Citation Nr: 21022422 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-05 158 DATE: April 15, 2021 ISSUES 1. Entitlement to service connection for a low back disability, to include as due to service-connected left knee disability is granted. 2. Entitlement to a disability rating in excess of 10 percent prior to September 16, 2020, for service-connected left knee degenerative arthritis (a left knee disability). 3. Entitlement to a disability rating in excess of 30 percent for service-connected total left knee replacement for the period from November 1, 2021. ORDER Entitlement to service connection for a low back disability, to include as due to service-connected left knee disability is granted. REMANDED Entitlement to a disability rating in excess of 10 percent prior to September 16, 2020, for service-connected left knee degenerative arthritis (a left knee disability) is remanded. Entitlement to a disability rating in excess of 30 percent for service-connected total left knee replacement for the period from November 1, 2021 is remanded. FINDINGS OF FACT Resolving all doubt in his favor, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s low back disability is related to his service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1974 to June 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2010 and May 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, a rating decision from October 2010 granted the Veteran entitlement to service connection for left knee injury aggravation with a noncompensable disability rating, effective April 22, 2010. That same rating decision denied entitlement to service connection for sleep apnea and a low back injury. The Veteran filed a timely Notice of Disagreement (NOD) in June 2011. Following that, a rating decision from May 2013 denied entitlement to service connection for post-traumatic stress disorder (PTSD), but also granted a separate disability rating for instability of the left knee, with a 20 percent disability rating, effective July 28, 2011. The Veteran filed a timely NOD to that rating decision in June 2013, as it relates to the denial of entitlement to service connection for PTSD. Importantly, he did not disagree with the separate 20 percent disability rating for instability of the left knee. The Veteran was issued a statement of the case (SOC) for each of the issues he disagreed with and filed timely VA Form 9s in February and June 2014. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in January 2019 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. The Veteran’s claims were merged into a single appeal stream and certified to the Board. In May 2019, the Board remanded the claims for entitlement to service connection for the low back disability, sleep apnea, and PTSD, as well as entitlement to a disability rating in excess of 10 percent for the service-connected left knee disability. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Following the Board remand, a rating decision from October 2019 granted the Veteran entitlement to service connection for PTSD with a 30 percent disability rating, effective June 15, 2011. A subsequent rating decision from September 2020 granted entitlement to service connection for sleep apnea at a 50 percent disability rating, effective May 10, 2010. As service connection has been granted for both of those disabilities, they are no longer before the Board. The Veteran’s claim for entitlement to service connection for the low back disability has continued to be denied, and as such is still on appeal before the Board. Finally, as it relates to the service-connected left knee disability, following the Board remand in May 2019, a rating decision from August 2020 proposed to decrease the Veteran’s separate rating of instability to the left knee from 20 percent to 10 percent. This rating reduction was to be effective January 1, 2021. Prior to that reduction taking place however, the Veteran underwent a total left knee replacement surgery on September 16, 2020. Thus, in a rating decision from December 2020, the Veteran’s previous 10 percent left knee degenerative arthritis rating, in addition to the 20 percent rating for left knee instability, which had not yet been reduced, were merged into a 100 percent disability rating for total left knee replacement, effective September 16, 2020. The Veteran was given 13 months of the total convalescence rating following his surgery, and his disability rating is to return to 30 percent on November 1, 2021. The Board notes that the grant of increased ratings during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. Entitlement to service connection for a low back disability, to include as due to service-connected left knee disability. The Veteran is claiming that his low back disability is due to his active duty service, or alternatively, that his low back disability is secondary to his service-connected left knee disability. Importantly, the Veteran is currently service connected for degenerative arthritis of the left knee. See June 2011 NOD. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § 3.303(a). To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown 7 Vet. App. 439 (1995). 