Citation Nr: 21014213 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-36 447 DATE: March 11, 2021 ORDER Entitlement to service connection for degenerative arthritis of the thoracolumbar spine is granted. Entitlement to a higher evaluation for degenerative arthritis, left knee, with chondromalacia is denied. Entitlement to a higher evaluation for degenerative arthritis, right knee, with chondromalacia is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran’s service-connected bilateral knee arthritis with chondromalacia and pes planus caused his degenerative arthritis of the thoracolumbar spine. 2. The Veteran’s degenerative arthritis, left knee with chondromalacia is manifest by flexion greater than 60 degrees with painful motion. 3. The Veteran’s degenerative arthritis, right knee with chondromalacia is manifest by flexion greater than 60 degrees with painful motion. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative arthritis of the thoracolumbar spine as secondary to bilateral knee arthritis with chondromalacia and pes planus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for a rating in excess of 10 percent for degenerative arthritis, left knee with chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003, 5260, 5261. 3. The criteria for a rating in excess of 10 percent for degenerative arthritis, right knee with chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1956 to June 1960, from July 1964 to August 1968, and from August 1971 to August 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was last before the Board in June 2017, at which time the Veteran’s claim was remanded. 1. Entitlement to service connection for degenerative arthritis of the thoracolumbar spine The Veteran asserts that his back disability is related to his in-service ejection seat training. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a 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). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In a January 2009 VA examination, the examiner opined that the Veteran’s thoracic spinal condition is not caused by his service-connected chondromalacia of the bilateral knees and bilateral pes planus because the Veteran’s thoracic spine condition is related to degenerative arthritis and spinal stenosis. The examiner also opined the Veteran’s thoracic spine condition is not caused by his documented event where he was treated for muscular back pain while he was in service in 1956 because his current thoracic spinal condition only began about two years prior to January 2009. In the June 2017 remand decision, the Board has found that the examiner’s rationale as to secondary service connection is unclear to why the diagnosed spine disability is not caused by the Veteran’s service-connected disabilities. The examiner also did not consider whether the service-connected disabilities aggravated the Veteran’s spine condition. In a February 2009 statement, the Veteran believes his back problem may be a result of ejection seat training at Eglin Air Force Base. The Veteran recalls suffering from pain in the lower back area for about a year. The Veteran notes seeing a medic; no x-rays were taken. A February 2009 private treatment record diagnoses the Veteran with spinal stenosis-other than cervical. The clinician reported explaining to the Veteran that he could not be certain whether the pain in the Veteran’s knees was due to his L3-4 spinal stenosis or due to his degenerative arthritis. The clinician’s statement does not speak to a relation of the Veteran’s spinal disability being related to an in-service event or to his service-connected knees. The statement considers the possibility of the reverse where the bilateral knee disabilities are worsened by the spinal disability. The examiner has indicated speculation in the relationship of the two disabilities. The Board takes into consideration the possibility of a relation between the two disabilities. In a September 2020 VA medical opinion addendum, the clinician opined that the Veteran’s spine disability is less likely than not proximately due to or the result of the Veteran’s service connected condition. The clinician stated: In all probability, from a biomechanical perspective, limping can cause back pain and aggravate pre-existing back pain. The clinician continued stating: in the case of an antalgic gait secondary to bilateral knee and/or bilateral flat feet disabilities, it would probably be necessary for the limp to be severe prolonged, meaning years, for it to have a significant impact on the initiation or aggravation of arthritis of the spine. As well, it would also be necessary for the Trendelenburg gait pattern to have been severe and present for an extended period of time, probably years, to have any permanent effect on the spine. In reviewing the clinician’s opinion and rationale, the Board finds the clinician has stated the possibility of and the permanency over time of the Veteran’s service connected knees and feet disabilities aggravating the Veteran’s spine disability. The clinician also opined that the Veteran’s spine condition was less likely than not incurred in or caused by the claimed in-service event. The clinician stated in his rationale: according to current research most common spinal injuries associated with ejection seat usage were spinal compression fractures. The clinician noted the evidence of a January 2008 MRI does not show the Veteran has or ever had a compression fracture. The clinician does not cite to the research. The clinician notes the Veteran’s service treatment records show a muscular back strain. The clinician does indicate the muscular back strain is not related to the Veteran’s current spine condition on the basis that the medical records are silent for any chronic thoracic or lumbar spine pain