Citation Nr: 21024293 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 13-17 490 DATE: April 22, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease (DJD) is denied. Entitlement to an initial 10 percent rating, but no higher, left knee limitation of extension is granted from March 18, 2011. Entitlement to a separate initial 20 percent rating, but no higher, for left knee instability is granted from March 18, 2011. Entitlement to service connection for a back disability is denied. FINDINGS OF FACT 1. The Veteran’s left knee DJD has been manifested by painful flexion and extension but noncompensable limitation of motion and no more than moderate instability throughout the appeal period. 2. The Veteran’s back disability did not have its onset in service and is not otherwise related to service or a service-connected disability; degenerative arthritis did not manifest to a compensable degree within one year of separation from service nor is continuity of symptomatology established. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for left knee DJD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for entitlement to an initial 10 percent rating, but no higher, for left knee limitation of extension are met from March 18, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DCs 5003-5261. 3. The criteria for entitlement to a separate initial 20 percent rating, but no higher, for left knee instability are met from March 18, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5257 (as in effect prior to February 7, 2021). 4. The criteria for entitlement to service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1965 to November 1966. He died in September 2017. The appellant is his surviving spouse and has been substituted as the claimant for the purposes of processing the claims to completion. 38 U.S.C. § 5121A. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2015, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). The Board remanded the appeal for further development in December 2015. In March 2017, the Board notified the Veteran that the VLJ who conducted the September 2015 hearing was no longer at the Board and inquired whether he desired a new Board hearing in conjunction with his appeal. The Veteran declined to appear at another Board hearing in April 2017. In November 2019, the Board remanded the appeal for further development. Notably, during the pendency of this appeal, an August 2020 rating decision awarded service connection for a right knee disability. This issue is accordingly not in appellate status. 1. Entitlement to an initial rating in excess of 10 percent for left knee DJD is denied. 2. Entitlement to an initial 10 percent rating, but no higher, left knee limitation of extension is granted from March 18, 2011. 3. Entitlement to a separate initial 20 percent rating, but no higher, for left knee instability is granted from March 18, 2011. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Thus, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. By way of background, a December 2011 rating decision awarded service connection for left knee DJD and assigned a 10 percent rating under DC 5260, effective March 18, 2011. An August 2020 rating decision awarded service connection for left knee limitation of extension and assigned a noncompensable rating under DC 5261, effective March 18, 2011. The appeal period before the Board is from the effective date of service connection, or March 18, 2011. As a preliminary matter, the Board notes that the October 2011 and December 2013 VA examination reports are not compliant with the requirements set forth by Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), and are therefore inadequate for rating purposes. Nonetheless, as the Veteran is deceased, there is no way to posthumously afford the Veteran a new examination and the Board finds that the prior non-compliant examinations to be adequate for the limited purpose of this appeal. However, the Board notes that a VA opinion estimating the Veteran’s left knee functional impairment during a flare-up was obtained in December 2019. The Veteran’s left knee DJD is rated pursuant to DC 5260. Under DC 5260, a 10 percent rating is assigned for flexion limited to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, and a maximum 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. The Veteran’s left knee limitation of extension is rated pursuant to DCs 5003-5261. DC 5003 directs VA to rate the disability on the basis of limitation of motion pursuant to an appropriate diagnostic code for the specific joint involved. DC 5261 provides ratings for limitation of extension of the leg. A noncompensable rating is assigned for extension limited to 5 degrees, a 10 percent rating is assigned for extension limited to 10 degrees, a 20 percent rating is assigned for extension limited to 15 degrees, with higher ratings available for more severe limitation. 