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Turning to the evidence for the Veteran’s claim for service connection for a low back disability, the Veteran does have a current diagnosis. The Veteran was given a VA examination in January 2014. The VA examiner conducted an in-person examination and had access to the Veteran’s claims file. During this examination, the examiner confirmed the Veteran’s diagnosis of a low back disability as lumbar degenerative joint disease and degenerative disc disease. Thus, the Veteran has met the first criteria for service connection, insofar as he has a current diagnosis. 38 C.F.R. § 3.303. The second criteria for service connection is an in-service injury or illness. To begin, the Veteran’s service treatment records are negative for any complaints or treatment for a low-back disability. Furthermore, the Veteran’s Service Treatment Records (STRs) upon release from active duty are negative for spine or other musculoskeletal issues related to the back. As noted however, the Veteran testified before the undersigned Veterans Law Judge in January 2019. The Veteran testified that, while the back pain did occur in the military, he chose not to report it. The Veteran stated this was “because I was concerned that I would be discharged medically and … I wanted to go ahead and get the GI bill, so I could go to school … I was concerned that maybe I would be discharged if I made any claims.” The Veteran further testified that the nature of his military occupational specialty (MOS) as an aircraft mechanic, involved a lot of “climbing, jumping, lifting, falling, getting underneath aircraft … [where conditions were] kind of harsh.” At times when lifting he “would feel a pull [in his] back.” He testified as to having to work in cramped conditions that put strain on his back, and that soon after discharge from the military his back would occasionally give out “sometimes … where I couldn’t even walk … I had to crawl.” The Veteran is competent as a layperson to report as to his low back pain, both during service and after service. See 38 C.F.R. § 3.159 (a)(2); Barr, 21 Vet. App. at 307-09; Layno, 6 Vet. App. at 469. As noted above, the Veteran is claiming that his low back disability is related to service either on a direct basis, or as secondary to his service-connected left knee disability. As was also noted, the Veteran was given a VA examination in January 2014. While the VA examiner provided a negative opinion as to the Veteran’s low back disability, that opinion only considered if the Veteran’s low back disability was secondary to his service-connected left knee disability. The examiner did not provide an opinion as to whether or not the Veteran’s low back disability is etiologically related to service on a direct basis. As a result, this claim was previously remanded in May 2019 for a VA examination to provide an etiological opinion as to whether or not the Veteran’s low back disability is at least as likely as not related to service. That examination occurred in August 2020. The Veteran was seen in person, and his claims file was reviewed. The examiner confirmed the Veteran’s disability of a low back disability and included a notation of the Veteran’s MOS of aircraft mechanic. The examiner opined that the Veteran’s low back disability weas at least as likely due to his active duty service. The examiner noted the Veteran’s lay statements and testimony, but also cited to “the physical and occupational demands required by service members,” by citing to medical literature. The examiner also noted that the Veteran not wanting to disclose injuries was typical, as they often are “motivated to minimize or conceal injuries to avoid perceptions of weakness or ineptitude.” As such a positive etiological opinion was provided. The Veteran’s claims file also includes a VA opinion from December 2020. The Veteran was not seen in person, although the examiner indicated that the claims file was reviewed. The examiner opined that the Veteran’s low back disability was less likely than not due to the Veteran’s active duty service. The rationale provided stated that: There is no evidence in the STRs that the Veteran had any type of lower back condition pre-existing military ser vice. STRs silent for any type of chronic lower back condition. Thus, a negative etiological opinion was provided. In consideration of the above, there is no evidence that either the August 2020 or December 2020 VA examiners were not competent or credible. Having said that, the August 2020 VA examination included an in-person review, a citing of the Veteran’s MOD and lay statements, and discussion of relevant medical literature, whereas the December 2020 report included none of those features. Thus, the Board affords the August 2020 examiner’s report significant probative weight, while the December 2020 report is afforded moderate probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran has met the final criteria for entitlement to service connection. The Veteran has a current diagnosis, which has claims is either due to his active duty service and/or due to his service-connected left knee disability. While the January 2014 VA examiner denied that the Veteran’s low back disability was due to his service-connected left knee disability, that report did not provide an opinion on direct service connection. As a result, the Veteran’s claim was remanded, and two opinions were provided. The positive VA opinion from August 2020 has been afforded significant probative weight, while the negative VA opinion from December 2020 has only been afforded moderate probative weight, for the reasons indicated above. Therefore, reading the evidence in a way most favorable to the Veteran, and resolving any reasonable doubt in favor of the Veteran, the Board finds the evidence is at least in relative equipoise as to whether the low back disability is related to the Veteran’s active duty service. As a result, the Veteran has satisfied the third criteria for entitlement to service connection. 