Citation Nr: 21027470 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 12-20 108 DATE: May 5, 2021 ORDER Entitlement to service connection for cervical spine degenerative disc disease (DDD), to include as secondary to service-connected residuals of a total left knee arthroplasty, is denied. Entitlement to service connection for cervical radiculopathy of the right arm, to include as secondary to service-connected residuals of a total left knee arthroplasty, is denied. Entitlement to a compensable initial disability rating for surgical scar of the left knee is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for right knee osteoarthritis and strain for the period prior to October 29, 2019 is remanded. Entitlement to an initial disability rating in excess of 20 percent for right knee osteoarthritis and strain for the period from October 29, 2019 is remanded. Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease and instability is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran's cervical spine DDD did not arise during or as a result of his active service, to include as secondary to service-connected residuals of a total left knee arthroplasty. 2. The preponderance of the evidence indicates that the Veteran's cervical radiculopathy of the right arm did not arise during or as a result of his active service, to include as secondary to service-connected residuals of a total left knee arthroplasty. 3. The Veteran's surgical scars of the left knee are not associated with underlying soft tissue damage, do not measure an area or areas of 144 square inches (929 square centimeters) or greater, and are not unstable or painful. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cervical spine DDD, to include as secondary to service-connected residuals of a total left knee arthroplasty, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for entitlement to service connection for cervical radiculopathy of the right arm, to include as secondary to service-connected residuals of a total left knee arthroplasty, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for entitlement to a compensable initial disability rating for surgical scar of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to August 1982. The claim for an increased rating for a left knee surgical scar comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a January 2017 hearing before the Board of Veterans' Appeals (Board). The claim for an increased rating for the right knee was last before the Board in April 2019. The Board remanded the issue for compliance with an October 2018 decision of the United States Court of Appeals for Veterans Claims. The other claims on appeal were last before the Board in April 2018, when they were remanded for additional development. Finally, the Board notes that the claim for service connection for a low back disability, which was also remanded in April 2018, was granted in a July 2020 rating decision, effective April 23, 2009. As the Veteran has not indicated any disagreement with this decision, the Board finds this to be a complete grant of the benefits sought. Accordingly, it will not be considered further in this decision. SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish secondary service connection, the record must contain: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability; or, aggravated (increased in severity) beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). 1. Service connection for cervical spine DDD The Veteran asserts that his current cervical spine disability arose during or as a result of his active service, including as secondary to his left knee disability. The Veteran's service treatment records (STRs) are negative for complaints, treatment, or diagnosis for cervical spine injuries or conditions. The Veteran's VA and private treatment records are negative for evidence of complaints or treatment for cervical spine conditions in the 12-month period immediately after separation from active service or for medical opinions that support the Veteran's claim. During the Veteran's August 2010 VA examination for spine conditions, the VA examiner noted a positive diagnosis for DDD of the cervical spine with decreased mobility and chronic pain. The Veteran reported neck pain with radiculopathy. An MRI was conducted, and evidence of DDD was found in vertebrae C4 and C5, with mild spinal stenosis at C5 through C7. The examiner opined that they could not determine if the neck disability was related to his knee disability. The Veteran reported falling multiple times because his left knee gave out, but he denied any injuries or trauma to his neck. In a November 2010 Form 9 statement, the Veteran asserted that his left disability resulted in altered posture and gait that affected his spine and right side. He also stated that he had fallen several times due to the disability. During the Veteran's January 2017 Board hearing, the Veteran testified that he had not experienced any neck problems or radiculopathy prior to his left knee surgery. He asserted that a VA doctor told him that his cervical spine condition and radiculopathy were caused by his altered gait and posture, while other VA doctors had told