Citation Nr: 21015741 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 06-21 111 DATE: March 18, 2021 ORDER Entitlement to service connection for a left knee disability is granted. Entitlement to a rating in excess of 20 percent for status post right knee anterior cruciate ligament (ACL) tear from July 29, 2005, to March 10, 2009, and from July 1, 2010, is denied. Entitlement to a rating in excess of 20 percent for limitation of right knee extension, from April 28, 2016, is denied. REMANDED Entitlement to service connection for sinusitis is remanded. FINDINGS OF FACT 1. The Veteran’s left knee disability is proximately due to a service-connected right knee disability. 2. From July 29, 2005, to March 10, 2009, and from July 1, 2010, the Veteran’s right knee disability has been manifested by flexion limited to, at worst, 80 degrees and pain; recurrent subluxation and lateral instability have not been shown. 3. Since April 28, 2016, the Veteran’s right knee disability has been manifested by extension limited to, at worst, 15 degrees and pain. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2019). 2. From July 29, 2005, to March 10, 2009, and from July 1, 2010, the criteria for a rating in excess of 20 percent for status post right knee ACL tear have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5003, 5256-5263 (2019). 3. Since April 28, 2016, the criteria for a rating in excess of 20 percent for right knee limitation of extension have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5003, 5256-5263 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1986 to June 1988. This appeal before the Board of Veterans’ Appeals (Board) arose from an August 2005 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims on appeal to the agency of original jurisdiction (AOJ) for further evidentiary development in January 2010, June 2012, December 2015, and July 2018. In June 2009, Veteran testified during a Board videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In correspondence dated in January 2021, the Veteran was offered the opportunity to testify at another hearing; however, he did not respond within 30 days. Therefore, the Board will continue review of the appeal. A transcript of the hearing is associated with the claims file. Service Connection – Left Knee The Veteran contends that he has a left knee disability that is related to service or to a service-connected right knee disability. A review of the Veteran’s service treatment reports reveals that clinical evaluation of the lower extremities was normal at the Veteran’s entrance examination in January 1986. The Veteran was assessed with bilateral patellofemoral pain syndrome in April 1986. The records reference left knee edema in May 1988 but all clinical findings are referable to the right knee. The Veteran waived a separation examination at his separation from service. The Veteran did not report any left knee problems when he was examined for a right knee disability at VA in April 1991. X-rays of the left knee obtained at VA in June 1994 revealed mild degenerative changes. At a July 2012 VA examination, the Veteran reported pain, instability, and occasional swelling of the left knee. The examiner diagnosed degenerative joint disease of the left knee. The examiner opined that the Veteran’s left knee degenerative joint disease is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that the Veteran did not develop degenerative joint disease of the left knee until around 2010 almost twenty years after discharge. The examiner also noted that there is no conclusive evidence that injury to one knee can lead to degenerative joint disease of the other knee. In April 2013, a VA addendum opinion was obtained. The examiner opined that it is not likely that the left knee condition is due to the service-connected right knee condition. No rationale was provided. During a VA examination in April 2019, the Veteran was diagnosed with osteoarthritis of the left knee. The examiner opined that the left knee disability is less likely than not related to service. The examiner also opined that the left knee disability is at least as likely as not proximately due to or the result of the Veteran’s service-connected right knee disability because the Veteran’s gait was altered due to pain in the right knee. The Board finds that the July 2010 and April 2013 VA medical opinions have no probative value. The July 2010 examiner failed to specifically address secondary service connection including whether left knee ostearthritis was aggravated by the service-connected right knee disability. Additionally, the April 2013 VA clinician did not include any rationale for the opinion nor was aggravation addressed. Therefore, the opinions do not include well-supported rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The evidence in favor of the claim includes the April 2019 VA opinion, as well as the Veteran’s lay statements. As noted, the clinician opined that the Veteran’s left knee disability is at least as likely as not proximately due to or the result of the Veteran’s service-connected right knee disability and he noted that the Veteran’s gait was altered due to his right knee pain. The clinician’s opinion is consistent with the Veteran’s testimony regarding having to overcompensate with his left knee due to his right knee problems. Based on the foregoing, the Board finds that service connection for a left knee disability as secondary to a service-connected right knee disability is warranted. As described above, the two negative opinions fail to opine as to aggravation. As the only adequate opinion is positive, and because it is consistent with the evidence of record, the Board will resolve any reasonable doubt in favor of the Veteran and grant service connection for a left knee disability as secondary to a service-connected right knee disability. Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Increased Rating – Right Knee The Veteran contends that his right knee disabilities warrants higher ratings. VA treatment reports reflect reports of right knee pain and include a right knee disability as an active problem. At a July 2005 VA examination, the Veteran reported chronic knee pain aggravated with walking, climbing stairs, and exposure to cold weather. Clinical evaluation of the knee revealed mild soft tissue and bony swelling and tenderness to palpation medially. Range of motion testing revealed flexion to 120 degrees and extension to 0 degrees with pain beyond 80 degrees of flexion. The examiner indicated that all movements of the knee were performed slowly and with guarding. There was no evidence of fatigability, loss of endurance, or evidence of weakened movement against resistance. Muscle strength and joint stability testing were normal. The examiner diagnosed degenerative joint disease of the right knee. At a July 2010 VA examination, the Veteran reported deformity, giving way, instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, weekly locking episodes, constant effusions, warmth, swelling, or tenderness. Physical examination revealed an antalgic joint with poor propulsion. The examiner noted crepitus, deformity, malalignment, subpatellar tenderness, instability, and guarding of movement. Joint stability testing was not performed. Range of motion testing revealed flexion to 90 degrees and extension to 0 degrees with objective evidence of pain with active motion of the left knee. There was objective evidence of pain following repetitive motion but no change in the ranges of motion. There was no joint ankylosis. X-rays revealed mild osteoarthritis of the right knee. At a July 2012 VA examination, range of motion testing of the right knee revealed 80 degrees of flexion with pain and 0 degrees of extension. The Veteran was able to perform three repetitions of motion with no change in the ranges of motion. The Veteran was diagnosed with degenerative joint disease of the right knee with meniscus and anterior cruciate ligament tear. Muscle strength testing of the right knee revealed some active movement against some resistance. Joint stability testing was normal for the right knee. There was no evidence of recurrent patellar subluxation/dislocation. The examiner indicated that the Veteran had a meniscal tear but did not indicate that there were any residual signs or symptoms related to a meniscectomy. The Veteran ambulated with the regular use of a knee brace. At an April 2016 VA examination, the Veteran denied flare-ups of the right knee and any additional limitations. Range of motion testing revealed flexion to 120 degrees and extension to 5 degrees. The Veteran was able to perform three repetitions of motion with no additional functional loss or loss of range of motion. There was no ankylosis of the right knee. Muscle strength testing was normal. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing did not reveal instability. The examiner indicated that the Veteran underwent several surgical procedures (a debridement in 2002 and an ACL reconstruction in 2009) with resultant knee stiffness. The Veteran ambulated without the use of assistive devices. The examiner diagnosed the Veteran with right knee osteoarthritis and ACL tear. At a June 2017 VA examination, the Veteran reported pain and stiffness and he denied flare-ups of the right knee. Range of motion testing revealed flexion to 120 degrees and extension to 5 degrees. There was on pain noted on examination or with weight bearing. There was no right knee tenderness or evidence of crepitus. The Veteran was able to perform three repetitions of motion with no additional functional loss or loss of range of motion. The examiner noted a small right knee effusion. There was no ankylosis of the right knee. Muscle strength testing was normal. There was no history of recurrent subluxation or lateral instability. The examiner noted intermittent swelling. Joint stability testing did not reveal instability. The examiner indicated that the Veteran underwent several surgical procedures. The Veteran ambulated with the occasional use of a right knee brace. The examiner diagnosed the Veteran with right knee osteoarthritis and ACL tear. At an April 2019 VA examination, he reported constant knee pain. He denied flare-ups of the right knee. Range of motion testing revealed flexion to 100 degrees and extension to 15 degrees with pain on examination and pain on weight bearing. There was no tenderness of the right knee but there was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions. The examiner reported that there was no additional functional loss after repetitive use over time. There was no ankylosis of the right knee. Muscle strength testing was normal. There was no history of recurrent subluxation or lateral instability. Joint stability testing did not reveal instability. The examiner noted a meniscus tear with frequent episodes of joint pain. The Veteran ambulated without the use of any assistive devices. The examiner reported that there was evidence of pain on passive range of motion testing of the right knee but no pain on non-weight bearing testing. The examiner diagnosed the Veteran with a right knee meniscal tear, right knee ACL tear, and right knee osteoarthritis. As an initial matter, the Board notes that in the June 2012 decision, the Board also denied the Veteran’s claim for a higher rating for the right knee status post ACL tear for the appeal period prior to July 29, 2005, and that period of time will not be addressed in this decision. Moreover, following the December 2015 remand, the AOJ awarded a separate 10 percent rating for loss of right knee extension, effective April 28, 2016. In an April 2020 rating decision, the rating for loss of right knee extension was increased to 20 percent effective April 28, 2016. Additionally, the Board notes that the Veteran was awarded a temporary total (100 percent) rating for his status post right knee ACL tear pursuant to 38 C.F.R. § 4.30 for the period from March 11, 2009, to June 30, 2010, based on a period of convalescence following a surgical procedure on his right knee. Based on the foregoing, the Board finds that ratings in excess of 20 percent are not warranted for either right knee disability. The Veteran has been awarded a 20 percent rating pursuant to Diagnostic 5257 which pertains to recurrent subluxation or lateral instability, neither of which is shown upon examinations. Although instability was reported by the Veteran and noted by the VA examiner in July 2010, joint stability testing was not conducted at that time and at all other examinations when joint stability testing was conducted, instability testing was normal. As such, a higher rating is not warranted for the right knee disability pursuant to Diagnostic Code 5257. 