Citation Nr: 21030837 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-15 677 DATE: May 19, 2021 ORDER A 10 percent rating, but no more, for limitation of flexion, left knee, is granted. A 10 percent rating, but no more, for limitation of flexion, right knee, is granted. A 20 percent rating, but no more, for chondromalacia left patella with degenerative changes is granted. A 20 percent rating, but no more, for chondromalacia right patella with degenerative changes is granted. A rating in excess of 20 percent for left knee instability is denied. A rating in excess of 20 percent for right knee instability is denied. Service connection for shin splints is denied. Service connection for obesity is denied. FINDINGS OF FACT 1. The Veteran had active duty from May 1989 to July 1990. 2. Limitation of flexion of the left and right knees has been manifested by subjective complaints of pain, locking, decreased balance, and stiffness, among others; objective findings include flexion to be, at worst, 80 degrees and extension to be, at worst, 10 degrees. 3. Chondromalacia of the left and right patella has been manifested by a semilunar cartilage condition with frequent episodes of pain, locking, and effusion into the joint, and no medial tibial stress syndrome (MTSS) or shin splints. 4. Left and right knee instability has been manifested by no recurrent subluxation, lateral instability, or ankylosis. 5. Shin splints were not shown in service and are not causally or etiologically related to service or to a service-connected disability. 6. Obesity has not been medically associated with a service connected disability. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, but no more, for limitation of flexion, left knee, have been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 5260 (2020). 2. The criteria for a 10 percent rating, but no more, for limitation of flexion, right knee, have been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 5261 (2020). 3. The criteria for a 20 percent rating, but no more, for chondromalacia left patella with degenerative changes have been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DCs 5010-5261 (2020). 4. The criteria for a 20 percent rating, but no more, for chondromalacia right patella with degenerative changes have been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DCs 5010-5260 (2020). 5. The criteria for a rating in excess of 20 percent for left knee instability have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 5257 (2020). 6. The criteria for a rating in excess of 20 percent for right knee instability have been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 5257 (2020). 7. Shin splints were not incurred in service and are not secondary to a service connected disability. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303, 3.310 (2020). 8. Obesity is not secondary to a service connected disability. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. §§ 4.1. Separate diagnostic codes identify the various disabilities. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the amended version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the pre-amended regulation is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the claim under the pre-amended criteria prior to February 7, 2021 and both the pre-amended and amended rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Left and Right Knee Limitation of Flexion The Veteran is in receipt of a noncompensable rating under DC 5261 for left chondromalacia patella and a noncompensable rating under DC 5260 for right chondromalacia patella. The Board will consider all appropriate diagnostic codes. Under the pre-amended and amended regulations, a 10 percent rating is warranted when the objective medical evidence shows: flexion of the leg limited to 45 degrees; or extension of the leg limited to 10 degrees. Under the pre-amended and amended regulations, a 20 percent rating is warranted when the objective medical evidence shows: flexion of the leg limited to 30 degrees; or extension of the leg limited to 15 degrees. Turning to the medical evidence, the evidence shows flexion of the right and left legs to be, at worst, 80 degrees. Specifically, in a March 2012 VA examination, the Veteran complained of pain with flexion. Upon examination, flexion of the left and right legs was 130 degrees. Further in a June 2013 VA examination, he complained of pain. Upon examination, flexion of the left and right legs was 125 degrees with pain at 90 degrees. In addition, in an August 2015 VA examination, the Veteran complained of pain, poor balance, and decreased flexion and extension. Upon examination, flexion of the right leg was 110 degrees and flexion of the left leg was 120 degrees. In a December 2016 VA examination, flexion of the left and right legs was 90 degrees. Further, in a February 2018 VA examination, flexion of the left and right legs was 45 degrees. In addition, in an October 2019 VA examination, he complained of stiffness, swelling, locking, and increased aching with repetitive motion. Upon examination, flexion of the left and right legs was 80 degrees. In a March 2020 VA examination, flexion of the right leg was 120 degrees and flexion of the left leg was 125 degrees. As to extension, the medical evidence shows it to be, at worst, 10 degrees. Specifically, in March 2012, June 2013, and August 2015 VA examinations, extension of the left and right legs was 0 degrees (anatomically normal). Further, in a December 2016 VA examination, extension of the left and right legs was 10 degrees. In addition, in a February 2018 VA examination, extension of the left and right legs was 15 degrees. In an October 2019 VA examination, extension of the left and right legs was 10 degrees. Further, in a March 2020 VA examination, extension of the left and right legs was limited to 0 degrees. Based on the above, the medical evidence supports a 10 percent rating, but no more, for limitation of flexion of the left and right knees. In this regard, the medical evidence showed flexion