Citation Nr: 21031387 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-30 989 DATE: May 21, 2021 ORDER Service connection for degenerative arthritis of the lumbar spine is granted. Service connection for degenerative arthritis of the cervical spine with right upper extremity radiculopathy is denied. A rating greater than 10 percent for right knee patellofemoral syndrome with chondromalacia is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his degenerative arthritis of the lumbar spine is at least as likely as not related to his in-service injury. 2. The weight of competent and credible evidence is against finding that degenerative arthritis of the cervical spine with right upper extremity radiculopathy began during active service or is otherwise related to an in-service injury or disease. 3. The Veteran's right knee patellofemoral syndrome with chondromalacia is manifest by extension limited to 10 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative arthritis of the lumbar spine are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for degenerative arthritis of the cervical spine with right upper extremity radiculopathy are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for a rating greater than 10 percent for right knee patellofemoral syndrome with chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5260-61 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from October 1986 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in February 2015 and a Statement of the Case (SOC) was issued in June 2016. The Veteran perfected an appeal by submitting a timely VA Form 9 in June 2016. These issues were previously before the Board, in November 2018 and again in July 2019. In July 2019, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to 1) request the Veteran to authorize the release of all private and other non-VA medical records pertaining to his lumbar spine disability, cervical spine disability, and respiratory condition; 2) obtain a supplemental medical opinion as to whether it was at least as likely as not that the Veteran's chronic obstructive pulmonary disease (COPD) may be linked to service; and, 3) arrange for a new examination of the Veteran's right knee disability to evaluate its current severity. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary. Stegall v. West, 11 Vet. App. 268 (1998). In October 2019, the Veteran submitted a VA Form 21-4142 authorizing the release of pertinent non-VA medical records from three providers. The AOJ reached out the private medical providers but two responded that the Veteran's records were no longer kept, and the remaining private provider did not respond. In January 2020, the Veteran underwent a VA examination to determine the current severity of his service-connected right knee disability. Another VA examiner opined that the Veteran's COPD was at least as likely as not caused by service. Before the matter was certified to the Board, in a July 2020 rating decision, the RO granted service connection for COPD and assigned an initial 10 percent rating, effective March 25, 2014 and a 30 percent rating from February 8, 2019. The award of service connection for COPD constitutes a complete grant of the benefit sought on appeal. The record currently available to the Board contains no indication that the appellant has initiated an appeal with the effective date or initial ratings assigned. Thus, this issue is not before the Board. Cf. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in July 2020. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert, 1 Vet. App. at 54. 1. Service connection for degenerative arthritis of the lumbar spine The Veteran contends that he injured his back during active duty and that he has had continuous back pain since that injury. The evidence is in equipoise as to whether there is a causal link between the Veteran's degenerative arthritis of the lumbar spine and his active service. In December 2020, the Veteran submitted a copy of a private medical opinion from April 2018 that was submitted in May 2018 and again in May 2019. The private medical practitioner found that the Veteran's back disability was at least as likely as not caused by the Veteran's in-service back injury. The private practitioner cited the Veteran's statements of continuous back problems since service, a discectomy within 5 years of discharge at age 36, and contemporaneous diagnostic test results that demonstrate "type of back injury which is consistent with what I would expect from injuries due to being a paratrooper." The private practitioner also added that the Veteran walked with an antalgic gait to compensate for his service-connected right knee that caused additional wear and tear on the Veteran's back beyond the natural aging process. In December 2003, the Veteran submitted a claim of service connection for his back disability. The Veteran stated that the disability occurred in February 2001, and that treatment began on the same day at a private medical facility with Dr. M. The Veteran also reported that he completed several airborne operations that resulted in hard landings that led to his current condition. Service treatment records show the Veteran reporting back pain in January 1987 and a back injury in July 1994. The Veteran did not, however, report any back problems in his medical examination in January 1995 although he reported knee pain and injuries in his elbow and wrist. In February 2014, the Veteran complained of back problems that "began in approximately 2000" but believed that they dated back to the time in active duty. In