him this was not the case. He also testified that a doctor had prescribed bed rest for him before. During the Veteran's May 2017 VA examination for neck conditions, the VA examiner noted diagnoses for degenerative arthritis of the spine, cervical intervertebral disc syndrome (IVDS), and cervical DDD. The Veteran reported first experiencing neck pain in 2010 after his left knee surgery. The examiner opined that the Veteran's neck pain was caused by multiple factors, and his cervical disc degeneration was most likely caused by genetics, based on the relevant medical literature. The examiner found it less likely than not that the Veteran's neck condition was caused by his knee disability and more likely due to multiple non-service-connected risk factors. Additionally, his cervical DDD was less likely than not incurred during or as a result of his active service. During the Veteran's December 2019 VA examination for neck conditions, the VA examiner opined that it was less likely than not that his neck condition was aggravated beyond its natural progression by his knee disability. The examiner stated that cervical spine DDD could not be aggravated by a knee condition. In an accompanying December 2019 VA opinion, the examiner opined that it was less likely than not that the cervical spine condition was related to the Veteran's active service. The examiner's rationale was based on the lack of in-service evidence of any cervical problems and the other medical evidence of record. The Veteran has consistently asserted that his left knee disability caused or aggravated his cervical spine condition and radiculopathy of the upper extremity. In considering the Veteran's contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the 2017 and 2019 VA examination opinions and medical evidence of record. The Board finds the preponderance of the evidence is against the Veteran's claim for service connection. The Veteran's STRs are negative for any evidence of cervical spine problems. The Veteran has admitted that he did not experience any neck problems until 2010, approximately 28 years after leaving service. The Veteran attributes his neck condition to his altered gait and posture. He also asserts that a VA doctor supported this theory of aggravation or causation. The Board has reviewed the evidence of record, but it has found no documentation of such support. Notably, the Veteran acknowledged that other VA physicians had told him that his neck condition was not caused or aggravated by his knee disability. Additionally, no documented medical opinion supports the Veteran's claim, and the 2017 and, more specifically, 2019 VA examination reports concluded that his neck condition was less likely than not related to service and less likely than not caused or aggravated by his left knee disability. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claim. Accordingly, service connection for a cervical spine condition is denied. 38 U.S.C. § 5107(b). 2. Service connection for cervical radiculopathy of the right arm The Veteran asserts that his current cervical radiculopathy of the right upper extremity arose during or as a result of his active service, including as secondary to his left knee disability. The Veteran's STRs are negative for complaints, treatment, or diagnosis for cervical spine injuries or conditions. The Veteran's VA and private treatment records are negative for evidence of complaints or treatment for cervical spine conditions in the 12-month period immediately after separation from active service or for medical opinions that support the Veteran's claim. During the Veteran's August 2010 VA examination for spine and peripheral nerve conditions, the VA examiner noted a nerve condition in the right upper extremity, with numbness and tingling radiating down the arm. The Veteran reported neck pain with radiculopathy and that his radiculopathy had been worsening over time. The examiner opined that they could not determine if the neck disability was related to his knee disability. The Veteran reported falling multiple times because his left knee gave out, but he denied any injuries or trauma to his neck. In a November 2010 Form 9 statement, the Veteran asserted that his left disability resulted in altered posture and gait that affected his spine and right side. During the Veteran's January 2017 Board hearing, the Veteran testified that he had not experienced any neck problems or radiculopathy prior to his left knee surgery. He asserted that a VA doctor told him that his cervical spine condition and radiculopathy were caused by his altered gait and posture, while other VA doctors had told him this was not the case. He also testified that a doctor had prescribed bed rest for him before. During the Veteran's May 2017 VA examination for neck conditions, the VA examiner noted moderate to severe radiculopathy of the right upper extremity. The Veteran reported first experiencing neck pain in 2010 after his left knee surgery. The examiner opined that the Veteran's neck pain was caused by multiple factors, and his cervical disc degeneration was most likely caused by genetics, based on the relevant medical literature. The examiner found it less likely