Citation Nr: 21009779 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 13-32 597 DATE: February 23, 2021 ORDER New and material evidence has been received, and the claim of entitlement to service connection for a left knee disability is re-opened. A rating in excess of 20 percent for lumbar spine degenerative disc disease is denied. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to a service-connected lumbar spine disability, is remanded. FINDINGS OF FACT 1. The evidence associated with the claims file following the December 2013 denial of the Veteran’s claim for service connection for a left knee disability is new and material evidence. 2. The Veteran’s lumbar spine degenerative disc disease has been manifested by forward flexion no worse than 65 degrees and no ankylosis. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of service connection for a left knee disability. 38 U.S.C. § 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for a rating in excess of 20 percent for lumbar spine degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1973 to August 1974. These matters come before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In an April 2014 rating decision, the RO continued a 20 percent disability rating for the Veteran’s service-connected lumbar spine degenerative disc disease. In a June 2016 rating decision, the RO denied service connection for left knee disability. When these matters initially appeared before the Board, the Board remanded in September 2017, February 2018, and August 2020. The matters have now returned to the Board for adjudication. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen claim of service connection for a left knee disability. The Veteran seeks service connection for a left knee disability. In a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), the Veteran’s claim for service connection was denied. The Veteran was notified of the denial, but did not perfect an appeal, and the December 2013 rating decision became final. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In October 2015, the Veteran filed to reopen his service connection claim for a left knee disability, which he now claimed was secondary to this service-connected lumbar spine degenerative disc disease. Evidence added to the claims file since the final December 2013 rating decision includes a June 2016 VA examination; an October 2017 VA examination; an August 2019 VA examination; VA medical records from the Durham VAMC; additional lay statement from the Veteran; and, social security administration (SSA) records. These VA examinations, treatment records, lay statements, and SSA records, constitute new and material evidence as no evidence establishing a relationship between the Veteran’s claimed left knee condition and service was present at the time of the December 2013 rating decision. The new evidence thus relates to unestablished facts necessary to substantiate the claim. Accordingly, the Board finds that the threshold for reopening the claim has been met and the claim for service connection for a left knee disability is reopened. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. Also, of record are VA examinations conducted in June 2016, October 2017 and August 2019. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). 2. Entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease (DDD). Spine disabilities are rated pursuant to the criteria of a General Rating Formula for Diseases and Injuries of the Spine governing Diagnostic Codes 5235 to 5243, set forth in 38 C.F.R. § 4.71a. Under the General Rating Formula, a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. In light of the rating criteria for the thoracolumbar spine, it is necessary to show ankylosis for a rating higher than 40 percent. It should also be noted that the levels listed above apply to Diagnostic Codes 5235 through 5243, unless the disabilities rated under Diagnostic Code 5243 are evaluated separately under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, as set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Veteran underwent a VA examination of his lower back in October 2017. The examiner noted a November 2017 (current) diagnosis of lumbar spine degenerative joint disease (DJD). Forward flexion was measured at 80 degrees with pain noted on exam that causes functional loss. The examiner stated there was no guarding; no muscle spasm; no ankylosis; and, no muscle atrophy. The examiner stated the Veteran has Intervertebral Disc Syndrome (IVDS) but that it did not result in any episodes of acute signs and symptoms that require bed rest prescribed by a physician in the past 12 months. The Veteran reported inability to stand or sit for prolonged periods or to bend without pain. He can lift no more than 15 pounds without pain. The Veteran underwent another VA examination of his lower back in August 2019. The examiner noted a current diagnosis of lumbar spine degenerative disc disease (DDD). Forward flexion was measured at 65 degrees with no additional loss after repetitive use testing. Pain was noted on exam and causes functional loss. The examiner stated there was no guarding or muscle spasm; no ankylosis; no muscle atrophy; and no IVDS. Imaging studies have been performed and the results document arthritis. The examiner noted the Veteran reports prolonged sitting, standing, and walking can be difficult because of the lumbar spine DDD and because of