August 2014, the Veteran underwent a VA examination for his back disability and was diagnosed as having lumbar spondylosis status post microdiscectomy with residual scar since 2001. The Veteran reported that the date of onset of the symptoms was in 1987 and that he had a microdiscectomy in 2001. The examiner opined that it was less likely than not that the Veteran's back disability was connected to service but stated that he was "unable to render an opinion" in the remarks. VA Medical Center treatment records from July 2014 note that the Veteran had a marginal antalgic gait. Treatment records from August 2014 state that the Veteran's chronic low back pain could have been caused by "poor muscle imbalances and abnormal arthrokinematics." In May 2018, the Veteran's attorney argued that the Veteran's back disability was caused by service, citing the aforementioned private medical opinion and statements from the Veteran's sisters who reported that the Veteran complained of back pain since service. In a November 2018 decision, the Board found that an examination of the Veteran's right knee could impact the decision on the Veteran's back disability and remanded the claim. In February 2019, the Veteran underwent a VA examination for his back disability. The examiner diagnosed the Veteran as having degenerative arthritis of the spine and wrote "after separation from military" under "Date of Diagnosis." The Veteran reported that the date of onset of the symptoms was in 1986 and that they began during basic training. The Veteran reported having two back surgeries, in 2000 and in 2002 respectively, and that he worked as a truck driver, in car sales, and in plumbing. The examiner opined, in February 2019 and again in March 2019, that the Veteran's gait appeared more related to the Veteran's back disability rather than the service-connected right knee, and therefore that the Veteran's back disability was less likely than not due to the service-connected disability. The examiner also added that the condition that lead up to the surgery was not available. On the issue of direct causation, the examiner again noted the absence of medical records up to the time of the back surgeries and that the service treatment records only note "isolated occurrence of back pain" with "no documentation of chronic ongoing back condition while in service." Based on the absence of "information to the contrary" the examiner found that the preponderance of the evidence indicated that the Veteran's current back disability was unrelated to his service. In July 2019, as discussed above, the Board remanded the claim to obtain pertinent treatment records since separation. Despite the Veteran providing authorization and the AOJ contacting the named private practitioners, however, no pertinent records could be obtained. In sum, there is a private medical opinion in favor of finding service-connection from April 2018, and a February 2019 VA examination against finding service connection based on the medical evidence of record supporting the resolution of the Veteran's in-service back injury. Although the private medical opinion was based on contemporaneous diagnostic test results that the AOJ could not obtain, and therefore are not before the Board or before any of the VA examiners, there is no evidence of record outweighing the Veteran and his sisters' statements of continuous back pain since service. Moreover, despite the lack of contemporaneous diagnostic test results, the Veteran's 2 back surgeries at age 36 are not at dispute. Thus, the April 2018 private medical practitioner's rationale is supported by adequate rationale. Thus, the evidence is at least in equipoise as to whether the Veteran's back disability was caused by service. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Reasonable doubt will be resolved in the Veteran's favor and thus service connection for back disability is granted. See 38 U.S.C. § 5107. 2. Service connection for degenerative arthritis of the cervical spine with right upper extremity radiculopathy The Veteran contends that his degenerative arthritis of the cervical spine ("neck disability") with right upper extremity radiculopathy was caused by his service. After considering the evidence of record, the Board concludes that the most probative evidence establishes that the Veteran's current neck disability is not caused by active service or any incident therein. Unlike the claim of service connection for a back disability, there is no medical opinion of record supporting a connection between the Veteran's service and his neck disability. Despite numerous supporting statements made by the Veteran's sisters on the Veteran's acquired psychiatric disability or the Veteran's back disability, there are no statements on the Veteran's neck disability supporting continuous symptomatology. The Board finds that had the Veteran experienced symptoms of a neck disability, he would have reported it in a clinical setting or claimed it as he did with his back disability in December 2003. The Veteran, however, did not file a claim for his neck disability until March 2014, more than a decade after filing his claim for a back disability. Cf. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7))); see AZ v. Shinseki, 731 F.3d 1301 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). It is also well established that internal inconsistency, bias, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran may be considered. Caluza v. Brown, 7 Vet. App. 498, 511-12, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curium) (table); Madden v. Gober, 125 Fed. Cir. 