Citation Nr: 21021921 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-18 724 DATE: April 14, 2021 ORDER Entitlement to service connection for a lumbar spine disability to include as secondary to service-connected disease or injury is denied. REMANDED Entitlement to a disability rating more than 10 percent for patellofemoral pain syndrome of the right knee is remanded. Entitlement to a disability rating more than 10 percent for patellofemoral pain syndrome of the left knee is remanded. Entitlement to a total disability based on unemployability (TDIU) due to service-connected disabilities prior to January 29, 2015 is remanded. FINDINGS OF FACT 1. A lumbar spine disability did not manifest in service and is not attributable to service; arthritis did not manifest within one year of separation from active service. 2. A lumbar spine disability is not caused or aggravated by service-connected disease or injury. CONCLUSIONS OF LAW 1. A lumbar spine disability was not incurred or aggravated during service, nor may arthritis be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. A lumbar spine disability is not proximately due to or the result of (causation or aggravation) a service connected disease or injury. 38 C.F.R. § 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1990 to February 1998. These matters come to the Board of Veterans’ Appeals (Board) from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board denied entitlement to disability ratings more than 10 percent for the Veteran’s service-connected patellofemoral pain syndrome of the right and left knees. The Veteran appealed the Board’s denial of these issues to the United States Court of Appeals for Veterans Claims (Court). In October 2020, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Partial Remand (JMPR). An Order of the Court dated October 2020 granted the motion, vacated in part the Board’s August 2019 decision, and remanded the case to the Board. In July 2020, the Board remanded the Veteran’s claims of entitlement to service connection for a lumbar spine disability and entitlement to TDIU. Thereafter, in a December 2020 rating decision, the Veteran was awarded TDIU effective January 29, 2015. However, as the award did not constitute a full grant of the benefits sought, the Veteran’s TDIU claim remains in appellate status. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The Veteran’s claims folder has been returned to the Board for further appellate proceedings. Service connection for a lumbar spine disability The Veteran contends that he has a lumbar spine disability that is related to service or is secondary to service-connected patellofemoral pain syndrome of the right and left knees to include alteration of gait due to the disabilities. See, e.g., an April 2019 VA examination report. He has not contended, nor does the evidence otherwise show, that the lumbar spine disability is secondary to his service-connected acquired psychiatric condition, migraine headaches, dyspepsia with history of gastroesophageal reflux disease (GERD), or right knee scars. Pertinent legal criteria Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). Direct and presumptive service connection The Board notes that an April 2019 VA examination documents a finding of degenerative arthritis of the spine. To the extent that the Veteran contends that his lumbar spine disability is related to service, the Board finds that the objective evidence outweighs this assertion. Crucially, the Veteran’s service treatment records indicate no suggestion of treatment for or complaints of symptoms related to a lumbar spine disability. Additionally, the Veteran’s January 1998 separation examination revealed normal findings as to the back and the Veteran denied any back symptomatology. Pertinently, the earliest indication of a lumbar spine disability is in August 2015 when the Veteran filed his claim for VA benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. This is more than 15 years after the Veteran’s discharge from service. The Board therefore finds that the Veteran’s history of a lumbar spine disability since service is outweighed by the objective evidence of record in light of the lack of any post service identification until 2015 as well as the available service treatment records which indicate normal findings with regard to the back. Therefore, to the extent that the Veteran contends that his lumbar spine disability manifested during service, this lay evidence is at odds with the remainder of the record, which reflects normal findings during service and his denial of pertinent pathology. As such, the Veteran’s statements are lacking probative value. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran’s testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. In short, there is no credible evidence of an in-service manifestation of a lumbar spine disability. In addition, there is no evidence of such pathology within one year of separation from active service. To the extent that the Veteran asserts that his lumbar spine disability is related to service, the Board finds that the Veteran’s statements regarding this disability being incurred in service is not credible given the objective evidence of record to include the service treatment records and the postservice medical records. The Board also notes that while the Veteran currently evidences degenerative arthritis of the spine, in as much as the service treatment records reveal normal findings, he did not have characteristic manifestations sufficient to identify the chronic disease entity during service or within one year of separation. 38 C.F.R. § 3.303(b). Secondary service connection As discussed above, the competent evidence establishes that the Veteran has degenerative arthritis of the spine. Additionally, the Veteran is currently service-connected for patellofemoral pain syndrome of the knees. Although the Veteran has also contended that his lumbar spine disability is secondary to bilateral plantar fasciitis, as he is not service connected for plantar fasciitis of either foot, service connection on this basis is not warranted. The Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran’s lumbar spine disability is due to or aggravated by his service-connected patellofemoral pain syndrome of the knees and service connection is therefore not warranted on a secondary basis. Specifically, the Veteran was provided a VA examination for his lumbar spine disability in April 2019. After examination of the Veteran and consideration of the Veteran’s medical history, the examiner diagnosed the Veteran with degenerative arthritis of the spine and concluded that the preponderance of the medical evidence does not support that one joint is the cause or direct and proximate cause of another joint or causes an aggravation of a joint. She further opined that the Veteran’s current lumbar spine disability is due to the natural progression of aging and genetics and less likely than not due to or caused by the bilateral knee patellofemoral pain syndrome. In a February 2020 addendum report, the examiner reiterated her opinion that the Veteran’s current lumbar spine disability