Citation Nr: 21026710 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 09-20 993 DATE: May 3, 2021 ORDER Service connection for degenerative joint disease (DJD) of the left knee, claimed secondary to the service-connected right knee disability and left great toe disability is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran's current DJD of the left knee did not onset due to disease or injury sustained during his period of service and was not manifest within one year of separation from service. The Veteran's left knee DJD was not caused by or made worse by his service-connected right knee or left great toe disabilities. 2. The service-connected disabilities are not shown to preclude the Veteran from securing and following substantially gainful employment consistent with his work and education background. CONCLUSIONS OF LAW 1. The criteria for to service connection for DJD of the left knee have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for assignment of a TDIU have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1972 to July 1974. These matters came before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the RO. The Veteran testified at a Board hearing held at the RO in April 2011 before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been made a part of the record. The Board remanded the appeal in January 2014 and September 2016 for further development of the record. In August 2017, the Board denied the claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court granted the parties' Amended Joint Motion for Partial Remand (Joint Motion), vacated the August 2017 decision and remanded the issue to the Board for additional development of the record. Specifically, the parties agreed that an addendum opinion as to whether the left knee DJD was aggravated by the service-connected residuals of right knee strain with DJD was necessary. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The parties also agreed that additional VA opinion was necessary to determine if his left knee DJD was caused or aggravated by his service-connected left great toe disability. Finally, the parties agreed that the claim for a TDIU rating was inextricably intertwined with the claim of entitlement to service connection for left knee DJD and the claim should be deferred until the development for the left knee DJD had been completed. In November 2018, the Board remanded these issues on appeal to the RO for development consistent with the May 2018 Joint Motion. In an October 2020 addendum opinion, the VA examiner opined that the left knee DJD was not aggravated by the service-connected right knee disability or caused or aggravated by the service-connected left great toe disability. Thus, the requested development has been completed and the claims have been returned to the Board for further appellate adjudication. 1. Entitlement to service connection for degenerative joint disease (DJD) of the left knee, claimed secondary to the service-connected right knee disability and left great toe disability Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, degenerative arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, degenerative arthritis is a chronic disease. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Further, service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran asserts that his left knee DJD was caused or aggravated by his service-connected right knee disability, the result of his overcompensation for the service-connected right knee disability. In the alternative, he contends that his left knee DJD was caused or aggravated by his service-connected left great toe fracture. The service treatment records do not contain documentation of complaints of or treatment for a left knee disability. Dated 34 years after service, March 2008 X-ray findings show a diagnosis of mild DJD of the left knee. In a March 2011 VA orthopedic clinic consult note, the Veteran reported a three-month history of left knee pain (and left wrist pain) following a motor vehicle accident (MVA) in which the motorcycle he was riding on struck a truck. The October 2011 report of VA examination documents a diagnosis of mild left knee DJD. The Veteran reported that he injured his left knee in a motorcycle accident in December 2010. The physician opined that the Veteran's claimed left knee DJD was less likely than not proximately due to or the result of the Veteran's service-connected right knee disability. The physician noted that the Veteran was shown to have mild left knee DJD in 2008 and gave a history of motorcycle accident. The physician explained that the mild DJD would not be inconsistent with normal aging changes. The physician determined that much of the Veteran's left knee pain was related to the motorcycle accident in December 2010. The physician concluded that based on the Veteran's history and his clinical experience and expertise, the Veteran's left knee disability was less likely than not related to his service-connected right knee disability. A November 2011 VA treatment record documents the Veteran's report that his left knee disability onset after a motorcycle accident in 2009. During the April 2011 Board hearing, the Veteran testified that his left knee disorder resulted from his overcompensation for the service-connected right knee disability. In the October 2016 VA examination addendum, the physician documented his review of the evidence of record and opined that the claimed DJD of the left knee was less likely than not proximately due to or the result of the Veteran's service-connected right knee disability. The physician explained that the Veteran's mild left knee DJD (documented in the 2008 x-ray findings) was consistent with normal aging process for a person who has had body mass index (BMI) in the range of 36 to 40 between 1998 and 2008. Further, citing to a paper prepared by the Workplace Safety and Insurance Appeals tribunal, Ontario, Canada, the physician reported that there was no clear evidence to suggest that an injury to one lower extremity would have any significant impact on the opposite uninjured limb. Thus, the physician concluded that the Veteran's claim that his left knee DJD is a result of overcompensation for his service-connected right knee disability was not supported by scientific literature. The October 2020 Report of VA knee and lower leg conditions examination documents diagnosis of left knee osteoarthritis. The Veteran reported that he fell down a flight of stairs in the barracks while stationed in Germany and sustained an injury to his