Citation Nr: 21014358 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-28 064 DATE: March 12, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to a rating in excess of 10 percent for left knee disability is denied. REMANDED Entitlement to an acquired psychiatric disorder claimed as post-traumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability, diagnosed as degenerative arthritis of the lumbar spine, is not etiologically related to an in-service injury or disease; lumbar spine arthritis did not manifest to a compensable degree within the applicable presumptive period; and the Veteran’s lumbar spine disability was not caused or aggravated by a service-connected disability. 2. The Veteran’s left knee disability has been manifested by flexion limited to, at worst, 130 degrees and pain. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). 2. The criteria for a rating in excess of 10 percent for a left knee disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from September 1989 to September 1993 and June 1996 to December 1996. This appeal comes to the Board of Veterans’ Appeals (Board) from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2016, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A copy of the transcript of that hearing is of record. In November 2020, the Veteran was sent a letter advising him of that fact, and asked whether he wished to participate in another hearing before a current Veterans Law Judge. In that letter, the Veteran was also advised that if a response was not received within 30 days, the Board would assume that he did not want another hearing and proceed accordingly. To date, no response has been received by the Veteran and so, his claims will be addressed by the undersigned Veterans Law Judge. See 38 U.S.C. § 7107(c) (2018); 38 C.F.R. §§ 19.3(b), 20.707 (2019). In September 2018, the Board remanded these claims for additional development. The case has now been returned to the Board for further appellate action. Service Connection Claim – Lower Back The Veteran contends that he has a low back disability that is related to service or to a service-connected upper back disability (diagnosed as myofasciitis of the upper back). At his May 2016 hearing, the Veteran reported that his back injury coincided with the knee and ankle injuries he sustained in a vehicle accident in 1996. He reported that he was treated at Balboa Naval Hospital and diagnosed with back strain, and was treated with light duty and a back brace. He reported that he did not seek treatment post-service until 2006 or 2007. Service treatment records (STRs) show that clinical evaluation of the spine was normal at the Veteran’s separation examination in July 1993. The Veteran was involved in a motor vehicle accident in November 1996. X-rays of the cervical and thoracic spine were within normal limits. Clinical evaluation of the spine was normal at the Veteran’s December 1996 separation examination. During a VA examination in March 1997, the Veteran reported chronic upper back pain. VA outpatient treatment reports reflect that the Veteran was seen following a motor vehicle accident in January 2002. X-rays of the lumbar spine were normal. The records reflect reports of back pain in May 2013. X-rays of the lumbar spine revealed mild degenerative changes of the lumbar spine at that time. In February 2014, a VA examiner opined that it is less likely than not that the Veteran’s claimed low back disability is related to myofasciitis of the upper back. The examiner’s rationale was that upper back myofasciitis associated with neck and thoracic strain eighteen years ago has no connection with currently diagnosed mild lumbar spine degenerative changes at multiple levels. During a VA examination in August 2019, the Veteran was diagnosed with degenerative arthritis of the lumbar spine. The examiner opined that the Veteran’s degenerative arthritis of the lumbar spine was less likely than not incurred in or caused by service. The examiner indicated that there was no evidence in the STRs that a chronic condition developed, nor any post service evidence of a continuity of symptoms. Thus, there is a lack of nexus between the symptoms of pain in service and the current condition. The examiner also opined that it is less likely than not that the myofasciitis of the upper back aggravated the lumbar spine arthritis. The examiner’s rationale was that neither the service treatment reports, nor the post-service medical record indicate that the Veteran’s symptoms of the lumbar spine increased in frequency, duration, or severity after the onset of the diagnosis of myofasciitis of the upper back. Finally, the examiner opined that it is less likely than not that the myofasciitis of the upper back caused the lumbar spine condition. The examiner’s rationale was that neither the service treatment reports, nor the post-service treatment reports document an abnormality of gait or stance, to include instability or limping due to the upper back condition, to indicate the potential of increased weight-bearing on the lumbar spine. Although the Veteran has a current diagnosis of lumbar spine degenerative arthritis, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not shown as chronic in-service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Treatment records show that the Veteran was not diagnosed with lumbar spine degenerative arthritis until 2013, over seventeen years after his separation from service. Given the above, the Board concludes that the Veteran does not have a lumbar spine disability related to his active service or secondary to a service-connected upper back disability. The VA opinions, when taken together, are probative evidence because they are based on an accurate history and are accompanied by well-reasoned rationale as well as supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, there is no contrary medical opinions on file. To the extent that the Veteran believes his lumbar spine disability is either due to service or proximately due to or the result of/aggravated by his service-connected upper back disability, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In short, the Board gives more probative weight to the VA medical opinions of record. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a lumbar spine disability is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Claim – Left Knee The Veteran has asserted that he should be assigned a higher rating for his left knee disability as his symptoms are worse than those contemplated by the currently assigned rating. During a November 2013 VA examination, the Veteran reported bilateral knee tenderness treated with over the counter analgesics and he denied flare-ups of the left knee. Range of motion testing revealed flexion to 140 degrees and extension to 0 degrees. The Veteran was able to perform three repetitions of motion with no additional loss of motion, but there was pain on movement; disturbance of locomotion; interference with sitting, standing, and weight-bearing; positive patella rub; and tender lower patella tendon. Muscle strength testing and joint stability testing were normal. There was no history of recurrent subluxation/dislocation and no meniscal conditions. The Veteran ambulated with a slightly antalgic gait with no assistive devices. X-rays did not document degenerative or traumatic arthritis or patellar subluxation. The examiner diagnosed left knee strain. VA outpatient treatment reports reflect complaints of bilateral knee pain, but no relevant clinical findings pertinent to rating the left knee. During an August 2019 VA examination, the Veteran reported left knee pain and occasional swelling with flare-ups of knee pain biweekly, lasting 30 minutes to one hour at a time. He indicated that he had left knee pain upon sitting, standing, or walking. He reported that he can sit for five to ten minutes, stand for five minutes, and walk for fifteen minutes before pain develops causing him to stop and rest his knee. Range of motion testing revealed flexion to 130 degrees and extension to 0 degrees. There was no evidence of pain with weight-bearing. There was tenderness or pain on palpation of the left knee and no objective evidence of crepitus. There was no loss of range of motion or function after three repetitions of motion. