Citation Nr: 21008748 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 18-47 560 DATE: February 17, 2021 ORDER Entitlement to a separate disability rating of 10 percent for left knee instability is granted. REMANDED Entitlement to service connection for the residuals of a cerebrovascular accident (CVA) is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s left knee has been manifested by subjective complaints of instability. CONCLUSION OF LAW The criteria for a separate disability rating of 10 percent for left knee instability are met. 38 C.F.R. § 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1982 to May 1982, with additional service in the National Guard from January 1982 to January 1988 and from February 1996 to March 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2016 and November 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The claims for an increased disability rating for a left knee disability and for service connection for the residuals of a CVA were previously before the Board, in September 2019. At that time, the Board denied the claims. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). Pursuant to a Joint Motion for Remand (JMR) entered into by the Veteran and VA, CAVC vacated the Board’s September 2019 decision to the extent it denied the increased rating claim for a left knee disability and the claim for service connection for residuals of a CVA. Entitlement to a separate disability rating of 10 percent for left knee instability Pursuant to the terms of the JMR, the Veteran’s claim for an increased disability rating for his left knee disability was remanded in order for the Board to consider the probative value of the Veteran’s lay statements concerning left knee instability, consistent with the requirements of English v. Wilkie, 30 Vet. App. 347, 352 (2018). Pursuant to English, medical evidence is not inherently more probative than lay evidence in considering entitlement to a disability rating for knee instability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5257 covers “other impairment of the knee,” and provides a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. The Veteran is service connected for a left knee disability effective July 7, 2010 and has a 10 percent disability rating based on painful motion pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260. Here, the medical evidence, including a VA examination conducted in September 2018 and a private treatment note from August 2011, does not document left knee instability. There is, however, lay evidence that the Veteran experienced left knee instability. Specifically, a VA treatment record from August 2016 notes that the Veteran’s left knee “gives-way.” The September 2018 VA examiner also noted that the Veteran regularly used a brace and cane for walking. Use of these assistive devices was also noted as part of private treatment records from December 2017 and October 2019. The Board finds the lay evidence competent and credible, and sufficient to establish the existence of slight instability in the left knee. Based on the foregoing, the Board finds that the Veteran is entitled to a separate 10 percent rating for left knee instability. A rating higher than 10 percent is not warranted, as without objective evidence of instability, the Board finds that the instability the Veteran experiences is not most appropriately classified as moderate in degree of severity. REASONS FOR REMAND Entitlement to service connection for residuals from a CVA is remanded. Pursuant to the terms of the JMR, the claim for service connection for residuals of a CVA was remanded in order for the Board to address the Veteran’s contention that the condition was a result of his exposure to herbicide agents while serving on active duty at Fort McClellan. The Veteran’s contention that he was exposed to herbicides in service was remanded for additional development as part of the September 2019 Board decision and is still under consideration by the RO. The record reflects that the CVA was diagnosed on April 1, 2016 when the Veteran reported to the emergency department with elevated uncontrolled blood pressure and right sided weakness. As it pertains to direct service connection, the service treatment records are silent for any diagnosis related to a CVA or treatment or complaints that could be construed to be related to a later occurrence of a CVA. Although the Veteran contends that the CVA is related to his herbicide exposure in service, he has not submitted any objective medical evidence or medical treatises that would support, or even suggest, a correlation between herbicide exposure and the later occurrence of the Veteran’s CVA. The Veteran is competent to provide an opinion pertaining to certain medical issues, but the etiology of a CVA is medically complex, as it requires specialized medical education, the ability to interpret complicated diagnostic medical testing, and the complexity of linking herbicide exposure to symptom onset first experienced decades later. As such, the Board finds that the Veteran is not competent to provide an opinion on the etiology of his CVA and affords the lay contention no probative weight. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (a veteran is competent to provide a diagnosis of a simple condition, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994). Nor does the Board find any basis to obtain a medical opinion as there is no evidence beyond the Veteran’s claim to suggest that his CVA, or residuals thereof, may be related to herbicide exposure. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Board finds, however, that the claim for service connection for residuals of a CVA is inextricably intertwined with the claims for service connection for diabetes mellitus, heart disease and hypertension. Specifically, the Veteran was diagnosed with a CVA following an episode of elevated uncontrolled blood pressure. VA treatment records note the Veteran’s CVA as evidence of clinical atherosclerotic cardio-vascular disease. The Veteran also has a diabetes mellitus diagnosis. As noted, the Veteran’s claims for diabetes mellitus, a heart disability and hypertension were remanded as part of the September 2019 Board decision in order to determine whether the Veteran was exposed to herbicides while serving at Fort McClellan. Those remanded claims have not been readjudicated by the RO yet. As the Veteran’s CVA may be related to the diabetes, heart disease and hypertension conditions, the Board concludes that the claim should be also be remanded as inextricably intertwined. The matter is REMAND for the following action: 1. If, and only if, the Veteran is service-connected for diabetes, heart disease or hypertension, obtain VA medical opinions as to whether it is as likely as not that the Veteran’s CVA is causally related to, or aggravated by, any such service-connected condition. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, Associate 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.