from 1957 to 2007. The clinician does not consider the Veteran’s statement of pain following service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current degenerative arthritis of the thoracolumbar spine is proximately aggravated beyond its natural progression by his service-connected bilateral knee arthritis with chondromalacia and pes planus. In reviewing the clinician’s opinion and rationale, the Board finds the clinician has stated the possibility of and the permanency over time of the Veteran’s service connected knees and feet disabilities initiating or aggravating the Veteran’s spine disability. It was indicated that it would probably be necessary for the limp to be severe prolonged, meaning years, for it to have a significant impact on the initiation or aggravation of arthritis of the spine. The record includes evidence showing reported use of a brace and cane, that the Veteran was impaired as to ambulation and he had disturbance of locomotion at the time of the November 2012 VA examination regarding the knees. The March 2011 private medical report noted a slight limp and that tandem gait was normal. The December 2020 examination did not indicate whether a limp was present. There is evidence showing a limp and the examiner did not foreclose the possibility of a limp could cause or aggravate the back condition. The Board finds that the 2020 VA opinion rationale regarding causation of the back by the service-connected knee condition does not support a finding that it is less likely than not that the knee condition caused the back condition and is essentially in relative equipoise as to the question of aggravation. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for degenerative arthritis of the thoracolumbar spine is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.” 2. Entitlement to a higher evaluation for degenerative arthritis, left knee, with chondromalacia 3. Entitlement to a higher evaluation for degenerative arthritis, right knee, with chondromalacia The Veteran asserts that he is entitled to a higher rating because of shooting pain and the occasional giving out of the knees. The Veteran’s degenerative arthritis left knee and right knee with chondromalacia are each rated under diagnostic code (DC) 5003, which provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved (discussed below). In the absence of limitation of motion, DC 5003 also provides for a 10 percent rating with X-ray evidence or involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is appropriate with X-ray evidence or involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Ankylosis is rated under DC 5256. DC 5257 provides for 10, 20, or 30 percent ratings for recurrent subluxation or lateral instability that is, respectively, slight, moderate or severe. Under DC 5258, a 20 percent evaluation is assigned for semilunar, dislocated cartilage with frequent episodes of “locking” pain, and effusion into the joint. Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. Under DC 5260, a noncompensable evaluation is assigned for flexion limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. Under DC 5261, a noncompensable evaluation is assigned for extension limited to 5 degrees. A 10 percent rating is assigned for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. Impairment of the tibia and fibula is rated under DC 5262 and genu recurvatum is rated under DC 5263. The Board notes a revision of the schedule of ratings for the musculoskeletal system effective February 2021. DC 5257 now reads as follows: Recurrent subluxation or instability: Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation 30 One of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation 20 Sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation 10 Patellar instability: A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker 30 A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker 20 A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker 10 A December 2008 private treatment record shows the Veteran was examined with a complaint of knee pain. On examination the Veteran walks with a normal heel toe gait without evidence of a limp. He has full range of motion of both knees. He has no tenderness in either knee. Ligaments are stable and there is no effusion. In a January 2009 VA examination, the Veteran stated his bilateral knee condition has not worsened over time in terms of frequency or severity. The examination found both knees appear normal. The Veteran has normal range of motion with extension to 0 degrees and flexion to 140 degrees bilaterally. The Veteran does complain of some patella tenderness on full flexion. The varus/valgus, Drawer and McMurray’s signs are all negative. A September 2010 private treatment record shows the Veteran was treated for left leg pain following reports of tripping over his do the day before. The Veteran reports he bent his left leg at an unusual angle resulting in pain to his left patella that is increased with knee flexion. The examiner notes palpable tenderness superior to the left patella without swelling or ecchymosis. The Veteran has normal range of motion with increased discomfort with flexion and extension. The diagnosis is left knee sprain, left knee pain. In a September 2010 follow up private treatment record, the Veteran’s left knee flexion is 90 degrees and extension 0 degrees. In a March 2011 VA examination, the Veteran reports the following symptoms: weakness, stiffness, giving way, and pain. He indicated he does not experience swelling, heat, redness, lack of endurance, locking, fatigability, deformity, tenderness, drainage, effusion, subluxation, and dislocation. The Veteran reports experiencing flare-ups as often as five times per day. The flare-ups are precipitated by physical activity and going