Citation Nr: 21023578 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 20-25 636 DATE: April 21, 2021 ORDER Entitlement to a rating greater than 10 percent for left knee arthritis is denied. Entitlement to an initial rating greater than 10 percent for left knee instability is denied. Entitlement to service connection for a lumbar spine disorder is granted. REMANDED Entitlement to service connection for a right knee disorder is remanded. FINDINGS OF FACT 1. The Veteran’s left knee arthritis is not manifested by flexion limited to 30 degrees or extension limited to 15 degrees; and the Veteran is not shown to have both compensable limitation of flexion and extension under the applicable diagnostic codes at any time during the appeal period. 2. The Veteran’s left knee disorder is not manifested by moderate recurrent subluxation or lateral instability. 3. The preponderance of the evidence supports finding that the Veteran’s current lumbar spine disorder is related to active service. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for left knee arthritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, Diagnostic Codes 5003, 5260, 5261. 2. The criteria for an initial rating greater than 10 percent for left knee instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 3. The criteria for service connection for a lumbar spine disorder have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1959 to September 1968. Additional medical evidence was added to the record following the November 2020 supplemental statement of the case. On review, it essentially duplicates information already of record and a remand for additional supplemental statement of the case would serve no useful purpose and is not required. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on “greater limitation of motion due to pain on use.” DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.” 38 C.F.R. § 4.40. Entitlement to increased ratings for left knee arthritis and instability In June 2018, VA continued a 10 percent rating for left knee arthritis pursuant to Diagnostic Codes 5010-5260 (based on painful motion), and assigned a separate 10 percent rating for left knee instability effective from May 7, 2018. The Veteran disagreed with the decision and perfected this appeal. He generally contends that the assigned ratings do not adequately reflect the severity of his disability. In November 2020, VA proposed to reduce the rating for left knee instability to noncompensable. The reduction has not yet been effectuated and is not for consideration herein. Traumatic arthritis, substantiated by x-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by x-ray findings will be rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of flexion of the leg is evaluated as follows: flexion limited to 15 degrees (30 percent); flexion limited to 30 degrees (20 percent); flexion limited to 45 degrees (10 percent); and flexion limited to 60 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of the leg is evaluated as follows: extension limited to 45 degrees (50 percent); extension limited to 30 degrees (40 percent); extension limited to 20 degrees (30 percent); extension limited to 15 degrees (20 percent); extension limited to 10 degrees (10 percent); and extension limited to 5 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5261. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on “greater limitation of motion due to pain on use.” DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.” See 38 C.F.R. § 4.40. On VA examination in June 2018, the Veteran reported that his left knee pain is getting worse and sometimes it pops and swells. His left knee sometimes gives way, but he has no locking. He uses a cane and wears a brace sometimes. He reported flares described as moderate in severity with prolonged standing, walking, and twisting movements. They occur 3-4 times a week and last 1 to 2 hours. The Veteran further stated that he can barely stand for 10-15 minutes and can only walk 25-30 yards before he has to sit down. He has to hold on to rails to climb stairs and does one step at a time. Range of motion of the left knee was from 0 degrees extension to 110 degrees flexion. There was pain with flexion and pain with weight bearing. There was pain on the medial side of the knee, mild swelling, and crepitus. The Veteran was able to perform repetitive use testing with no additional functional loss or range of motion. There was no evidence of pain on passive range of motion testing or when the joint was used in non-weight bearing. The examiner was unable to say without speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use or with flare-ups. Muscle strength testing was 5/5 on the left in both flexion and extension and there was no muscle atrophy. The examiner noted a history of recurrent effusion and the left knee looked slightly swollen. Joint stability testing showed normal anterior, posterior, and lateral instability; and 1+ medial instability. The Veteran did not have any meniscus conditions. X-rays were consistent with advanced osteoarthritis disease. There were probable loose bodies noted in the intercondylar notch and chronic ossification along the medial left femoral condyle consistent with an old medial collateral ligament injury. In support of his claim, the Veteran submitted a May 2019 disability benefits questionnaire completed by a private physician. At that time, the Veteran reported that his left knee “gives out” with frequent falls, and he constantly uses a cane. When the pain and stiffness are worse, he uses a walker and has difficulty getting out of a chair. On physical examination, range of motion of the left knee was from 10 degrees extension to 90 degrees flexion. The abnormal range of motion contributed to functional loss, namely impaired ambulation and difficulty with stairs and standing from a seated position. Range of motion remained the same on the left following repetitive use testing. There was localized