Citation Nr: 21026610 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-14 267 DATE: May 3, 2021 ORDER Entitlement to a rating higher than 40 percent rating for left knee traumatic below-joint amputation (left lower extremity amputation), to include on an extraschedular consideration, is denied. Entitlement to service connection for right knee osteoarthritis (right knee disability), as secondary to service-connected left lower extremity amputation is granted. Entitlement to service connection for low back pain (low back disability), as secondary to left lower extremity amputation, is granted. Entitlement to service connection for bilateral hip pain (bilateral hip disability), is secondary to service-connected left lower extremity amputation, is granted. Entitlement to service connection for a neck condition (neck disability), to include as secondary to service-connected right shoulder AC joint separation, is granted. REMANDED Entitlement to a total rating based individual unemployability is remanded. FINDINGS OF FACT 1. The Veteran's left lower extremity amputation has not been manifested by an amputation not improved by prosthesis controlled by natural knee action. 2. The Veteran's service-connected left lower extremity amputation does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 3. The evidence is in relative equipoise as to whether the Veteran's low back, right knee, neck and bilateral hips disabilities are caused by his service-connected left lower extremity amputation and right shoulder AC joint disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for a left lower extremity amputation, including on an extraschedular basis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, 38 C.F.R. § 3.321 Diagnostic Code (DC) 5165. 2. The criteria for service connection for a right knee disability as secondary to the Veteran's service-connected left lower extremity amputation are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a low back disability as secondary to the Veteran's service-connected left lower extremity amputation are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for a bilateral hip disability as secondary to the Veteran's service-connected left lower extremity amputation are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for a neck disability as secondary to the Veteran's service-connected right shoulder AC joint separation are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 through March 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from May 2014 and August 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. Entitlement to a rating higher than 40 percent rating for left lower extremity amputation, to include on an extraschedular consideration, is denied. The Veteran contends that a higher rating is warranted for his left knee amputation. The Veteran's left lower extremity amputation is currently rated as 40 percent disabling under Diagnostic Code 5165 for amputation at a lower level of the knee, permitting prosthesis. 38 C.F.R. § 4.71a, DC 5165. Under DC 5165, amputation of the leg at a lower level permitting a prosthesis will be rated as 40 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5165. Amputation of the leg not improvable by prosthesis controlled by natural knee action will be rated as 60 percent disabling. Id. Turning to the evidence of record, treatment notes in September 2013 document a follow up for the Veteran's prosthesis. It was noted that the Veteran had been wearing an older prothesis from 2003 and having problems with the fit due to weight gain. The examiner documented that the Veteran was very active and ambulated without an assistive device. The Veteran also denied skin breakdown at the time. Upon examination, his left knee had full range of motion. The Veteran underwent a VA examination for his left lower extremity amputation in April 2014. Here, the Veteran reported phantom limb pain. He also endorsed that he did not walk much anymore and did not have much problems due to the lack of walking. Upon examination, it was found that his lower leg amputation site allowed for the use of a prosthetic. In February 2015, a second VA examination was afforded. The Veteran was again noted to have a below the knee amputation that was suitable for prosthesis. Recurrent infections, small open areas from friction, and bleeding was also noted at the stump site. In March 2016, treatment notes record the Veteran's report of a left stump lesion that sometimes bleeds. In April 2016, the Veteran submitted correspondence asserting that he wore the prosthesis for less than eight hours a week due to chronic pain. By February 2017, treatment notes reveal a minor adjustment to the Veteran's prosthesis. It was documented that he ambulated in bars and felt secure with no rotation. In July 2015, a VA examination documented the Veteran's report of decreased sensation over the scar tissue of the stump. He also endorsed a "hot ice pick" sensation over where his left foot and ankle would be when wearing the prosthesis. Lastly, he endorsed shooting pain and muscle twitches in his left leg. Again, the examiner found that the Veteran's amputation site was suitable for prosthetics. At the Veteran's February 2019 scar examination, he expressed that his scars on his stump became unstable only when he wore his prosthesis more than a couple of hours a day. Due to recurrent infections, he only wore his prosthesis a couple of times a week when he had to drive. A January 2019 VA examination revealed similar findings on examination. This time, the Veteran detailed that he had daily left knee pain that was more pronounced at night. Further, the