veteran underwent further VA examination in December 2019. There, the examiner noted that ROM flexion to 90 degrees and extension to 5 degrees. After repetitive use reduced ROM was measured as flexion to 80 degrees and extension to 5 degrees. The Veteran did report flare ups. The examiner was able to estimate the Veteran's ROM during flare ups as flexion 40 to 80 degrees and extension 80 to 40 degrees. There was no subluxation, instability, recurrent effusions, instability or ankylosis found on examination. Thus, based upon the foregoing, the Board finds that the Veteran's right knee disability does not warrant a rating in excess of 10 percent under Diagnostic Code 5260 or 5261. In this regard, the record does not show that his range of motion was limited to the extent necessary to warrant a higher rating under Diagnostic Code 5260. Specifically, the evidence demonstrates that the Veteran's right knee flexion is limited to 80 degrees, at most, but such does not result in additional functional loss more nearly approximating limitation of flexion to 30 degrees, which is necessary for the assignment of a 20 percent rating under Diagnostic Code 5260, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Further, the Veteran is in receipt of the minimal compensable rating due to the provisions of Diagnostic Code 5003 for painful limitation of motion due to arthritis that is not otherwise compensable. Thus, a rating in excess of 10 percent for the Veteran's right knee disability pursuant to Diagnostic Code 5260 is not warranted. Moreover, a higher or separate rating is not warranted pursuant to Diagnostic Code 5261 as the evidence of record shows that the Veteran's right knee extension has been limited at most to 5 degrees, which is required for a separate noncompensable rating under such Diagnostic Code, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. The Board has considered whether a higher or separate rating is warranted under Diagnostic Code 5257. VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). In this regard, such Diagnostic Code provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. However, at all of the Veteran's VA examinations, he was found to have normal right knee stability tests and no history of right knee lateral instability was noted. None of the other evidence of record shows any right knee instability. Thus, the Board finds that the Veteran is not entitled to a higher or separate rating under Diagnostic Code 5257. The Board has considered the applicability of Diagnostic Code 5259, as the Veteran has undergone meniscal surgery on his right knee. The evidence indicates that meniscal cartilage was partially removed from the right knee, which would warrant a 10 percent rating under Diagnostic Code 5259. However, as the symptoms manifested by that removal, such as pain, swelling, and other problems, are contemplated in the current ratings under Diagnostic Code 5010-5260 the Board concludes that assigning a separate rating under Diagnostic Code 5259 would constitute impermissible pyramiding. Finally, as the evidence does not show ankylosis, impairment of the tibia or fibula, or genu recurvatum, higher or separate ratings under Diagnostic Codes 5256, 5258, 5262, and 5263, respectively, are not warranted. In reaching its conclusions, the Board acknowledges the Veteran's belief that his right knee disability is more severe than as reflected by the currently assigned disability rating. However, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of his bilateral knee disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of such disabilities. (Continued on the next page) In sum, the Board finds that a rating in excess of 10 percent for the Veteran's right knee disability is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The claim is denied. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lent, Edward 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.