38 C.F.R. § 4.3. Thus, the Veteran has met the criteria for entitlement to service connection for a low back disability. As such, affording the Veteran the benefit of the doubt, service connection for a low back disability is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND The Board incorporates its discussion from the sections above by reference. 1. Entitlement to a disability rating in excess of 10 percent prior to September 16, 2020, for service-connected left knee degenerative arthritis (a left knee disability) is remanded. The Veteran is claiming that his left knee disability is worse than is currently rated. As noted above, following the Board remand in May 2019, the Veteran underwent total left knee replacement surgery on September 16, 2020, and the Veteran is given a 100 percent disability rating for the period of convalescence for a period of 13 months. The Veteran’s service-connected total left knee replacement (left knee disability) is to resume a 30 percent disability rating from November 1, 2021. When the Veteran filed his notice of disagreement (NOD) in June 2011, the Veteran’s left knee degenerative arthritis was rated at 0 percent. In a rating decision from March 2018 however, it was increased to 10 percent, effective April 22, 2010, for painful motion of the knee and x-ray evidence of degenerative arthritis. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal however. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, as the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. As noted above, the Veteran testified in January 2019 before the undersigned Veterans Law Judge. The Veteran testified that the pain he experiences in his left knee increases the further he walks, after “about 200 yards and then it begins to ache too much where I have to go and sit down and rest a little bit and wait for it to go away.” He stated that he can no longer run, lift weights, and that he has difficulty flexing his knee backwards. He stated that his knee locks up, “where … I can’t bring it further back … I usually have to go and hold it out.” He is unable to stand for prolonged periods of time, and regularly wears a brace. He further testified as to swelling in his knee, similar to flare ups, and that he used to require fluid to be drained from his knee after too much swelling. He reports taking pain medicine for his left knee disability. The Veteran is competent to report that his left knee disability is worse than is currently rated. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). A recent Court decision also addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. As noted above, the Veteran’s claim was previously before the Board in May 2019. In that Board Decision, a December 2018 VA examination was found to be inadequate pursuant to Sharp. Specifically, the Veteran testified that he experiences swelling, and that examiners used to have to drain excess fluid from his knee, yet that was not documented. Furthermore, aside from a single sentence describing flare-ups during cold weather, flare-ups were not adequately described in the examination. Thus, the Veteran’s claim was remanded for a VA examination. That VA examination occurred in August 2020. The Veteran was seen in person, and his claims file was reviewed. The examiner noted the diagnoses of instability of the left knee, along with degenerative arthritis. The examiner noted the Veteran’s symptoms of constant sharp/dull left knee pain, “muscle pulling sensation, swelling, instability, buckles, [and] discomfort.” The examiner noted flare up, described as “sharp pain,” which occur daily and are of moderate severity. On range of motion (ROM) testing, the Veteran exhibited flexion to 115 degrees, and full extension. Pain was noted on the exam for both flexion and extension. Pain lowered the Veteran’s ROM for flexion to 100 degrees, but he maintained full extension. The exam was not conducted during a flare up, however the examiner noted that pain, weakness, fatigability and/or incoordination were not impacted during a flare up. Flare ups were not described in terms of an estimated loss of ROM, and no additional description was provided. Importantly, the Board is reminded that the Veteran’s claim was previously remanded for a VA exam that was compliant with Sharp. In consideration of the August 2020 VA examiner’s report, the Board finds that additional development is necessary. While the August 2020 examiner did elicit information on the severity, frequency, duration, or functional loss manifestations during flare-ups, they did not provide an estimate of motion loss in terms of degrees. They also did not indicate that such a determination could