examination noted no unstable scars. The Veteran reported use of prothesis for outside of his home activities. The Veteran had not sought medical care for his left knee since 2016. Treatment notes reveal that the Veteran's gait was steady and coordinated with his prosthesis in February 2019. In January 2021, treatment notes document that the Veteran was successfully wearing his prosthesis. Based on the aforementioned, the Board finds that the Veteran's left lower extremity amputation has not more nearly approximated amputation of the leg not improvable by prosthesis controlled by natural knee action as required for the next higher rating under Diagnostic Code 5165. In so finding, the Boards notes that the record has not demonstrated that the Veteran's left knee stump is not suitable for prosthesis. Medical evidence is in agreement that the Veteran's amputation site is suitable for prosthesis. Further, treatment notes document the Veteran's successful use of his prothesis with steady ambulation, normal gait, good balance, and full range of motion of the knee. As such, a rating in excess of 40 percent is denied, as the evidence does not demonstrate that that a higher rating is warranted. In the January 2019 Board remand, the Board referred the Veteran's claim for an increased rating to the Director of Compensation Service (Director) for consideration of an extraschedular evaluation based on the Veteran's reports of phantom limb pain, recurrent infections, bleeding, shooting "seizures" of pain, and muscle twitches in his left stump, which caused him to wear his prosthesis for short periods of time. In light of the Veteran's assertions, the Board found that the Veteran had raised a claim for extraschedular consideration under 38 C.F.R. § 3.321. The Board's remand instructed the RO to consider entitlement to an extraschedular rating in the first instance. The RO, with consideration of a memorandum from the Director, determined that extraschedular rating was not warranted. The claim has since returned to the Board. In Thun v. Peake, 22 Vet. App. 111, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321 (b) is a three-step inquiry. First, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. This first element is a threshold element and requires the Board to compare the severity and symptomatology of the claimant's service-connected disability with the rating schedule for that disability. Id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, the assigned schedular evaluation is adequate, and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating. Id. As addressed above, the Board found the Veteran's assertions for an increased rating reasonably raised a claim for increased disability ratings on an extraschedular basis. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Accordingly, the Board referred his claim to the Director of Compensation Service for a decision in the first instance. In a July 2020 memorandum, the Director determined a higher 60 percent was not warranted for amputation of the leg. The Director explained that the February 2018 VA scar examination found that the Veteran's scar condition was asymptomatic. Further, the Veteran's left lower extremity amputation did not demonstrate an unusual or exceptional disability patten disability pattern that would render application of the regular rating criteria impractical. Further, marked interference with employment or frequent periods of hospitalizations due to left knee amputation are not shown by cumulative evidence of record. There is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009); see also Wages v. McDonald, 27 Vet. App. 233, 239 (2015) ("[T]he Director's decision is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence". The Board conducts a de novo review of the Director's decision.). More recently, however, on March 14, 2019, the Court also issued Ray v. Wilkie, 31 Vet. App. 58 (2019), which in part addressed the effect of the Board's referral of a case for extraschedular consideration when the Board later reviews the Director's decision not to award an extraschedular disability rating. The Court held that the Board's determination to refer a case for extraschedular consideration is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies the claim after referral, the Board "must provide adequate reasons or bases for deviating from its earlier referral decision." After further review of the record and the consideration of newly submitted treatment notes, the Board agrees with the Director's assessment that the Veteran's left lower extremity amputation does not demonstrate such a disability picture that would render the provisions of the regular rating criteria impractical. Here, further development revealed that the Veteran has not sought care for his left knee since 2016 despite his complaints. He also denied recent falls. See March 2021 CAPRI notes. Further, although the Veteran asserts problems with recurrent scars and phantom left knee pain, treatment notes and medical records support that his amputation is still suitable for prosthesis and the Veteran is able to wear his prosthesis when necessary. The Board does not ignore that the Veteran expresses some limitations with the prolonged usage of his prosthesis at times. However, the Board emphasizes that the Veteran is also in receipt of separate ratings for his phantom left knee pains and scars. The preponderance of evidence is against finding that a rating higher than 40 percent for the Veteran's lower extremity amputation is warranted. In addition, for the above-mentioned reasons, extraschedular rating is also not warranted in this case. Service