Citation Nr: 21027886 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 19-31 106 DATE: May 7, 2021 ORDER Entitlement to service connection for a ruptured lumbar disc (back disability) is denied. Entitlement to a disability rating in excess of 10 percent for right knee disability is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a bilateral hip condition is remanded. FINDINGS OF FACT 1. The Veteran's back disability was not first manifested on active duty, is not otherwise shown to be the result is not the result of active service, or to be related to a service-connected disability. 2. The Veteran's right knee disability manifests as slight malunion of the tibia and painful motion. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a ruptured lumbar disc (back disability) have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to a disability rating in excess of 10 percent for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the U.S. Army from July 1970 to March 1972. This case comes before the Board of Veteran's Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in January 2016. The RO associated the Veteran's service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. Such includes the examinations ordered in October 2020. As such, VA has satisfied its duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for 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). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Veteran's service treatment record (STRs) are silent for any treatment, diagnosis, or complaints for a back disability. Specifically, December 1971 separation examination report had a normal clinical evaluation. The Veteran marked "no" for swollen painful joints, arthritis, rheumatism or bursitis, and recurrent back problem. The Veteran wrote that he was in good health. A December 2015 VA treatment note documented his back complaints. The Veteran reported that he was told by his chiropractor that his hips were not leveled when he walked. He indicated that his hips not being level caused a strain on his back area. On August 2018 private opinion, Dr. MR, a doctor of physical therapy, noted that the Veteran participated in physical therapy sessions at his clinic for the past 18 months. He noted that the Veteran sustained a right knee injury during service. He indicated that the Veteran had developed low back issues to include disc herniations and spinal stenosis. He noted that although he did not know the extent of the Veteran's right knee injury, lower extremity injuries could cause gait deviation and altered biomechanics which translated abnormal forces through the pelvis and spine. He explained over time theses abnormal forces would increase stress through the spine, leading to spinal issues. In his professional opinion, it was more likely than not that the Veteran's back condition could be related to his right knee injury he sustained in the military. In October 2020, the Veteran was afforded a VA examination. The Veteran was diagnosed with intervertebral disc syndrome. The Veteran reported that his condition started in 2013. He indicated that his condition started with his service-connected right knee condition. The examiner noted that the Veteran's file was reviewed. The examiner acknowledged that the medical literature supported the idea that abnormal gait can impact the back, she found that in this case, the evidence of record did not support a finding of nexus, based on direct cause or aggravation. She noted that discs degenerated with age, and over time could be more susceptible to herniation and injury as a result. In this case, the Veteran had sought treatment for his right knee in the more than 20 years since service, but did not complain of back problems. When back problems were reported beginning in 2014 and 2015, it was of recent onset, in the last 5 to 6 months, following weightlifting. Worsening of back complaints was not associated with knee symptomatology. The examiner acknowledged the 2018 private opinion, but found it speculative in nature, as the physical therapist did not know the nature and extent of the in-service injury, and it stated conclusions based on general clinical knowledge and not on any manifestations (like gait abnormalities) in the Veteran's case. As noted above, the Veteran submitted a private opinion from Dr. MB in August 2018. MB opined that it was more likely than not that the Veteran's back condition could be related to his right knee injury he sustained in the military. There was no indication that the Veteran's STRs were reviewed in making the opinion. The Board considers the October 2020 VA opinion more probative than the August 2018 private opinion as to the nature and etiology of the Veteran's back disability. Again, the private opinion was not made following a review of the complete Veteran's claims file and is not consistent with the contemporaneous evidence of record. As the VA examiner notes, it states general medical principles in place of a fact-specific rationale, and even fails to meet the low standard of proof in Veteran's claims. A nexus only "could be" at least as likely as not.. In other words, the Board weighs the October 2020 VA opinion more heavily than the August 2018 private opinion. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making a definitive clinical determination of the nature and etiology of the Veteran's back disability. See Kahuna v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran can describe that he experiences a back disability, he is not able to provide competent evidence as to the etiology of his condition in this case. Furthermore, the Veteran did not provide and lay or medical evidence of continuous back problem since service, and records reflect onset well after service. Accordingly, the preponderance of the evidence is against the claim for service connection on a direct and secondary basis is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 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 evaluation 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. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). There are multiple diagnostic codes which are potentially applicable to evaluation knee disabilities. Currently, the Veteran is rated 10 percent disabled under Code 5262, for impairment of the tibia and fibula. Under Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. Id. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 C.F.R. §§ 4.2, 4.6. Effective February 7, 2021, nonunion of the tibia and fibula, with loose motion and requiring a brace, warrants a 40 percent rating. Malunion of the tibia and fibula is to be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Diagnostic Code 5262 also provides ratings for medial tibial stress syndrome (MTSS) as of February 7, 2021, also known as "shin splints." MTSS with treatment less than 12 consecutive months, on or both lower extremities, warrants a noncompensable (zero percent) rating. MTSS requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities, warrants a 10 percent rating. MTSS requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity, warrants a 20 percent rating. MTSS requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities, warrants a maximum 30 percent rating. Id. Codes 5260 and 5261 rate the knee on the basis of limitation of motion. Normal range-of-motion of the knee is to zero degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a. Under Code 5260, a noncompensable rating is assigned for limitation of flexion of the knee to 60 degrees; a 10 percent rating is assigned for limitation of flexion of the knee to 45 degrees; a 20 percent rating is assigned for limitation of flexion of the knee to 30 degrees; and a 30 percent rating is assigned for limitation of flexion of the knee to 15 degrees. Id. Under Code 5261, a noncompensable rating is assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating is assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating is assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating is assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating is assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating is assigned for limitation of extension of the leg to 45 degrees. Id. Code 5256, for ankylosis; Code 5257, for joint instability and/or subluxation; Code 5258; and Code 5259, each of which address meniscal injuries, are not for application, as no instability of the right knee or meniscal damage are noted, and the Veteran retains movement of the knee. In March 2016, the Veteran was afforded a VA knee examination. The Veteran was diagnosed with right knee injury with mass (exostosis) and right tibia with knee strain. The Veteran reported that he had several steroid injections for his condition. He indicated that his condition had worsen over time. The Veteran reported that his flare-ups were caused by sometimes nothing or mild activity. He reported that he had a functional impact/loss described as not being able to sit for long periods. His initial range of motion (ROM) was 115 degrees for flexion and 0 degrees for extension. ROM itself did not contribute to a functional loss. There was no pain noted on the examination. There was no evidence of pain on weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional functional loss or ROM. The examiner noted that examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner noted that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or flare-ups. The examiner explained that the examination was not after repeated use over time or flare-ups. The Veteran had a normal muscle strength test and joint stability test. He did not have muscle atrophy or ankylosis. He did not have a history of recurrent effusion. He did not have recurrent shin splints (medial tibial stress syndrome) or any other tibial and/or fibular impairment. He did not have a meniscus condition. The Veteran used a braced regularly for his condition. Degenerative or traumatic arthritis was documented in the right knee. The examiner opined that the Veteran's right knee condition did not impact his ability to perform any type of occupational task. In October 2020, the Veteran was afforded a knee examination. He was diagnosed with a knee strain, knee joint osteoarthritis, knee stress fracture of tibia, and knee cartilage restoration surgery, right knee mass exostosis, and baker's cyst rupture. He reported that he treated his condition with Tylenol and Ibuprofen. He indicated that he had a popping and clicking noise in his knee. He reported that his current symptoms were pain and soreness in his knee. He indicated that he had numbness in his knee that went down to his calf, which caused him to change his gait. He reported that his condition caused him to not be able to sit for prolonged periods. His pain sometimes limited his walking and standing. He reported that he had flare-ups that were severe and lasted up to 2 days. His flare-ups were precipitated by walking, sitting, standing, and bending. His flare-ups were alleviated by rest, heat, elevating his leg, and pain medication. The Veteran indicated that he had a functional loss/impairment as limited ROM. He had a normal initial ROM. His ROM was 140 for flexion and 0 degrees for extension. There was pain noted on the examination. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of pain with weight bearing. There was no objective evidence of crepitus. He was able to perform repetitive-use testing with no additional loss of function or ROM. The examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner noted that the examination was conducted during a flare-up. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. He had a normal muscle strength testing. He did not have muscle atrophy or ankylosis. He had a normal joint stability testing. The Veteran had recurrent patellar dislocation "shin splints." This condition did not affect ROM of the knee. The Veteran did not have a meniscus condition. The Veteran did not use an assistive device for his condition. The examiner noted that there was no evidence of pain on passive ROM of both knees. There was no evidence pain on non-weight bearing testing of both knees. The examiner opined that the Veteran's knee condition impacted his ability to perform any type of occupational task. The examiner noted that the Veteran may require a rest break post exertion. After a careful and thorough review of all the medical and lay evidence of record and taking into account possible additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, the Board finds that the currently assigned 10 percent disability rating for the Veteran's right knee disability is appropriate. In considering the lay evidence and medical evidence of record the Board finds the Veteran's disability is best captured by the 10 percent rating. The Board acknowledges the medical evidence and lay evidence document a worsening of the Veteran's right knee disability. However, much of this worsening is attributed to other factors such as soreness, popping, and pain on motion, and are included in the "slight disability" of the knee under Code 5262 (prior to February 7, 2021). The Board finds under this Diagnostic Code, malunion of tibia, the evidence shows the Veteran's disability is slight. Therefore, the Board finds a 10 percent rating should be continued unde that Code. Although shin splints were noted on October 2020 examination, the evidence is negative for any finding that the Veteran's disability manifests malunion of the tibia in order to warrant a higher 20 percent rating under the previous criteria. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2020). Notably, the significant symptoms include pain, stiffness, and slight limitation of motion. This is representative of no more than slight knee disability under Diagnostic Code 5262. While, effective February 7, 2021, ratings are available specifically for shin splints, the medical evidence does not currently reflect treatment for shin splints for 12 consecutive months, unresponsive to either shoe orthotics or other conservative treatment as would be required for a compensable rating. No separate evaluations under any of the Codes governing joint-specific limitation of motion are warranted, as the currently assigned 10 percent is for knee disability generally, and includes all functional impairments. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14. The Board has considered whether a higher rating under such Codes are warranted. In order for a 20 percent rating to be warranted under Code 5260, the Veteran must have flexion of the knee limited to 30 degrees. March 2016 and October 2020 examination reports demonstrated that the Veteran was able to flex his knee well past 45 degrees, even after repetitive use, and even with painful motion being accounted for. Accordingly, a 20 percent rating would not be warranted under Code 5260. In order for a 20 percent rating to be warranted under Code 5261, the Veteran must have extension of the knee limited to 15 degrees. No limitation of extension, even in consideration of pain with that plane of movement, is noted by the VA examiners. Accordingly, a 20 percent rating would not be warranted under Code 5261. Given the above, even when considering the knee pain's impact on physical activities, a higher rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. Accordingly, there is no Code under which a rating in excess of 10 percent, or an additional simultaneous rating, would be warranted, and the Veteran's claim for a rating in excess of 10 percent for a right knee disability is denied. REASONS FOR REMAND In November 2020, the Veteran was afforded a VA examination. The Veteran was diagnosed with bilateral sensorineural hearing loss. The Veteran reported noise exposure from weapons and firing ranges. The examiner opined that the Veteran's hearing loss was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner indicated that the Veteran's MOS had a moderate probability of hazardous noise exposure. The examiner noted that his entry audiogram and exit audiogram showed normal bilateral hearing. Therefore, his current hearing loss could not be contributed to his military noise exposure. The Board finds this opinion is inadequate for adjudication purposes because the examiner's rationale for the negative opinion was that the Veteran did not exhibit hearing loss during service. However, service connection for hearing loss is not precluded where hearing was within normal limits on audiometric testing at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). On remand, an addendum opinion as to the etiology of the Veteran's bilateral hearing loss should be obtained. The Veteran alleges that his bilateral hip disability was related to his service-connected right knee disability. In October 2020, the Veteran was afforded a VA examination. The Veteran was diagnosed with bilateral hip osteoarthritis. The Veteran reported that his condition started in 2013. He indicated that his condition was secondary to his service-connected right knee condition. The examiner provided a negative direct service connection opinion. However, she did not provide a secondary service connection opinion. The Board finds that an addendum VA opinion is required regarding secondary service connection. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Return the file to the VA examiner who provided the October 2020 VA hearing loss and tinnitus examination and opinion. The claims file must be reviewed by the examiner. If the examiner is not available, another appropriate medical professional may be consulted. If the examiner determines that another VA examination is necessary, one should be scheduled. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) the Veteran's bilateral hearing loss is related to his time in service, to include as due to conceded noise exposure. A full and complete rationale for all opinions expressed must be provided. 3. Return the file to the VA examiner who provided the October 2020 VA bilateral hip examination and opinion. The claims file must be reviewed by the examiner. If the examiner is not available, another appropriate medical professional may be consulted. If the examiner determines that another VA examination is necessary, one should be scheduled. The examiner must opine as to whether it is at least as likely as not that the Veteran's bilateral hip disability was caused or aggravated by a service-connected disability. 4. Thereafter, readjudicate the remanded issues. If any benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.