right leg from the thigh down to the ankle. He complained that his left knee pain was due to overcompensation for his right knee disability. X-ray findings showed tricompartmental degenerative arthritis of the left knee. The examiner opined that the left knee DJD was less likely than not incurred in or caused by DJD of the left knee during service. The examiner explained that the left knee strain in 1973 was acute only and there was no evidence of chronicity of care. In addition, the examiner opined that the left knee DJD was less likely than not proximately due to or the result of the service-connected left great toe fracture. The examiner explained that the left knee DJD and left great toe fracture were separate conditions and medically unrelated and concluded that there was no medical literature which supported the assertion that the left knee DJD was due to the service-connected left great toe fracture. The examiner explained that the left knee DJD was due to normal wear and tear of the joint and other factors, specifically, being overweight. The examiner determined that the left knee DJD was not aggravated beyond normal progression by the service-connected left great toe fracture. Similarly, the examiner explained that the left knee DJD and right knee strain were separate conditions and medically unrelated and reiterated that the left knee DJD was due to normal wear and tear of the joint and other factors, including being overweight. The examiner concluded that there was no aggravation of the left knee DJD, beyond normal progression, due to the service-connected right knee strain. Though the Veteran has current left knee DJD, the preponderance of the evidence is against a finding of a linkage between the onset of the left knee DJD and the service-connected right knee disability or service-connected left great toe disability (or a period of service). Rather, the evidence shows that the current left knee DJD, left great toe fracture and right knee strain were separate conditions and medically unrelated. There was no medical literature which supported the assertion that the left knee DJD was due to the service-connected left great toe fracture or aggravated beyond normal progression by the service-connected left great toe fracture or service-connected right knee strain. The left knee DJD was due to normal wear and tear of the joint and other factors, including being overweight (See October 2020 VA examination addendum opinion). The evidence clearly shows that the current left knee DJD had no etiological relationship to the service-connected right knee disability or left great toe disability (or in-service injury), having onset after service consistent with the Veteran's normal aging process and injury sustained in an accident in December 2010 (See October 2011 VA examination report and December 2016 VA examination addendum). Further, scientific literature did not support the Veteran's contention that his left knee DJD was a result of overcompensation for his service-connected right knee disability (i.e., there was no clear evidence to suggest that an injury to one lower extremity would have any significant impact on the opposite uninjured limb) (See December 2016 VA examination addendum). This conclusion is probative as it is based on facts presented by both the service treatment records and the assertions made by the Veteran at the time of the VA examination. There is also no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between any current left knee DJD and a service-connected disability (or a period of the Veteran's service). The Board notes that the October 2020 examiner opined that the "left knee DJD was less likely than not incurred in or caused by DJD of the left knee during service," explaining that the left knee strain in 1973 was acute only and there was no evidence of chronicity of care. However, the Board notes that the Veteran sustained right knee strain in service (not left knee strain) and he did not have manifestations of DJD, left or right, during a period of service. Thus, there is no evidence of left knee arthritis in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1339. No examiner in service, or since, has established chronicity or an underlying chronic disease process in service. In sum, characteristic manifestations sufficient to identify the disease (arthritis) entity were not noted. Further, there is no demonstration of continuity of symptomatology or evidence of arthritis within one year of separation from service. Thus, service connection cannot be awarded on a presumptive basis. 38 U.S.C. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303(b), 3.307, 3.309. The Veteran is competent to report his symptoms, but he is not competent to link his left knee DJD to the service-connected right knee disability or left great toe disability. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). The Veteran is not competent to establish that his current left knee DJD onset due to his service-connected right knee disability or left great toe disability. The Veteran is not competent to offer opinion as to etiology of any current left knee DJD. The question regarding the etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claim for service connection for DJD of the left knee must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or, as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the Veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341 (2016). Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (2016). For a Veteran to prevail on a total rating claim, the record must reflect some factor which takes his or her case outside of the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1996); 38 C.F.R. §§ 4.1, 4.15 (2016). The sole fact that a Veteran happens to be unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose, supra, at 363; 38 C.F.R. § 4.16 (a). The fact that a Veteran is unemployed is generally insufficient to demonstrate that he is considered "unemployable" within the meaning of pertinent VA laws and regulations. Instead, a longitudinal review of all the evidence is necessary in order to obtain a full understanding of the case. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Service-connection is currently in effect for posttraumatic stress disorder (PTSD) (30 percent disabling); residuals of right knee strain with DJD (10 percent disabling); tinnitus (10 percent disabling); deviated nasal septum (10 percent disabling); fracture of the left great toe (0 percent disabling); and, hearing loss (0 percent disabling); the combined rating for these service-connected disabilities is 50 percent. In the October 2011 VA examination report the physician did not indicate whether the Veteran's service-connected right knee disability impacted his ability to work. However, the physician did remark that the Veteran did not give maximum effort with strength testing. The physician explained that the Veteran's complaints of pain were greater than expected given the x-ray findings and the physical appearance of the knee joint. X-ray findings showed moderate degenerative changes of the right knee. There was minimal joint enlargement on physical examination with a great deal of guarding during passive range of motion and testing of the right knee. Active range of motion was less than x-ray findings would suggest. The physician concluded that the Veteran's service-connected right knee disability was productive of a moderate degree of severity. The November 2017 Report of VA PTSD examination reflects that the Veteran spoke about how his in-service stressors impacted his life. However, he was able to work despite that his in-service stressors impacted his social and occupational functioning. The April 2019 Report of VA hearing loss and tinnitus reflects that the Veteran's hearing loss and tinnitus have impact on ordinary conditions of daily life, including ability to work as his hearing loss caused him to misinterpret what people were saying and his tinnitus was manifested by a sound at night which gave him anxiety. The December 2019 Report of VA sinusitis, rhinitis and other conditions of the nose, throat, larynx and pharynx reflects that the Veteran's deviated septum had no impact on his ability to work. Lay statements received in August 2008 submitted on the Veteran's behalf reflect that he lost 2 jobs because of his "knees." He worked at Walmart Distribution Center for 2 weeks but could not maintain his employment because of his "knees." Similarly, he worked at Greenbrier for approximately 2 weeks, welding and repairing railroad cars. He was let go from that job because he had to be placed on light duty because of his knees and Greenbrier did not have any light duty employment options. The Veteran's application for a TDIU reflects that his "knees" disability prevents him from securing or following a substantially gainful occupation. The Veteran reported that he was unable to work due to right knee disability as he took medication for his right knee pain and required assistance to care for himself. He also reported that he collapsed at work due to his knee and sustained injury to his right wrist which required surgical intervention. He stated that he experienced blood clots in his right wrist and spent 2 weeks in the hospital after his surgery. He had been employed as a maintenance technician at the Humane Society from September 2011 until his retirement in February 2020. He indicated that he did not leave his last job because of his disability. The Board reiterates that the left knee disability is not service connected as adjudicated above, as the evidence does not show that his left knee disability is secondary to his service-connected right knee disability or left great toe disability. In light of the Veteran's minimal effort in testing and complaints of pain being inconsistent with objective physical findings (See October 2011 VA examination report), in the January 2014 remand, the Board instructed RO to schedule the Veteran for examination to determine if his service-connected disabilities (right knee and left great toe) render him unable to secure or follow substantially gainful employment. He was scheduled for examination in March 2015; however, he failed to report for examination and provided no explanation for his failure to report for the examination or request that his examination be rescheduled. Given the Veteran's inability to cooperate with VA to obtain an adequate opinion as to his ability to be employed, further efforts to assist the Veteran in this regard will not be expended. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The preponderance of the evidence of record weighs against finding that the Veteran's service-connected right knee or left great toe disabilities, without consideration of non-service-connected disabilities, preclude him from obtaining or engaging in any form of substantially gainful employment. In reaching this conclusion, the Board has considered the Veteran's lay assertions and statements submitted on his behalf that his service-connected right knee renders him unable to work. The Veteran is competent to describe the symptoms and associated limitations of his disabilities and the lay statements submitted on his behalf are competent to describe employment histories. However, as noted the October 2011 VA examination showed that he gave minimal effort. In addition, the Veteran's TDIU application reflects that he was subsequently employed as a maintenance technician at the Humane Society from September 2011 until his retirement in February 2020. He reported that he did not leave this job because of his disability. Similarly, the evidence of record weighs against finding that the Veteran's service-connected PTSD; tinnitus; deviated nasal septum; and, hearing loss disabilities preclude him from obtaining or engaging in any form of substantially gainful employment. The November 2017 Report of VA PTSD examination reflects that the Veteran was able to work despite the fact that his in-service stressors impacted his social and occupational functioning. In addition, though the April 2019 Report of VA hearing loss and tinnitus reflects that the Veteran's hearing loss and tinnitus caused him to misinterpret what people were saying and his tinnitus was manifested by a large whooshing sound at night which gave him anxiety, the examination does not indicate that the Veteran was incapable of performing the physical and mental acts required by employment due to his service-connected hearing loss and tinnitus disabilities. Finally, the December 2019 Report of VA sinusitis, rhinitis and other conditions of the nose, throat, larynx and pharynx reflects that the Veteran's deviated septum had no impact on his ability to work. (Continued on next page) The evidence indicates that the Veteran was not unemployable due solely to his service-connected disabilities given that he had been employed for approximately 9 years (2011 to 2020) prior to his retirement. The claim is therefore denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson 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.