Connection Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, (2) an already service-connected disability, and (3) that the disability for which secondary service connection is sought was either (a) caused or (b) aggravated by the already service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Right Knee, Back, Bilateral Hip, and Neck Disabilities The Veteran contends that right knee, low back, and bilateral hip pain disabilities are related to service, to include as secondary to his service-connected left lower extremity amputation. As discussed below, the Board finds that secondary service connected is warranted. Thus, the discussion below will focus solely on a discussion of entitlement to secondary service connection. The record contains current low back, right knee, bilateral hip, and neck disabilities. July 2015 VA examination. The Veteran is also service connected for a lower left knee amputation. Thus, the first two elements for establishing service connection have been satisfied. The remaining question before the Board is whether the Veteran's right knee, low back, bilateral hip, and neck disabilities were caused or aggravated by his service-connected left lower extremity amputation/AC joint separation. Post-service treatment notes in May 1981 document treatment for the Veteran's complaint of pain in his right hip and knee status-post his lower left extremity amputation. In February 2015, the Veteran was afforded a VA examination for his back and neck disabilities. He reported that he had chronic back and neck pain since his injury in-service that progressed over time. The examiner ultimately opined that it was at least likely than not that that his low back disability was caused by his left lower extremity amputation. The examiner explained that the Veteran's low back disability had not been diagnosed prior to 2014. Further, the examiner found that it was at least as likely than not that the Veteran's neck disability was caused by his service-connected right shoulder AC joint separation. The examiner explained that the record supported a connection between his shoulder condition and the onset of neck pain and development of cervical degeneration. In July 2015, the VA obtained a medical opinion for his low back, bilateral hips, and right knee disabilities. The examiner opined that it was less likely than not that the Veteran's disabilities were caused by his left lower extremity disability. The examiner rationalized that the Veteran had lived a long and active live and more recently began to develop arthritic changes in various locations. These conditions would have developed over the Veteran's lifetime regardless of the left lower extremity amputation. In September 2015, treatment notes recorded a treating physician's assessment that the Veteran's right knee takes a lot of stress because of his left leg. The Veteran also submitted various medical articles supporting that a lower extremity amputation often results in secondary problems with osteoarthritis, back pain, and soft tissue injuries due to gait deviation. In June 2016, a treating physician opined, with greater than a 50 percent medical certainty, that the Veteran's lower left extremity amputation contributed to the development of right knee arthritis. In an undated correspondence, the Veteran's rheumatologist submitted arguments and citations to medical articles supporting lower leg amputations may result in back pain, knee osteoarthritis, and right hip disabilities. It was also documented that many Veteran lower leg amputees experienced similar impairments. In March and August 2019, a third medical opinion was obtained concerning the Veteran's right knee, bilateral hips, and low back disabilities. This time, the examiner opined that it was at least as likely than not that these disabilities were caused by his lower left extremity amputation. The examiner explained that the disorder began subsequent to the Veteran's service-connected left lower extremity disability and was the direct result of the antecedent condition. Further, medical evidence supported such finding that the increased mechanical stress when walking with a prosthetic limb increases the susceptibility these disabilities. In December 2019, an examiner again offered a negative opinion for these disabilities. In March 2020, the examiner later opined that the conflicting opinions of record were likely due to the prior examiner's lack of recognition that the Veteran did not have a severe limp. A review of treatment notes of record does support that the Veteran does ambulate with a limp. Given the aforementioned, the Board finds that the evidence is at least in equipoise as to whether the right knee, back, bilateral hip, and neck disabilities are proximately due to the Veteran's service-connected left lower extremity amputation and AC joint separation. Resolving all doubt in the Veteran's favor, service connection is granted. REASONS FOR REMAND Based on the favorable actions noted above, the Board finds that adjudication of his claim for TDIU should be deferred until the RO implements the grants of service connection for the various disabilities noted above. After the implementation, the RO should reconsider the Veteran's TDIU claim and obtain any additional developments as necessary. The matters are REMANDED for the following action: (Continued on the next page) 1. Implement the Board's decision herein granting service connection for right knee, back, bilateral hip, and neck disabilities. 2. Conduct any other development deemed necessary and readjudicate the remanded TDIU claim. A. Yaffe Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.