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's statements of neck pain since service is contradicted by his statement in April 2016 when he reported that his neck pain began in 2012. The Board finds this April 2016 report to be more probative as it was made in a clinical setting. Given the contradiction in the record as well as the absence of supporting lay testimony in stark contrast to his other disabilities, the record does not establish continuous symptomatology since service. In February 2019, the Veteran was afforded a VA examination for his neck disability. The Veteran reported that the date of onset of the symptoms was in 1995 or 1996, and that the first time he received treatment after separation was in 2000. The examiner opined that the Veteran's neck disability was less likely than not caused by the Veteran's service as it "could not be corroborated as having occurred during service" as there was only an isolated occurrence of neck pain with no further treatment records "consistent with resolution" of the neck condition during service. Although the February 2019 VA examination partially relied on the absence of contemporaneous medical evidence, the Board finds that the examiner did not make a credibility determination but rather found that the existing medical evidence of record supported the resolution of the Veteran's soft tissue injury status post fall in July 1994. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran's claim, and as such entitlement to service connection for neck disability is denied. 3. A rating greater than 10 percent for right knee patellofemoral syndrome with chondromalacia The Veteran contends that he is entitled to a rating greater than 10 percent for his service-connected right knee patellofemoral syndrome with chondromalacia ("right knee disability"). The Veteran is currently rated under 38 C.F.R. § 4.59 that allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, ratings for limitation of flexion of the knee are assigned as follows: flexion limited to 60 degrees is 0 percent; flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. Ratings for limitation of extension of the knee are assigned as follows: extension limited to 5 degrees is 0 percent; extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. Id., Diagnostic Code 5261. VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-2004 (Sept. 17, 2004). Because ratings may be separately assigned for limitation of flexion and limitation of extension, the Board will consider both Diagnostic Codes. In July 2019, the Board found that the February 2019 VA examination was inadequate as it did not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017) and directed the AOJ to obtain a new VA examination that addresses the Veteran's flare-ups. In January 2020, the Veteran was afforded a VA examination for his right knee disability. The Veteran did not report flare-ups of the knee, but that there was pain with walking, standing and sitting for long periods of time, laying down, using the stairs, and squatting. Range of motion for flexion was from 0 to 70 degrees and extension was from 70 to 0 degrees. Severe pain on examination prevented the Veteran from performing repetitive-use testing with at least three repetitions, and he was not examined immediately after repetitive use over time although the examiner noted that pain significantly limited functional ability. The examiner estimated the Veteran's range of motion after repeated use over a period of time for flexion to be from 10 to 60 degrees and extension to be from 60 to 10 degrees. As the Veteran did not report flare-ups, the examiner did not estimate the Veteran's range of motion during flare-ups. There was active movement against some resistance during flexion and extension, but it was partially attributed to back and hip pain. There was no muscle atrophy, no ankylosis, no history of recurrent subluxation, no history of lateral instability, no history of recurrent effusion, and no joint instability. There was also no meniscal conditions or past surgeries. The Veteran used a cane regularly, and there was objective evidence of pain when the right knee was used in weight bearing. Passive motion was the same as active range of motion. Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent for the service-connected right knee disability. As the Veteran's flexion was not limited to 60 degrees even after repeated use after time, the Veteran does not meet the criteria for a compensable rating under limitation of flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Veteran did meet the criteria for a 10 percent rating, but no greater, under 38 C.F.R. § 4.71a, Diagnostic Code 5261, limitation of extension as his extension is limited to 10 degrees. Assigning a separate rating for painful extension, however, is not warranted because the assignment of two separate ratings based upon painful motion would constitute pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition). In this case, the Veteran's noncompensable limitation of flexion with pain on motion is already compensated and rated 10 percent disabling. Therefore, a separate compensable rating for right knee limitation of extension is not warranted. For the foregoing reasons, the preponderance of the evidence reflects that the criteria for a rating greater than 10 percent for right knee disability have not been met or more nearly approximated. The benefit-of-the-doubt-doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yun, 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.