38 C.F.R. § 4.71a, DC 5261. The Board notes that the rating criteria for DCs 5003, 5260, and 5261, as relevant here, were not affected by the February 7, 2021 amendments. On VA examination in October 2011, the Veteran denied using his left knee other than to stand and transfer to and from his wheelchair, but reported pain with transferring. No flare-ups were reported. Left knee range of motion was from zero to 115 degrees, with no pain and no additional loss of motion upon repetition. The examiner noted less movement than normal, as well as tenderness and pain to palpation of the knee. Muscle strength and joint stability testing were normal and there was no evidence of recurrent subluxation/dislocation. At the December 2013 VA examination, the Veteran reported worsening left knee pain, additional pain with activity, as well as flare-ups with standing and transferring accompanied by increased pain. Left knee range of motion was from 5 to 95 degrees, with pain on flexion beginning at 90 degrees, but without additional loss of motion upon repetition. The examiner noted additional contributing factors of the left knee included less movement than normal, weakened movement, and pain on movement. Muscle strength and joint stability testing were normal and there was no evidence of recurrent subluxation/dislocation, but tenderness and pain to palpation knee was noted. The examiner noted that the Veteran no longer had the ability to stand straight on the knees from lack of extension due to degenerative changes. The examiner also indicated that moderate loss of overall strength, coordination, and fatigue would be expected after repetitive use over time and during a flare-up but without additional loss of range of motion. In a December 2019 VA opinion, the examiner indicated that pain would additionally limit left knee range of motion after repetitive use over time and during a flare-up, noting flexion would be from 5 to 85 degrees and extension would be from 85 to 5 degrees, both due to pain. The Board finds that, when considering DeLuca factors, the Veteran’s left knee disability has been productive of painful flexion and extension throughout the appeal period, but noncompensable limitation of motion, thereby precluding a rating in excess of 10 percent under DC 5260. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202; VAOPGCPREC 9-2004. However, the Board finds that a 10 percent rating, but no higher, is warranted for painful extension under DC 5261, effective March 18, 2011. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (holding that painful motion of a major joint or group of minor joints caused by degenerative arthritis is deemed to be limited motion such that a minimum compensable rating is warranted under 5003 even though there is no actual limitation of motion). Moreover, the Board finds that a separate 20 percent rating is warranted under former DC 5257 throughout the appeal period, effective March 18, 2011. As the old rating criteria for DC 5257 is more favorable to the Veteran and there is no evidence dated past the effective date of the new regulations, only that version will be considered herein. DC 5257 evaluates recurrent subluxation or lateral instability of a knee, and provides a 10 percent rating for slight impairment, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, DC 5257. In this regard, the record shows that the Veteran required constant use of a wheelchair due to his knee and back disabilities. See October 2011 and December 2013 VA examination reports. While objective knee joint stability testing was normal, based on evidence demonstrating that the Veteran required constant use of a wheelchair for ambulation throughout the appeal period, the Board finds that the record supports a finding of moderate instability of the left knee so as to warrant a 20 percent rating under former DC 5257 from March 18, 2011. A higher rating is not warranted, as the Board finds that a “severe” instability rating would necessitate objective evidence of instability on physical examination or require the use of a wheelchair solely as a result of the Veteran’s left knee disability. Here, there is no objective evidence of knee joint instability shown and the Veteran’s nonservice-connected back disability also necessitates use of a wheelchair, and thus his knee instability does not more closely approximate severe instability under DC 5257. Additionally, the Board has considered whether higher or separate ratings are warranted under alternate diagnostic codes. However, there is no indication of ankylosis, removal of semilunar cartilage, tibia and fibula impairment, or genu recurvatum at any point during the period on appeal. See October 2011 and December 2013 VA examination reports. As such, ratings under DCs 5256, 5259, 5262, and 5263 are precluded. The Board acknowledges that the December 2013 VA examination report indicates a total left knee replacement was performed more than 10 years ago. While the record shows the Veteran underwent left knee arthroscopic surgery, there is no evidence of a total knee replacement and the Veteran does not assert otherwise. Indeed, he testified that he never had a knee replacement. See September 2015 Board Hearing Transcript (Tr.) at 6. Accordingly, a rating under DC 5055 for a knee replacement is not warranted. Finally, the Board has also considered whether a separate compensable rating is warranted for the Veteran’s left knee scar. However, the October 2011 and December 2013 VA examination reports note that the scar was not painful or unstable and not greater than 39 square centimeters (6 square inches), which does not allow for a separate compensable rating under the rating criteria for scars. See 38 C.F.R. § 4.118, DCs 7800-7805. 