up and down stairs. The flare-ups are alleviated by rest. The functional impairment is described as cannot do prolonged weight-bearing activities for more than 15 minutes, difficulty with standing/walking, and cannot walk fast or longer than 15 minutes without resting. The examiner found there to be tenderness and guarding of movement without signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, malalignment, drainage, subluxation, locking pain, genu recurvatum, crepitus, or ankylosis. On initial and repetitive range of motion testing for the left knee, the examiner found flexion at 110 degrees and extension at 0 degrees. On initial and repetitive range of motion testing for the right knee the examiner found flexion at 120 degrees and extension at 0 degrees. In a November 2012 VA examination, the Veteran did not report flare-ups that impact the function of the knee and/or lower leg. On initial and repetitive range of motion testing of the left knee the examiner found flexion at 75 degrees and extension at 0 degrees. On initial range of motion testing of the right knee the examiner found flexion at 100 degrees and extension at 0 degrees. On repetitive range of motion testing of the right knee the examiner found flexion at 70 degrees and extension at 0 degrees. The examiner noted less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, interference with sitting, standing and weight-bearing, crepitus, and hypermobility of the patella in the left knee. The examiner noted the Veteran uses brace and cane regularly. The examiner found no instability on testing. The examiner did find moderate patellar subluxation/dislocation of the left knee. In a September 2020 VA examination, the Veteran reports slow progressive worsening of knee pain. He rates his knee pain at 3 of 10 daily with flare-up pain at 6 of 10. He states the flare-ups last for four hours. The Veteran reports functional loss due to knee pain that limits activities which require greater than 30 minutes standing, sitting, walking, running, kneeling, crawling, squatting, and high impact activities. On initial range of motion testing for the left knee the examiner found pain on flexion, flexion to 95 degrees, and extension to 0 degrees. On repetitive range of motion testing for the left knee, the examiner found pain, flexion at 85 degrees, and extension at 0 degrees. On initial range of motion testing for the right knee the examiner found pain on flexion, flexion at 115 degrees, and extension at 0 degrees. On repetitive range of motion testing of the right knee the examiner found pain, flexion at 100 degrees and extension at 0 degrees. The examiner noted the examination was not being conducted during a flare-up. The examiner does note pain, weakness, fatigability or incoordination significantly limit functional ability. The examiner described the limited functional ability in terms of range of motion with for the left knee as flexion at 85 degrees and extension at 0 degrees. For the right knee, the examiner described flexion at 100 degrees and extension at 0 degrees. The examiner found active weight bearing and non-weight bearing motion of the left knee with flexion at 80 degrees and extension at 0 degrees; passive weight bearing and non-weight bearing motion with flexion at 95 degrees and extension at 0 degrees. The examiner found active weight bearing and non-weight bearing motion of the right knee with flexion at 90 degrees and extension at 0 degrees; passive weight bearing and non-weight bearing motion with flexion at 115 degrees and extension at 0 degrees. The examiner found no muscle atrophy, ankylosis, subluxation, or instability. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for degenerative arthritis left knee with chondromalacia. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 60 degrees or extension to 0 degrees. Private treatment and VA examinations from throughout the appeal period show range of motion for the left knee to be no worse than flexion at 75 degrees without abnormal extension; right knee to be no worse than flexion at 70 degrees without abnormal extension. The medical records have found no more than painful motion. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). In considering the other Diagnostic Codes, the RO granted separate service connection and evaluation of left knee patellar subluxation/dislocation associated with degenerative arthritis, left knee, with chondromalacia for moderate subluxation/dislocation at 20 percent under DC 5257. Reviewing the evidence and DC 5257 criteria prior to February 2021, the Board does not find an evaluation greater than 20 percent is warranted. The medical evidence, including 2012 VA examination, shows moderate patellar subluxation/dislocation. Further reviewing the evidence and DC 5257 post February 2021, the Board does not find an evaluation greater than 20 percent is warranted. There is no indication of surgical repair or prescribed assistive device following the February 2021 law change. The Veteran does indicate during a 2012 examination that he uses a cane and brace. VA examination in 2020 reports no use of a cane or brace. The evidence does not show the Veteran suffers from symptomology addressed in the criteria of other Diagnostic Codes. The evidence does not support a higher rating or additional rating for the Veteran’s left and right knee disabilities under other Diagnostic Codes pertaining to the knee and leg. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for degenerative arthritis left knee with chondromalacia. The Board also finds the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for degenerative arthritis right knee with chondromalacia. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lang, Attorney Advisor 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.