tenderness or pain with palpation at the medial and lateral joint line, patellofemoral joint. Regarding whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups or with repetitive motion, the private physician stated it was not feasible to provide a range of motion estimate. There was crepitus on the left. Muscle strength testing was 4/5 on the left in flexion and extension. There was no muscle atrophy. Joint stability testing was performed but no instability was noted. The Veteran did not have any meniscus condition. The Veteran most recently underwent a VA knee examination in November 2020. He reported that his left knee pain is getting worse, but his knee had not given out in the past 6 months. He uses a walker and a cane around the house. His left knee swells at the end of the day. The pain is constant and the whole knee is painful. He has difficulty rising from sitting and hears popping sounds. He has had no success with knee injections. The Veteran denied flare-ups. Regarding functional loss, he reported impaired ability to walk normally and no running or jumping. He can only walk for short distances with use of a rollator walker. He is very unstable even with a walker. There was evidence of pain with weight bearing but no evidence of crepitus. Range of motion of the left knee was from 10 degrees extension to 110 degrees flexion. There was tenderness to palpation. The Veteran was able to perform repetitive-use testing with no additional loss of function or range of motion. The examiner stated that pain, weakness, fatigability, or incoordination did limit functional ability with repeated use but in terms of range of motion, the measurements remained the same (10 to 110 degrees). The listed factors did not significantly limit functional ability with flare-ups. Muscle strength was 4/5 in flexion and extension on the left. There was objective evidence of pain on passive range of motion testing but not when the joint was used in non-weight bearing. There was no muscle atrophy. There was a history of slight lateral instability on the left. Objective testing, however, was normal. The Veteran did not have a meniscus condition. VA records show continued complaints and treatment for the left knee. A January 2020 physical therapy evaluation showed left knee range of motion from 12 degrees extension to 115 degrees flexion. Initially, the Board notes that the June 2018 VA examiner and the May 2019 private examiner were unable to provide information in degrees as to any additional limitation of motion with repetitive use and during flare-ups. The most recent VA examination addressed this information as applicable and the collective evidence is considered adequate for rating purposes. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). On review, there is no evidence of flexion limited to 30 degrees or extension limited to 15 degrees and a rating greater than 10 percent is not warranted under either Diagnostic Code 5260 or 5261 at any time during the appeal period. Separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same joint if none of the symptomatology on which each rating is based is duplicative or overlapping. VAOPGCPREC 9-04; 69 Fed. Reg. 59990 (2004); 38 C.F.R. § 4.14. The May 2019 private examination and January 2020 VA examination both show extension limited to 10 degrees which corresponds with a 10 percent rating under Diagnostic Code 5261. Prior to May 2019, extension was shown to be full. A prerequisite for application of the referenced General Counsel (GC) opinion is that the limitation of motion in question be compensable under the applicable diagnostic code. 38 C.F.R. § 4.59 does not permit separate compensable evaluations for each painful joint motion. Assigning multiple compensable evaluations for pain with noncompensable limitation of motion would be pyramiding. 38 C.F.R. § 4.14. As of the May 2019 examination, the Veteran exhibited compensable limitation of extension under Diagnostic Code 5261 and the 10 percent rating currently assigned based on painful motion is better reflected under this diagnostic code. He did not have compensable limitation of flexion under Diagnostic Code 5260. Therefore, separate compensable ratings under both Diagnostic Codes 5260 and 5261 are not warranted. In making this determination, the Board has considered the Veteran’s complaints of pain and functional loss. He is competent to report this information; however, the Board does not find adequate pathology to support a higher rating based on functional impairment due to pain on motion or other factors. VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998). Recurrent subluxation or lateral instability of the knee warrants a 10 percent rating when slight, a 20 percent rating when moderate, and a 30 percent rating when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The June 2018 VA examination showed 1+ medial instability and the Veteran was assigned a separate 10 percent rating based on instability under Diagnostic Code 5257. Subsequent examinations, to include evidence submitted by the Veteran, does not indicate objective evidence of instability (anterior, posterior, medial and/or lateral). The Board acknowledges the Veteran’s reports that his knee gives out resulting in falls. VA records indicate he was provided a knee brace. A July 2019 VA neurology record, however, notes that his falls are “most likely related to sensory ataxia because of long-standing diabetic neuropathy perhaps corroborated by left knee instability and cervical spine stenosis, among others.” Objective medical evidence is not categorically more probative than lay evidence. English v. Wilkie, 30 Vet. App. 347 (2018). The overall evidence, however, does not meet or more nearly approximate moderate lateral instability at any time during the appeal period and a 20 percent rating is not warranted. The Board has considered the history of effusion and evidence of mild swelling noted on examination. There is no evidence of a meniscus (semilunar cartilage) condition and Diagnostic Codes 5258 and 5259 are not for application. Finally, the Board acknowledges that the diagnostic codes for the musculoskeletal system were changed effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76456, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). However, the new criteria are not relevant in this case because no medical evidence pertaining to the left knee has been received after the effective date. Therefore, the Board has applied the rating criteria that were in place prior to February 7, 2021. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may also be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310(a). Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b). Entitlement to service connection for a lumbar spine disorder In June 2018, VA denied service connection for a back condition. The Veteran disagreed with the decision and perfected this appeal. He contends that his current back problems are related to service and/or service-connected disability. VA treatment records document the Veteran’s report that he injured his back while moving 55-gallon drums during the Cuban missile crisis. He stated that he received treatment in Cuba but that the records were never transferred. He further reported that his low back pain has been getting worse since that time. Service treatment records are negative for complaints or findings related to the low back. On separation examination in September 1968, the Veteran’s spine was reported as normal on clinical evaluation. The June 2018 VA examination notes a diagnosis of degenerative disc disease of the lumbar spine. The examiner provided a negative opinion on secondary service connection specifically noting other risk factors to include age, obesity, and occupation – doing heavy physical jobs for many years prior to retirement. In support of his claim, the Veteran submitted a May 2019 opinion completed by a private physician. The report documents a history of low back pain beginning in 1963 or 1964 while in Cuba. He and another crew member were moving liquid filled 55-gallon drums to create space to park their aircraft when he experienced the sudden onset of low back pain. He reported he went to sick bay and was informed his records would be sent to the Norfolk Naval Air Station, but they were never forwarded. The examiner reviewed the record and opined that based on the Veteran’s history, his low back pain was more likely than not service-related based on the described injury. He further opined that it was less likely than not that the Veteran’s left knee condition caused or aggravated his back condition. As indicated, there is evidence of current lumbar spine disability. Regarding whether there was a disease or injury during service, the Board acknowledges that service treatment records are negative. The Veteran, however, is competent to report that he injured his back during service and that he continued to experience back pain. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a lay person is competent to report on that of which he or she has personal knowledge). Review of personnel records shows that the Veteran was an air crewman and mechanic and he was assigned to a patrol squadron out of Naval Air Station (NAS) Norfolk. His reported injury appears consistent with the circumstances of his service and thus, the Board finds credible evidence of in-service injury. As concerns nexus, the VA examiner did not provide an opinion concerning direct service connection. The private physician provided a positive etiology opinion. The opinion was based on records review and a reported history that is arguably consistent with the record. Thus, the opinion is considered probative. As the preponderance of the evidence supports finding that the Veteran’s current lumbar spine disorder is related to active service, service connection is warranted. Considering this, there is no need to further discuss secondary service connection. REASONS FOR REMAND Entitlement to service connection for a right knee disorder In June 2018, VA denied service connection for a right knee condition. The Veteran disagreed with the decision and perfected this appeal. He contends that his right knee is related to service-connected disability. The Veteran underwent a VA knee examination in June 2018. Diagnosis was right knee degenerative arthritis. The examiner opined that this condition was less likely than not proximately due to or the result of the service-connected left knee condition. In May 2019, the Veteran was evaluated by a private physician. The physician stated that there was no evidence of service-related right knee injury and the current symptoms were not felt to be the result of or consequential to either his low back pain or left knee injury. Other risk factors were considered, including normal aging process and previous work activity. On review, neither the VA nor the private examiner addressed secondary aggravation. Thus, an addendum opinion is needed. El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (A medical opinion which focuses solely on causation is inadequate to address whether a service-connected disability aggravated another condition. When causation and aggravation are at issue, the Board must ensure that the opinion addresses each.) An addendum opinion is needed. 38 C.F.R. § 3.159(c)(4). The matter is REMANDED for the following action: 1. Return the June 2018 VA medical opinion for an addendum. The examiner is requested to state whether the Veteran’s right knee disorder is at least as likely as not aggravated beyond its natural progression by service-connected disability (left knee and/or lumbar spine). A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), or by a deficiency in the record (additional facts are required) or the examiner (does not have the needed knowledge or training). LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Carsten, 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.