of the left and right legs to be, at worst, 80 degrees and extension to be, at worst, 10 degrees. While the February 2018 private examination noted that flexion of the left and right legs was 45 degrees and extension was 15, which supports a 20 percent rating, this was inconsistent with the remainder of the medical evidence. As such, the totality of the medical evidence supports a 10 percent rating for limitation of flexion of the left and right knees. Therefore, the appeal is granted to this extent. Left and Right Chondromalacia Patella The Veteran is in receipt of a 10 percent rating under DCs 5010-5261 for left chondromalacia patella and a 10 percent rating under DCs 5010-5260 for right chondromalacia patella. The Board will consider all appropriate diagnostic codes. Prior to the regulatory change, a 20 percent rating was warranted when the objective medical evidence showed: dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; or malunion of the tibia or fibula with moderate knee or ankle disability. As of February 7, 2021, under the amended criteria, a 20 percent rating is warranted when the objective medical evidence shows: One of the following: -Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or -Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker; a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker; or MTSS, or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. Prior to the regulatory change, a 30 percent rating was warranted when the objective medical evidence showed malunion of the tibia or fibula with marked knee or ankle disability. As of February 7, 2021, under the amended criteria, a 30 percent rating is warranted when the objective medical evidence shows MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Turning to the medical evidence, a semilunar cartilage condition with frequent episodes of pain, locking, and effusion has been shown. Specifically, in a March 2012, June 2013, and August 2015 VA examinations, a semilunar cartilage condition was shown. In a December 2016 VA examination, a history of joint effusion was shown. Specifically, the examiner wrote that the Veteran experienced recurrent swelling but only one aspiration each. However, the examiner did not mark that the Veteran had a semilunar cartilage condition. In addition, in a February 2018 private examination, the clinician marked that the Veteran had a semilunar cartilage condition with frequent episodes of pain and "locking." However, he did not mark that the Veteran experienced frequent episodes of effusion. In an October 2019 VA examination, a semilunar cartilage condition and episodes of effusion were noted. Specifically, the examiner wrote that the Veteran had bilateral swelling with repetitive motion at the end of the day that resolved with rest and elevation. Further, in a March 2020 VA examination, a semilunar cartilage condition was shown.; however, there was no evidence of frequent episodes of pain, locking, and effusion. Next, while shin splints have been shown, there is no evidence that they required treatment for no less than 12 consecutive months, were unresponsive to surgery, and required either shoe orthotics or other conservative treatment, both lower extremities. Specifically, in March 2012, June 2013, August 2015, and December 2016 VA examinations, shin splints were not shown. In a February 2018 private examination, an October 2019 VA examination, and a March 2020 VA examination, shin splints were noted; however, there was no evidence that they required treatment for no less than 12 consecutive months, were unresponsive to surgery, and required either shoe orthotics or other conservative treatment, both lower extremities. Further, while the Veteran has used a brace, crutch, cane, walker, and wheelchair to ambulate, there is no evidence of a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair. Based on the above, the medical evidence supports a 20 percent rating, but no more, for left and right chondromalacia patella. In this regard, the medical evidence showed a semilunar cartilage condition with frequent episodes of pain, "locking," and effusion into the joint. A higher rating is not warranted, as the medical evidence did not show shin splints requiring treatment for no less than 12 consecutive months, were unresponsive to surgery, and required either shoe orthotics or other conservative treatment, both lower extremities. Further, while the Veteran has used a brace, crutch, cane, walker, and wheelchair to ambulate, there was no evidence of a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair. Therefore, the medical evidence supports a 20 percent rating, but no more, for left and right chondromalacia patella. Left and Right Knee Instability The Veteran is in receipt of a 20 percent rating under DC 5257 for left and right knee instability. Prior to the regulatory change, a 30 percent rating was warranted when the objective medical evidence showed: severe recurrent subluxation or lateral instability; or ankylosis of the knee with favorable angle in full extension, or in slight flexion between 0 and 10 degrees. As of February 7, 2021, under the amended criteria, a 30 percent rating is warranted when the objective medical evidence shows: unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation; favorable ankylosis of the knee in full extension, or in slight flexion between 0 and 10 degrees. Turning to the medical evidence, As to recurrent subluxation or lateral instability, March 2012, June 2013, August 2015, and December 2016 VA examiners specifically found no evidence of recurrent subluxation or lateral instability. On the other hand, in a February 2018 private examination, the clinician noted that the Veteran had moderate recurrent subluxation and lateral instability in the right knee and severe recurrent subluxation and lateral instability in the left knee. However, in October 2019 and March 2020 VA examinations, there was no evidence of recurrent subluxation or lateral instability. As to ankylosis, in March 2012, June 2013, August 2015 