38 C.F.R. § 4.71a (2019). The Veteran has also been awarded a 20 percent rating for his right knee disability for limitation of extension since April 28, 2016, pursuant to Diagnostic Code 5261. 38 C.F.R. § 4.71a (2019). However, there is no evidence of record showing the Veteran to have limitation of extension to 20 degrees or more. In fact, the Veteran had extension limited to, at worst, 15 degrees. With regard to flexion, there is no evidence of record showing the Veteran to have flexion limited to 45 degrees or less at any time to allow for a separate compensable rating for limitation of flexion. In fact, flexion is limited to, at worst, 80 degrees. Diagnostic Code 5260. 38 C.F.R. § 4.71a (2019). In terms of functional loss, although the Veteran has reported right 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 20 percent for a right knee disability is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2019). Furthermore, the additional limitation that the Veteran experiences due to pain, weakness, fatigability, lack of endurance, or incoordination on repetition was accounted for by the VA examiners when determining the Veteran’s range of motion and was further considered by the Board. 38 C.F.R. § 4.40, 4.45 (2019). Thus, the preponderance of the evidence is against a finding that the Veteran had more limitation of motion in his right knee than that found at his VA examinations. With consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 20 percent for functional impairment of the right knee disability. Consideration has also been given to assigning separate ratings for the right knee based on cartilage dislocation or removal. Review of the record reveals that the Veteran underwent several surgical procedures on the right knee including a meniscectomy. However, there is no indication from the record that the Veteran has frequent episodes of locking, pain, and effusion into his right knee. Further, there is no indication that the Veteran has symptoms of the meniscus injury other than painful motion. The Board notes that the Veteran is already in receipt of a 20 percent rating for his right knee based on limited extension with painful motion, so using pain to support an additional rating for the right knee under another diagnostic code would be in violation of 38 C.F.R. § 4.14 (2019). Moreover, he is also in receipt of a separate 20 percent rating for recurrent subluxation or lateral instability, neither of which is shown on objective testing. As such, a separate rating is not warranted for a disability involving the meniscus at this time. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259 (2019). Consideration has also 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 ankylosis 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, 5262, 5263 (2019). The Veteran’s belief that he is entitled to higher ratings for his right knee disabilities 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 higher ratings. Accordingly, the Board finds that a preponderance of the evidence is against the claims and entitlement to ratings in excess of 20 percent for right knee ACL tear and right knee limitation of extension for the relevant time periods on appeal are 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 claim for service connection for sinusitis can be reached. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran’s claim for sinusitis was remanded by the Board in July 2018 in order to obtain an examination and etiological opinion. The Veteran was afforded a VA examination in April 2019 at which time the examiner diagnosed chronic sinusitis and allergic rhinitis. The examiner opined that the Veteran’s chronic sinusitis and allergic rhinitis were less likely than not incurred in or caused by an in-service event, illness, or injury. The examiner’s rationale was that the she was unable to find any reference to sinusitis or allergic rhinitis while the Veteran was in service. The examiner failed to consider the significance of an assessment of possible seasonal allergic rhinitis during service in April 1987 and the Veteran’s lay statements and testimony regarding his sinus symptoms during service and since that time. As such, the Board finds the VA opinion to be inadequate for adjudication purposes. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. Therefore, another opinion should be obtained to determine whether the Veteran’s current chronic sinusitis and allergic rhinitis are etiologically related to service. The matters are REMANDED for the following action: 1. Return the Veteran’s claims file to the examiner who conducted the April 2019 VA examination or to an examiner with similar expertise and obtain an addendum opinion. The examiner must review the record, and the report should reflect consideration of the Veteran’s documented medical history and assertions. For the diagnosed sinusitis and rhinitis, the examiner should provide an opinion as to whether it is at least as likely as not 50 percent or greater probability) that the disability had its onset during, or is otherwise medically related to service. In addressing the above, the examiner must consider and discuss all medical and other objective evidence of record, as well as all lay assertions. The examiner should specifically comment on the medical significance, if any, of the facts that an assessment of possible seasonal allergic rhinitis was entertained during service in April 1987, and that the Veteran has been prescribed Fluticasone for many years (initially for “sinus,” and later for “nasal allergy”), beginning at least as early as January 2005. A complete rationale for all conclusions reached must be provided. Another VA examination of the Veteran should only be conducted if deemed necessary by the examine providing the requested medical opinions. 2. Then, readjudicate the remaining claim 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.