Citation Nr: 21025967 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-40 192 DATE: April 29, 2021 ORDER Entitlement to service connection for left ankle disability is granted. Entitlement to service connection for a back disability is granted. Entitlement to service connection for arthritis is dismissed. Entitlement to service connection for a chronic disability manifested by right leg pain other than the already service connected right knee disorders is denied. REMANDED Entitlement to a rating in excess of 10 percent for right knee instability under Diagnostic Code 5257 is remanded. Entitlement to a rating in excess of 10 percent for a right knee disorder diagnosed as Osgood Schlatter’s disease with osteoarthritis rated as lost flexion under Diagnostic Code 5010-5260 is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Left ankle and back disabilities had their onset on active duty. 2. An October 2020 rating decision granted service connection for osteoarthritis of the right knee as a progression of the Veteran’s service-connected Osgood Schlatter’s disease. 3. The preponderance of the evidence of record shows that the Veteran does not have a chronic disability manifested by right leg pain other than his already service-connected right knee disorders at any time during the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left ankle and back disabilities have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria to dismiss the claim of service connection for arthritis have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.101. 3. The criteria for entitlement to service connection for a chronic disability manifested by right leg pain other than the already service-connected right knee disorders have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1985 to December 1987. In June 2018 the Board of Veterans’ Appeals (Board), among other things, reopened the claim of service connection for a back disability and remanded the above claims as well as a claim of service connection for an acquired psychiatric disorder. In this regard, the post-Remand record shows that the regional office (RO) in an April 2020 rating decision granted service connection for an acquired psychiatric disorder. Therefore, the Board finds that this issue is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (held that the RO’s award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran’s notice of disagreement on such issue). The Board also finds that the record raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Post-Remand Compliance As to the post-remand development, the Board finds that it substantially complied with the Reman and the concerns raised by the Court it its’ decision. See 38 U.S.C. § 5103; Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order). The Board has reached this conclusion because while the appeal was in remand status all identified and available VA and private treatment records were obtained and associated with the record. Id. The Board has also reached this conclusion because the post-remand record shows that in December 2020 the RO obtained new opinions as the diagnoses and/or etiology of the Veteran’s left ankle disability, back disability, arthritis, and a chronic disability manifested by right leg pain other than the already service-connected right knee disorders based on all theories of entitlement, the post-service medical records, the appellant’s competent and credible lay claims regarding observable symptomatology, and controlling medical literature and the opinions are supported by medical reasoning. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board’s statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran’s position); Also see El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with new VA examination or to try to obtain additional medical record is not required. See 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). THE SERVICE CONNECTION CLAIMS Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b). See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a left ankle disability The Veteran contends that his left ankle disability is related to his active military service. Alternatively, he contends that his left ankle disability is proximately due to aggravated by his service-connected right knee disability. The Board concludes that the Veteran has a current disability that is related to the in-service basketball injury the Veteran experienced. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As to current disabilities, the record shows the Veteran being diagnosed with left ankle tendonitis and osteoarthritis. See, e.g., September 2019 VA examination. Next, the Board notes that the Veteran’s service medical records show he was seen for complaints of left ankle pain following a ligament sprain playing basketball. See, e.g., November 1986 service treatment record. Thus, the question before the Board becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a September 2019 VA examination. The examiner opined that it is less likely than not the Veteran’s left ankle tendonitis is related to military service. In reaching their rationale, the examiner noted that the records are negative for the report of recurrent pain involving the affected joint during military service, as the claimant was diagnosed with a left ankle ligament sprain in 1986. Furthermore, there were no documented follow-up visits indicative that the condition was not completely resolved or had further complications. The Veteran also denied having pain on the affected joint upon separation from service. The evidence in favor of the claim includes an October 2012 disability benefits questionnaire provided by the Veteran. In the completed questionnaire, the private examiner opined that the Veteran’s chronic left ankle disability is more likely than not related to service. In reaching their rationale, the private examiner noted that the type of injury the Veteran experienced while playing basketball (full weight bearing twist) generally remains a chronic condition due to tendon and ligament damage that does not heal normally. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current left ankle disability is related to service. See Owens, supra. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that the Veteran’s current left ankle disability is related to service and service connection for a left ankle disability is warranted. 38 U.S.C. §§ 5107, 1131; 38 C.F.R. §§ 3.102, 3.303; Gilbert, supra. 2. Entitlement to service connection for a back disability The Veteran contends his back disability is related to his active military service, to include back pain and muscle spasms experienced while in service. As to current disabilities, the record shows the Veteran being diagnosed with degenerative arthritis of the spine. See, e.g., September 2019 VA examination. Next, the Board notes that the Veteran’s service medical records show he was seen for complaints of upper back pain and muscle spasms. See, e.g., April 1985 service treatment record. Thus, the question before the Board becomes whether the current disability is related to service. On this question there are once again probative opinions in favor of and against the claim. The evidence against the claim includes a September 2013 VA medical opinion. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. There was no evidence to support the claimant experienced back pain which was chronic or recurrent in nature and the claimant denied experiencing any recurrent back pain upon exit examination. Again, in September 2019, a VA examiner provided the exact same etiology opinion. The evidence in favor of the claim includes an October 2012 disability benefits questionnaire provided by the Veteran regarding his back disability. The private examiner opined that the Veteran’s back disability is related to active service, as injuries to the thoracic spine are serious and long lasting. Private treatment records note that the Veteran has chronic, constant, worsening low back pain, spasms, stiffness, tenderness, decreased range of motion, intermittent exacerbations, and pain that increased with activity or movement. See August 2019 Cherokee Imaging Center Note. The private physician opined that these symptoms began in the military. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current back disability is related to service. See Owens, supra. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that the Veteran’s current back disability is related to service and service connection for a bac disability is warranted. 38 U.S.C. §§ 5107, 1131; 38 C.F.R. §§ 3.102, 3.303; Gilbert, supra. 3. Entitlement to service connection for arthritis As to the claim of service connection for arthritis, in an October 2020 rating decision the RO granted service connection for osteoarthritis as a progression of the Veteran’s Osgood Schlatter’s disease in the right knee. In this regard, controlling laws and regulations provide that the Board has jurisdiction over an appeal but only where there is a question of law or fact on appeal to the Secretary. See 38 U.S.C. § 7104; 38 C.F.R. § 20.101. Moreover, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 38 U.S.C. § 7105(d)(5). Therefore, because the RO already granted service connection for this disability in the October 2020 rating decision, the Board finds that the claim of service connection for arthritis is dismissed because there remains no issue in controversy. Id; Also see Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (held that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue). 4. Entitlement to service connection for a chronic disability manifested by right leg pain other than the already service-connected right knee disorders The Veteran contends he has a chronic disability manifested by right leg pain other than the already service-connected right knee disorders due to his military service. Moreover, the Board notes that the in-service and post-service medical records document the Veteran’s complaints and/or treatment for right leg pain. However, the Board finds that the most probative evidence of record shows that the Veteran has not been diagnosed with a chronic disability manifested by right leg pain other than the already service-connected right knee disorders due to his military service at any time during the appeal. See Owens, supra. The Board has reached this conclusion because service and post-service treatment records are uniform in attributing this pain to his already service-connected right knee disorders. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Board has also reached this conclusion because it finds that the most competent and credible as well as the most probative evidence of record is the September 2019 VA examination at which time it was opined that there is no separate right “leg” diagnosis determined on examination. The Board has reached this conclusion because the VA examination was held for the express purpose of obtaining a diagnosis and their opinion was provided after a review of the record on appeal, an examination of the Veteran, supported by citation to evidence found in the record, and not contradicted by any other medical evidence of record. See Owens, supra; Colvin, supra; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). Further, while the Veteran is competent to report on the symptoms he observes, the Board finds that he is not competent to diagnose a chronic disability manifested by right leg pain other than the already service-connected right knee disorders because diagnosing it requires special medical training that he does not have and therefore he cannot provide the missing diagnosis. See Davidson, supra. The Board also finds that the facts of this appeal are distinguishable from those in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) because the findings by the September 2019 VA examiner shows that the claimed disability does not result in functional impairment that affects earning capacity other than what VA already compensates him for due to his service-connected right knee disorders. See Owens, supra; also see Wait v. Wilkie, No. 18-4349 (August 26, 2020). Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have a diagnosis a chronic disability manifested by right leg pain other than the already service-connected right knee disorders at any time during the pendency of the appeal and this claim is denied. 