and December 2016 VA examinations, ankylosis was not shown. On the other hand, in a February 2018 private examination, the clinician marked that the Veteran had ankylosis in flexion between 20 and 45 degrees. However, in October 2019 and March 2020 VA examinations, ankylosis was not shown. Based on the above, the totality of the medical evidence does not support a rating in excess of 20 percent for left and right knee instability. In this regard, the weight of the medical evidence showed no recurrent subluxation, lateral instability, or ankylosis. While the February 2018 private examination noted recurrent subluxation, lateral instability, and ankylosis, which supports a rating in excess of 20 percent, this evidence is inconsistent with the medical findings both before and after the February 2018 assessment. Therefore, the weight of the medical evidence does not support a rating in excess of 20 percent for left and right knee instability. The Board has also considered the Veteran's lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's knee disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which knee disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by knee disabilities and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Shin Splints As an initial matter, the Veteran contends that shin splints were incurred in service and/or were caused or aggravated by service connected knee disabilities. Therefore, both direct and secondary service connection will be addressed. Turning first to direct service connection, shin splints were diagnosed in 2018. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to an in-service incurrence, service treatment records (STRs) are absent of complaints, diagnoses, or treatment for shin splints. Specifically, the Veteran reported knee pain and foot blisters but did not seek treatment for shin splints. Therefore, as he did not seek treatment for shin splints in service, the second element of direct service connection is not met, and the medical evidence does not support the claim of direct service connection. As to secondary service connection, the Veteran has been diagnosed with shin splints and is service connected for bilateral knee disabilities. Therefore, the first two elements of secondary service connection, a current disorder and a service connected disability, are met. As to nexus, in a March 2020 VA opinion, the clinician opined that shin splints were not caused or aggravated by service connected knee disabilities. He reasoned that shin splints occurred in athletes who have recently intensified or changed their training routines. This evidence weighs against the claim. Further, in a March 2021 VA opinion, the clinician opined that shin splints were not caused or aggravated by service connected knee disabilities. He reasoned that shin splints were caused by changes in training routines. Further, the clinician noted that there were no other STRs or clinical records diagnosed shin splints other than a private examination completed in 2018. In addition, he explained that there was no evidence of intense training exercises with jumps and high performance routines to have caused an onset of shin splints. This evidence weighs against the claim. Based on the above, the medical evidence does not support that shin splints were caused or aggravated by service connected knee disabilities. Therefore, the medical evidence does not support the claim of secondary service connection. In sum, the medical evidence does not support the claim that shin splints were incurred in service and/or were caused or aggravated by service connected knee disabilities. Obesity As an initial matter, obesity per se is not a disease or injury for the purposes of 38 U.S.C. § 1110 and 38 U.S.C. § 1131 and therefore may not be service connected on a direct basis. VA policy states that obesity cannot qualify as an in-service event because it occurs over time and is based on various external and internal factors, as opposed to being a discrete incident or occurrence, or a series of discrete incidents or occurrences. Therefore, obesity itself is not subject to service connection and the appeal is denied as a matter of law. Nonetheless, obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). VAOPGCPREC 1-2017; however, this is not what the Veteran contends. He asserts that service connection for obesity itself is warranted as secondary to his knee disabilities. Nonetheless, the medical evidence does not support his contention. A November 2019 VA clinician opined that obesity was not caused or aggravated by service connected knee disabilities. He reasoned that obesity was due to excess consumption of calories. This evidence weighs against the claim. In March 2020 VA opinion, the clinician opined that obesity was not caused or aggravated by service connected knee disabilities. He reasoned that common causes of obesity included genetics, physiological influences, food intake, sedentary lifestyle, weight history, and drug use. In addition, in a November 2020 VA opinion, the clinician opined that obesity was not caused or aggravated by service connected knee disabilities. He reasoned that obesity was caused by excess consumption of calories. Based on the above, the medical evidence does not support the claim that obesity was caused or aggravated by service connected knee disabilities. Therefore, the medical evidence does not support the claim of secondary service connection. The Board has considered the Veteran's lay statements that these disorders began in service and/or is related to a service connected disability. He is competent to report symptoms because this requires only personal knowledge, as it comes to him through his senses; however, he is not competent to offer an opinion as to the etiologies of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during his current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Therefore, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ragofsky, Danielle 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.