is at least as likely as not due to genetics and aging and referenced medical literature in support of her finding. In an October 2020 report, another VA examiner concluded after review of the Veteran’s medical history to include the Veteran’s altered gait that it is less likely than not that the Veteran’s current lumbar spine disability is caused or aggravated by the bilateral knee patellofemoral pain syndrome. His rationale was similar to that of the prior VA examiner’s and he was indeed in agreement with the conclusion and rationale provided by that VA examiner. He further noted that while distal joint conditions may alter gait, it is directly due to the dysfunction of the distal joint itself. Further, any effect of the distal joint pathology on the spine is transient and has not conclusively been shown to permanently alter or worsen conditions of the spine. The April 2019 VA examination report with addendum as well as the October 2020 VA opinion report were based upon thorough consideration and analysis of the Veteran’s pertinent medical history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. The Veteran has not submitted a competent medical opinion to contradict the VA examiners’ opinion that his lumbar spine disability is not caused or aggravated by his service-connected bilateral knee patellofemoral pain syndrome. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C. § 5107(a) (2012) (it is the claimant’s responsibility to support a claim for VA benefits). The Board observes that the Veteran has indicated that he has a lumbar spine disability that is secondary to his service-connected bilateral knee patellofemoral pain syndrome. The Board notes that the Veteran is competent to report that he has been diagnosed with a lumbar spine disability. However, to the extent the Veteran proffers this information as a positive nexus between his lumbar spine disability and his service-connected bilateral knee patellofemoral pain syndrome, the Board finds that such an opinion is outweighed by the evidence of record, in particular the VA medical opinions discussed above which were based on thorough review of the Veteran’s pertinent medical history and medical condition and supported by adequate rationales. Therefore, this lay evidence is accorded little probative value. Lastly, we note that the right knee has been coded under Diagnostic Code 5010. This reflects a traumatic or localized process, rather than a generalized/systemic process. As such one provision of section 3.303 is not applicable. Specifically, we are not presented with subsequent manifestations of the same disease process. Here, the preponderance of the evidence is against the claim and there is no doubt to be resolved. Conclusion For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected disease or injury. The benefit sought on appeal is accordingly denied. REASONS FOR REMAND Higher evaluations for right and left knee patellofemoral pain syndrome and TDIU prior to January 29, 2015 With respect to the claims of entitlement to increased disability ratings for patellofemoral pain syndrome of the right and left knees, the Board initially notes that following the most recent adjudication of these claims, additional pertinent evidence, specifically an October 2020 VA knees examination, was associated with the claims file without a waiver Agency of Original Jurisdiction (AOJ) review. Under this circumstance, the Board will remand these matters for AOJ consideration of the additional evidence received in the first instance and issuance of a supplemental statement of the case reflecting any further action required and consideration of that evidence. See 38 C.F.R. §§ 19.31(a), 19.37(a). Additionally, as discussed above, the Veteran’s increased rating claims involve a JMPR dated October 2020. The parties to the JMPR agreed that the Board erred when it did not provide an adequate statement of reasons or bases for its finding that “meniscus pathology is not associated with the service-connected bilateral knee patellofemoral pain syndrome.” The parties further noted that VA knee examinations were not consistent in acknowledging, describing, and addressing any meniscal issues. In this regard, the parties noted a May 2019 VA examination report which indicated the Veteran did not have nor has ever had a meniscus (semilunar cartilage) condition and a March 2016 VA examination noting diagnosis associated with the claimed condition of right knee meniscal tear and bilateral patellofemoral pain syndrome. The parties further noted a January 2012 VA treatment record documenting diagnosis of “[c]omplex tear, positive middle third, lateral meniscus, right knee” as well as a May 2012 VA treatment record documenting an MRI positive for a meniscus tear and assessment of arthralgia due to torn meniscus. The parties also noted a December 2009 VA treatment record documenting an impression, based on MRI, of “[s]ymptomatic lateral meniscal tear right knee as well as a September 2015 VA treatment record noting physical examination positive meniscal signs with McMurray testing and an assessment of left knee internal derangement. As such, it was not clear that the Board had sufficient medical information to decide the Veteran’s increased rating claims. Therefore, remand was warranted. Although the Board notes that the Veteran was provided a VA examination for his knees in October 2020, the report only notes that the Veteran did not ever have a meniscus condition seems contrary to the evidence of record discussed above. In light of the foregoing, the Board finds that the Veteran should be provided another VA examination for his patellofemoral pain syndrome of his knees to determine the current severity of such and to include whether he has a meniscus condition associated with either knee. The Board notes that the claim of entitlement to TDIU prior to January 29, 2015 is inextricably intertwined with the increased rating claims remanded herein. In other words, development of the increased rating claims may impact the Veteran’s TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. The matters are REMANDED for the following action: 1. Schedule the Veteran for appropriate VA examination(s) to assess the orthopedic manifestations of the Veteran’s service-connected right and left knee patellofemoral syndrome. The claims folder must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Regarding the orthopedic manifestations, the examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology. The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the right and left knees. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also specifically identify whether the Veteran has a meniscus condition of either knee and if they do not identify such, then they should address prior medical findings indicating impairment of the meniscus. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 2. Review the claims file to ensure that all the foregoing requested development is completed and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his attorney with the requisite period of time to respond. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.