than not that the Veteran's neck condition was caused by his knee disability and more likely due to multiple non-service-connected risk factors. Additionally, his cervical DDD was less likely than not incurred during or as a result of his active service. During the Veteran's December 2019 VA examination for neck conditions, the VA examiner opined that it was less likely than not that right upper extremity radiculopathy was aggravated beyond its natural progression by any knee condition. The examiner stated that radiculopathy of the upper extremity could not be aggravated by a knee condition. The Veteran has consistently asserted that his left knee disability caused or aggravated his cervical spine condition and radiculopathy of the upper extremity. In considering the Veteran's contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, supra. His lay contentions are thus of markedly lower probative value than, and are outweighed by, the 2017 and 2019 VA examination opinions and medical evidence of record. The Board finds the preponderance of the evidence is against the Veteran's claim for service connection for right upper extremity radiculopathy. The Veteran's STRs are negative for any evidence of cervical spine problems or radiculopathy. The Veteran has admitted that he did not experience any neck problems or radiculopathy until 2010, approximately 28 years after leaving service. The Veteran attributes his neck condition and radiculopathy to his altered gait and posture. He also asserts that a VA doctor supported this theory of aggravation or causation. The Board has reviewed the evidence of record, but it has found no documentation of such support. Notably, the Veteran acknowledged that other VA physicians had told him that his neck condition and radiculopathy were not caused or aggravated by his knee disability. Additionally, no documented medical opinion supports the Veteran's claim, and the 2017 and, more specifically, 2019 VA examination reports concluded that his radiculopathy was less likely than not related to service and less likely than not caused or aggravated by his left knee disability. Based on these facts, the Board finds that the preponderance of the evidence is against the Veteran's claim. Accordingly, the claim for service connection for a radiculopathy of the right upper extremity is denied. 38 U.S.C. § 5107(b). 3. Initial disability rating for a surgical scar of the left knee Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, generally, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in evaluating a claim for a higher initial rating or increased rating, staged rating is appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (for increased rating claims); Fenderson v. West, 12 Vet. App. 119, 126 (1999) (for initial rating claims). The Veteran's left knee surgical scars are rated under Diagnostic Code 7805, which applies to limitation of function of the affected part and provides: "Evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code." See 38 C.F.R. § 4.118. Diagnostic Code 7800 pertains to burn scars of the head, face, or neck; scars of the head, face and neck due to other causes; or other disfigurement of the head, face, and neck. As the Veteran's scars are on his knee, this diagnostic code is not appropriate. Diagnostic Code 7801 pertains to burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage and provides for a 10 percent rating for an area or areas of at least 6 square (sq.) inches (39 sq. centimeters (cm)) but less than 12 sq. inches (77 sq. cm.). A 20 percent rating is assigned for an area or areas of at least 12 sq. inches (77 sq. cm.) but less than 72 sq. inches (465 sq. cm). A 30 percent rating is assigned for an area or areas of at least 72 sq. inches (465 sq. cm.) but less than 144 sq. inches (929 sq. cm). A 40 percent rating is assigned for an area or areas of 144 sq. inches (929 sq. cm) or greater. 38 C.F.R. § 4.118. Diagnostic Code 7802 pertains to burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage and provide that a 10 percent rating is assigned for an area or areas of 144 sq. inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118. Diagnostic 7804 pertains to unstable or painful scars and provides for a 10 percent rating for one or two scars that are unstable or painful; a 20 percent rating for three or four scars that are unstable or painful; and a 30 percent rating for five or more scars that are unstable or painful. 