4. Entitlement to service connection for a back disability is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic disabilities, including arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the evidence of a current back disability is not in dispute, as the Veteran was diagnosed with lumbar spinal stenosis and degenerative arthritis of the spine before his death. See October 2011 and July 2016 VA examination reports. Additionally, he was service-connected for a left knee disability. Therefore, the first element of direct service connection is established, as well as the first two elements of secondary service connection. Turning to the second element of direct service connection, in-service incurrence of a disease or injury, the Veteran’s service treatment records do not identify any complaints, treatment for, or diagnosis of a back disability or symptoms indicative of the same. At service separation in October 1966, he specifically denied recurrent back pain but endorsed swollen or painful joints, and clinical evaluation of his spine was normal. However, the Veteran competently and credibly testified as to in-service back injury from a motor vehicle accident. Affording him the benefit of the doubt, element two of direct service connection is also met. Regarding the final element of direct and secondary service connection, nexus, the only competent opinions of record are against the claim. (In this regard, the October 2011 and July 2016 VA opinions against the claim on a direct basis are inadequate for rating purposes for lack of sufficient rationale.) Specifically, in December 2019, a VA examiner opined that it was less likely than not that the Veteran’s back disability was caused by or related to service. The examiner, who acknowledged consideration of the Veteran’s reported history of back pain in service, as well as his assertions of continued symptomology since, stated that it was not related to any specific trauma or incident in service. Instead, the examiner explained that the Veteran’s back disability was consistent with his work at Boeing and the natural aging process. In this regard, the Board notes that the record shows the Veteran worked as a machinist at Boeing and, prior to filing the instant claim, reported that his “work involved much physical labor and manipulation of heavy objects in awkward positions.” See January 2003 and August 2008 private treatment records. Moreover, and critically, the examiner highlighted the fact that the Veteran reported to him personally during his 2016 examination that his back pain started after service and denied treatment for 20 years after service separation. The examiner further explained that even if the Veteran experienced back pain and soreness after service, there was no indication of functional loss. (The Board notes that the Veteran himself testified that his back pain did not reach the level of a functional impairment of earning capacity. See Board Hearing Tr. at 9.) Thus, examiner concluded that the Veteran’s medical history was not consistent with a trauma as an etiological cause for his back disability. Regarding secondary nexus, in an August 2020 opinion, the examiner found that the Veteran’s back disability was not related to or aggravated by his service-connected left knee disability. In support of his opinion, the examiner explained that the Veteran’s back condition was found to be uniform without evidence of compensation to one side or another and noted that this was consistent with a physical labor’s activity without compensation from a specific knee. He also indicated that for the back to have a compensatory mechanism by one knee, the Veteran would have degenerative changes specific to one side of the back or development of muscles or atrophy of muscles specific to one side of the back. Therefore, the examiner concluded that since the Veteran had uniform back pain and range of motion that was independent and separate from his knee, there was no indication of compensation, and therefore his back disability was not secondary to his left knee. In a July 2016 opinion, the examiner also noted that because the Veteran’s back symptoms worsened regardless of knee pain, there was no indication of aggravation. Collectively, these opinions are highly probative, as the examiner considered the Veteran’s entire relevant medical history and provided a thorough rationale with supporting medical explanations. There is no competent opinion to the contrary. To the extent that the Veteran and his family members assert that his back disability is the result of service or a service-connected disability, the Board finds that while they are competent to report observed symptomatology such as pain, they are not competent to opine as to the etiology of a back condition, as such a determination is a complex medical question that is beyond the ken of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, as there is no evidence that the Veteran’s degenerative arthritis manifested to a compensable degree within a year of service, presumptive service connection for chronic disease is not established. Nor is there any competent and credible evidence of an in-service manifestation of arthritis to allow for service connection based on continuity of symptomatology. Accordingly, the preponderance of the evidence is against the claim of entitlement to service connection for a back disability. As such, the benefit of the doubt doctrine is not for application, and service connection must be denied. See 38 U.S.C. § 5107(b). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.