not be given, nor that an inability to furnish that estimate be predicated on either a lack of medical knowledge among the medical community at large, as opposed to insufficient knowledge by the individual examiner. See Sharp, Id. Therefore, the August 2020 VA examination does not currently contain enough information to provide an assessment as to the severity of the Veteran’s service-connected left knee disability for this period on appeal. Having said that, the Board recognizes that the Veteran is currently recovering from a total left knee surgery and is in receipt of a total disability rating, meaning that a full VA examination may not be feasible. As such, and considering that the August 2020 VA examiner was able to provide information regarding the severity, frequency, duration, and functional loss manifestations during flare-ups, the Board finds that a VA addendum opinion may be enough to cure the shortcomings of the August 2020 report. Therefore, the Board remands the matter for the RO to forward the Veteran’s claims file to the August 2020 VA examiner, or another suitable professional, to provide an addendum opinion which includes an estimation of ROM loss during a flare up, or a conclusion that an estimation cannot be given. Again, any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. See Sharp, Id. 2. Entitlement to a disability rating in excess of 30 percent for service-connected total left knee replacement for the period from November 1, 2021. The Board incorporates its discussion from the sections above by reference. As noted above, following the Board remand in May 2019, the Veteran underwent total left knee replacement surgery on September 16, 2020, and the Veteran is given a 100 percent disability rating for the period of convalescence for a period of 13 months. The Veteran’s service-connected total left knee replacement (left knee disability) is to resume a 30 percent disability rating from November 1, 2021. As that period of convalescence has not yet expired, the Board cannot make a fully informed decision on this matter because the issue is not ripe for adjudication. While a contemporaneous examination was obtained following the Board remand in August 2020, an additional examination will be necessary at the end of the temporary disability rating for the period of convalescence currently in effect. Thus, the Veteran’s claim should be remanded for a VA examination following the conclusion of the period of convalescence. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Following the completion of step 1, forward the Veteran’s claims file to the same examiner who conducted the August 2020 VA examination, or another suitable professional, to determine the severity of the Veteran’s service-connected degenerative arthritis of the left knee (left knee disability), for the period prior to September 16, 2020. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. The examiner is asked to provide information regarding the following: (a.) The examiner is to note a full and complete history of the Veteran’s symptoms, to include symptoms associated with any flare-ups. Provide an opinion as to additional functional loss during flare-ups of the musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The examiner is also requested to provide an estimate regarding the range of motion lost during a flare up. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare up, the examiner is directed to ascertain information as to the frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner is reminded that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. See Sharp, Id. 3. At the completion of the temporary total evaluation for the period of convalescence currently in effect through November 1, 2021, the RO should schedule the Veteran for a VA examination with an appropriate physician to determine the current severity of the Veteran’s service-connected total left knee replacement. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. The examiner should detail range of motion measurements, to include the degree at which he experiences pain, any additional impact caused by motion such as weakness and fatigability, incoordination, or swelling. The examiner is to specifically test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for the joint(s) in question and any paired joint(s). See Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The examiner is to note a full and complete history of the Veteran’s symptoms, to include symptoms associated with any flare-ups. Provide an opinion as to additional functional loss during flare-ups of the musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare up, the examiner is directed to ascertain information as to the frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 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. 4. After completing the development noted above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue an SSOC to the Veteran and his Representative. After the Veteran and his Representative has had an adequate opportunity to respond, return the appeal to the Board for appellate review. The appellant has the right to submit additional evidence on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, Associate 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.