38 U.S.C. §§ 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for right knee instability under Diagnostic Code 5257 and a rating in excess of 10 percent for a right knee lost flexion under Diagnostic Code 5010-5260 are remanded. Since the Board last Remanded the appeal in June 2018, VA amended some of its’ criteria for rating musculoskeletal disabilities, including how this Veteran’s knee disabilities are rated under 38 C.F.R. § 4.71a, effective February 7, 2012. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5257); Also see 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). (Parenthetically, the Board notes that while the Veteran’s Osgood Schlatter’s disease with osteoarthritis was previously rated as lost flexion under Diagnostic Code 5010-5260, osteoarthritis would be considered under as degenerative arthritis under the new rating criteria and therefore be rated under Diagnostic Code 5003-5260. Id.) Given these changes in the Diagnostic Code, the Board finds that another remand is required to provide the Veteran with a new VA examination that considers this new rating criteria, for the regional office (RO) to adjudicate the claims considering the new rating criteria, and to provide the Veteran with notice of the new rating criteria. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 19.31; Bernard v. Brown, 4 Vet. App. 384, 393 (1993) (holding that when the Board addresses in its decision a question that has not yet been addressed by the RO, it must consider whether the veteran has been given adequate notice of the need to submit evidence or argument on the question, whether he has been given an adequate opportunity to actually submit such evidence and argument, and whether the statement of the case provided the veteran fulfills the regulatory requirements); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA’s duty to assist includes conducting a thorough and contemporaneous examination of the veteran that considers the records of prior examinations and treatment). In this regard, when again rating the Veteran’s disability the RO should be mindful of the fact that it may only apply the new rating criteria for the knee from the effective date of the change in the Diagnostic Code-February 7, 2012. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). While the appeal is in Remand status any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). Entitlement to a TDIU is remanded. As noted above, the record raises a claim for a TDIU. See Rice, supra. However, the Board finds that this issue is not ready for appellate review because it is inextricably intertwined with the above remanded rating claims (see Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)) as well as because from the existing record the Board is not able to ascertain when, if ever, they prevented him from obtain and maintaining substantial gainful employment. See 38 C.F.R. § 4.16, Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). Therefore, the Board finds that a remand is required to obtain from the Veteran a fully executed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, so the Board has the needed information to adjudicate whether his service-connected disabilities prevent him from obtain and maintaining substantial gainful employment given his prior vocational history, work experience, and education. See 38 U.S.C. § 5103A(b). These issues are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records (if any). 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records (if any). If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). This would include any recent VA treatment. Any help with the above would be appreciated. 3. Obtain and associate with the claims file a fully executed VA Form 21-8940. In this regard, the request should include a request for the Veteran to provide a detailed statement as to his employment history since service along with his duties at those places of employment, whether he continues to be unemployed, the approximate date he stopped working full and part time, and how his service-connected disabilities prevents him from obtaining and maintaining substantial gainful employment in both fields that are sedentary and physically demanding. Any help from the Veteran in obtaining this information would be appreciated. The form cited above is available on-line. The request should also notify the Veteran that his claim for a TDIU can be denied if he fails to cooperate with the prosecution of the claim by providing at the VA Form 21-8940. 4. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his right knee disorders. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: (a) The examiner should identify all right knee pathology found to be present. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing based on the evidence of record. (c) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) The examiner should also state whether the examination is taking place during a period of flare-up. If it is, the examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing during the flare-up. If it is not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited right knee forward flexion and backward extension caused by functional loss during a flare-up and after repeated use over time. If the examiner cannot provide the range of motion estimate during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (e) The examiner should also state the nature, extent, and severity of any right knee instability to include as defined by new Diagnostic Code 5257. In this regard, the examiner should be advised that Diagnostic Code 5257 was amended to remove the language of “severe,” “moderate,” and “slight” when describing impairment of the knee for recurrent subluxation or lateral instability. A separate rating for patellar instability was also added. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Under new Diagnostic Code 5257 and recurrent subluxation or lateral instability, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions 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 (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. After undertaking the above development, the RO should issue the Veteran a supplemental statement of the case (SSOC) that, among other things, adjudicates and provides the appellant with notice of the new musculoskeletal Diagnostic Codes for rating the knee. See 85 Fed Reg 76453; 85 Fed Reg 85523; 86 Fed Reg 8142. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.