38 C.F.R. § 4.118. During the Veteran's April 2010 VA examination for joint conditions, the VA examiner noted a 25-centimeter (cm) scar on the anterior of the left knee. During the Veteran's May 2017 VA examination for knee conditions, the VA examiner noted left knee lateral surgical scars that measured 26 cm by 0.12 cm and 5 cm by 0.15 cm, with no evidence of the scars being painful or unstable. During the Veteran's November 2019 VA examination for knee conditions, the VA examiner noted a left anterior knee scar that measured 16 cm by 0.12 cm. There was no evidence that it was painful, unstable, or had a total area equal to or greater than 39 square cm. The Veteran's VA treatment records do not reflect the Veteran's left knee scars being unstable, painful, or greater than 39 square cm in area. In this case, the Board finds that a compensable schedular rating is not warranted for the Veteran's post-surgical knee scars. Diagnostic Code 7801 is not for application, as there is no evidence that the Veteran's scars cover an area of at least 6 square inches, or that it is associated with underlying soft tissue damage. Under Diagnostic Code 7802, a compensable rating is not warranted. This is so because the Veteran's scars do not cover a surface area of 144 square inches (929 sq. cm) or greater; therefore, a compensable rating is not available. Diagnostic Code 7804 allows for a 10 percent disability rating for painful or unstable scars. However, there is no evidence that the Veteran's scars are or have ever been painful or unstable. As there is no evidence that the scars are painful or unstable, there exists no basis for a compensable rating under this code section. In instances where the schedule does not provide a zero percent evaluation for a diagnostic code, as with Diagnostic Code 7805, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. As set forth above, the Veteran does not present with any notable symptoms of his disability or meet the criteria for a compensable evaluation per Diagnostic Codes 7800 through 7804. Accordingly, he has properly been assigned a noncompensable rating in this case, such that the appeal seeking a higher rating is denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). REASONS FOR REMAND The Board notes that, effective February 7, 2021, VA amended the criteria for rating musculoskeletal system and muscle injuries disabilities. See 83 Federal Register 76453 (November 30, 2020). VA published in the Federal Register the proposed rule for Schedule for Rating Disabilities: musculoskeletal system and muscle injuries on November 30, 2020. The summary in the Federal Register notes that the purposed of this revision is to ensure that the schedule uses current medical terminology and provided detailed and updated criteria for the evaluation of the musculoskeletal disabilities. Notably, the revised changes revised the criteria for instability of the knee under Diagnostic Code 5257 and for impairment of the tibia and fibula under Diagnostic Code 5262. The updated rating criteria under DC 5257 take into consideration whether veterans use a prescribed device or brace to assist with ambulation. The Veteran's November 2019 VA examination for knee conditions indicates that he made occasional use of a cane and regular use of a knee brace to assist with his disability, but the examiner did not indicate whether these devices were prescribed. His VA treatment records reflect him using a medical knee brace to assist with locomotion, but they do not explicitly state that the brace is prescribed. See, e.g., March 2017 VA treatment record. Accordingly, these issues must be remanded for a new VA examination that takes into account the updated regulations. As the further development and readjudication of the knee claims could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. The AOJ must first develop and readjudicate the knee claims before readjudicating the issue of TDIU. The matters are REMANDED for the following actions: Schedule the Veteran for a VA orthopedic examination to evaluate the severity of his service-connected right knee disabilities. (a) The examiner should provide an assessment of the current nature and severity of the Veteran's right knee disabilities. Accordingly, the examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the conditions. Also, all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups should be reported. If for any reason the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. The VA examiner should note the revised changes of the criteria for rating musculoskeletal system and muscle injuries disabilities, effective February 7, 2021, to include the change in criteria for instability of the knee under Diagnostic Code 5257 and for impairment of the tibia and fibula under Diagnostic Code 5262. With regard to Diagnostic Code 5257, the examiner should consider: (a) the extent of any sprain or ligament tear (and repair thereof), (b) the use of assistive devices (e.g., a cane, crutches, or a walker), (c) whether any assistive devices are prescribed, (d) the need for bracing for ambulation, and (e) the extent and degree of any current instability. Regarding Diagnostic Code 5262, and medial tibial stress syndrome/shin splints, the examiner should consider: (1) the extent and duration of treatment; and (2) responsiveness to surgery, shoe orthotics, or other conservative treatment, if applicable to the case at hand. (b) The examiner is also asked to state whether the Veteran has had at any point during the period on appeal a history of meniscal conditions, meniscal dislocation, tears, or frequent episodes of joint pain and locking in his knees. In making this determination, the examiner must review the Veteran's medical history, including the Veteran's lay statements. If necessary, the examiner should solicit reports from the Veteran directly. The claims file must be reviewed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.