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time. The examiner estimated that the Veteran experienced a loss of five degrees of flexion with flare-ups (i.e., flexion was to 125 degrees) and extension remained unchanged at 0 degrees. Muscle strength testing was normal and there was no ankylosis of the knee. Joint stability testing was normal. There is no meniscal condition and no history of surgical procedures. The examiner noted no evidence of pain on passive range of motion and no evidence of pain when the joint was used in non-weight bearing. The examiner diagnosed left knee strain. Based on the foregoing, the Board finds that a rating in excess of 10 percent for the Veteran’s left knee disability is not warranted. In this regard, there is no evidence of record showing the Veteran to have limitation of flexion to 45 degrees or less, or of limitation of extension to 10 degrees or more. In fact, flexion is limited to, at worst, 130 degrees and the Veteran has normal extension. In terms of functional loss, although the Veteran has reported left knee pain, such pain is not productive of symptoms that meet or are analogous to the criteria for a higher rating for limitation of motion. Therefore, a rating in excess of 10 percent for left knee disability is not warranted. Furthermore, the additional limitation that the Veteran experiences due to pain, weakness, fatigability, lack of endurance, or incoordination on repetition and during flare-ups was accounted for by the VA examiners when determining the Veteran’s range of motion and was further considered by the Board. Even with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 10 percent for functional impairment of the left knee disability. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261 (2019). Consideration has been given to assigning a higher rating under other diagnostic codes that pertain to the knee. However, there is no evidence of record showing the Veteran to have instability, subluxation, or ankylosis of the knee; a disability affecting the cartilage of the knee; tibia or fibula impairment in either leg; or genu recurvatum. As such, a higher rating is not warranted for the knee under another diagnostic code and the Veteran is appropriately rated based on painful motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5262, 5263 (2019). The Veteran’s belief that he is entitled to a higher than 10 percent rating for his left knee disability is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran’s general belief that he is entitled to a higher rating. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the left knee disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that a preponderance of the evidence is against the claim and entitlement to a rating in excess of 10 percent for the left knee disability is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND A review of the claims file reveals that a remand is unfortunately once again necessary before a decision on the merits of the remaining claims is reached. As discussed in greater detail below, the development conducted does not adequately comply with the directives of the September 2018 remand. Compliance with remand directives is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998) With regard to the issue of entitlement to service connection for an acquired psychiatric disorder, the Board, in pertinent part, remanded the claim to schedule the Veteran for a VA examination and obtain an etiology opinion. The Veteran was afforded a VA examination in August 2019 and diagnosed with PTSD, major depressive disorder, and alcohol use disorder. The examiner indicated that the major depressive disorder is considered secondary to PTSD, but provided no rationale for that conclusion. The examiner opined that the Veteran’s PTSD is due to reported pre-military, military, and post-military stressors and differentiation cannot be done without mere speculation. The examiner indicated that the VA RO should verify the reported stressors and if verified, it is likely that the Veteran’s reported military experiences exacerbated his underlying pre-military mental health issues. The examiner concluded that it is at least as likely as not that PTSD was incurred in or caused by his reported military stressors including “death of shipmate, hazing, injuries, working/living environment during service.” The examiner also opined that with regard to any other psychiatric disorders, it is likely that the Veteran’s reported military experiences exacerbated his pre-military underlying mental health issues and is at least as likely as not the psychiatric disorders had onset during or were caused by active service. Unfortunately, the examiner did not provide the requested opinions. She provided no rationale for her conclusion that major depressive disorder is secondary to PTSD, she referenced pre-military stressors, and she did not use the proper standard when rendering her opinions with regard to the diagnosed psychiatric disorders. Thus, as there has not been substantial compliance with the Board’s prior remand directive, remand is warranted so that a new etiology opinion can be obtained. Stegall, 11 Vet. App. at 271. With regard to the issue of entitlement to a TDIU, the Board finds that this issue is inextricably intertwined with the claim for service connection for an acquired psychiatric disorder. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, the Board will defer consideration of the issue at this time. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a psychiatrist or psychologist regarding the nature and etiology of any currently present psychiatric disabilities. The examiner must review the claims file prior to rendering the requested opinions, and note that review in the report. The examiner should indicate the following: Whether it is as least as likely as not (50 percent probability or more) that any currently present psychiatric disorder (diagnosed as PTSD, major depressive disorder, alcohol use disorder, and polysubstance use disorder) had onset during the Veteran’s active service, or is otherwise etiologically related to such service. The examiner should specifically note all stressful events contributing to a diagnosis of PTSD. The examiner must specifically comment on the findings of the October 2013 and September 2019 VA PTSD examinations, and the VA treatment records indicating multiple psychiatric disorders to include alcohol disorder in full remission, PTSD, major depressive disorder, and polysubstance use disorder, in full remission. The examiner must explain the impact of these reports on the provided opinion. The examiner must support any and all conclusions reached with a rationale. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his prior reports must be taken into account in formulating the requested opinions. If the examiner determines that another examination is necessary in order to provide the requested opinions, the Veteran should be scheduled for a psychiatric examination. 2. Confirm that the VA medical opinions provided comport with this remand and undertake any other development determined to be warranted. 3. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.