radiculopathy of his legs. VA treatment records from the Durham VAMC are associated with the Veteran’s claim file. In summary, these records reflect the Veteran was treated for low back pain over the years and has been prescribed medication for pain (hydrocodone and etodolac). A July 2018 record reflects decreased range of motion of the lumbar spine. A July 2019 record reflects normal range of motion of the lumbar spine. Upon review of the relevant evidence, the Board finds that the Veteran’s lumbar spine symptoms are consistent with the 20 percent rating currently assigned, based on the degree of forward flexion, which has been shown to be 65 degrees at its worst during the period on appeal, with no ankylosis shown. To obtain a higher rating for the Veteran’s lumbar strain, it is necessary to show forward flexion 30 degrees or less, or ankylosis. Here, however, there is simply no evidence that the Veteran’s forward flexion was 30 degrees or less, even when pain on motion is considered, or that he had ankylosis of the lumbar spine at any point during this appeal period. Thus, the Board finds that a higher rating is not warranted for the Veteran’s lumbar spine DDD. The Board has also considered the lay statements from the Veteran, including his reports of pain, but finds that the pain does not amount to forward flexion of 30 degrees or less or ankylosis of the thoracolumbar spine. In reaching this conclusion, the Board notes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, such an opinion falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To the extent that the Veteran contends that his lumbar spine DDD is more severe than currently evaluated, while the Veteran is competent to describe his symptoms, he is not competent to report that his lumbar spine DDD is of sufficient severity to warrant a certain percent evaluation under VA’s criteria for rating disabilities of the lumbar spine, as such an opinion requires medical expertise which he does not possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372. Finally, the Board notes that the Veteran has already been awarded service connection for radiculopathy of his left lower extremity and right lower extremity associated with his lumbar spine disability. No other neurological disabilities have been diagnosed. In sum, the preponderance of the evidence does not support a disability rating in excess of 20 percent for the Veteran’s service-connected lumbar spine DDD. The claim is denied. REASONS FOR REMAND Entitlement to service connection for a left knee disability, to include as secondary to a service-connected lumbar spine disability, is remanded. The Veteran contends that he is entitled to service connection for a left knee disability, to include as secondary to his service-connected lumbar spine degenerative disc disease. The Board acknowledges that the Veteran underwent VA examinations in June 2016, October 2017, and August 2019. However, the Board finds that the issue of aggravation has not been adequately addressed by the examiners. For example, in the most recent examination conducted in August 2019, the examiner opined that the claimed left knee disability was not “at least as likely as not” aggravated beyond its natural progression by the Veteran’s service-connected lumbar spine disability. However, as rationale, the examiner stated, “the medical literature does not support a causative medical relationship between Lumbar Spine Degenerative Disc Disease and Left Knee Arthritis, so aggravation cannot be established.” The Board finds that this August 2019 opinion does not adequately address the issue of aggravation. Because the examiner only addressed the causation aspect of secondary service connection, and did not properly address the aggravation aspect, the examination is inadequate. 38 C.F.R. § 3.310 (2016); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA provides an examination, even if not required to do so, an adequate one must be produced). The phrases “caused by” and “related to” do not address the aggravation aspect of secondary service connection. See Allen v. Brown, 7 Vet. App. 439 (1995). On remand, a new VA opinion must be obtained that adequately addresses the issue of aggravation – whether it is “at least as likely as not” that the Veteran’s left knee disability was aggravated beyond its natural progression by the Veteran’s service-connected lumbar spine disability. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate these records with the Veteran’s claim file. 2. Obtain a VA medical opinion to determine the current diagnosis and etiology of the Veteran’s left knee disability. The entire claims file, including this remand, must be made available to the examiner. The examiner must offer a well-reasoned opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed left knee disability has been aggravated beyond its natural progression by the Veteran’s service connected lumbar spine disability. A complete rationale must be given for all opinions and conclusions expressed. If the examiner finds it impossible to provide any part of the requested opinion without resort to speculation, he or she should so indicate and provide a rationale as to why such a finding is made. The need for an in-person examination or telehealth interview is left to the examiner’s discretion. Michael L. Marcum Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts 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.