Citation Nr: 21032167 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 20-15 866A DATE: May 26, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a right knee disorder is granted. Service connection for a right knee disability, variously diagnosed, is granted. From December 5, 2016, to September 30, 2019, a rating greater than 10 percent for left knee patellofemoral pain syndrome (PPS) with instability under Diagnostic Code (DC) 5257 is denied. From September 30, 2019, to the present, a rating of 10 percent, but no higher, for left knee PPS with instability under DC 5257 is granted, subject to the regulations governing the award of monetary benefits. An initial rating greater than 10 percent for left knee PPS with painful motion under DC 5260 is denied. FINDINGS OF FACT 1. A final February 2014 rating decision denied service connection for a right knee disorder; newly received evidence raises a reasonable possibility of substantiating the claim. 2. A right knee disability was incurred in or is otherwise etiologically related to military service, including the physical demands thereof. 3. From December 5, 2016, to the present, left knee PPS with instability under DC 5257 resulted in slight, but not moderate, instability. 4. Throughout the period on appeal, left knee PPS with painful motion manifested by subjective complaints of chronic pain, weakness, lack of endurance, and incoordination; objective testing did not show flexion limited to 30 degrees. CONCLUSIONS OF LAW 1. Evidence received to reopen the claim of entitlement to service connection for a right knee disorder is new and material and the claim is reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. A right knee disability, variously diagnosed, was incurred in service. 38 U.S.C. §§ 1106, 1110, 1116, 5107; 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309. 3. From December 5, 2016, to September 30, 2019, the criteria for a rating greater than 10 percent for left knee PPS with instability under DC 5257 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5257. 4. From September 30, 2019, to the present, the criteria for a rating of 10 percent, but no higher, for left knee PPS with instability under DC 5257 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5257. 5. The criteria for an initial rating greater than 10 percent for left knee PPS with painful motion under DC 5260 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1995 to January 1998, including foreign service. For his meritorious service, the Veteran was awarded (among other decorations) the Overseas Service Ribbon. Briefly, the Board acknowledges that the Veteran has several AMA claims awaiting adjudication by the Regional Office (RO). An RO determination on these matters is forthcoming. See April 2021 rating decision (deferring service connection claims for tinnitus and a psychiatric disorder); May 2021 claim (seeking to reopen service connection claims for bilateral foot and back disorders on the basis of new and relevant evidence). New and Material Evidence First, the Veteran is seeking to reopen a right knee service connection claim on the basis of new and material evidence. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, "new evidence" means existing evidence not previously submitted to VA. "Material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Taken in combination, new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Historically, service connection for a right knee disorder was denied in a February 2014 rating decision. The Veteran did not appeal this decision or submit documentation constituting new and material evidence within the one-year appeal period, such that the February 2014 rating decision became final. The Veteran requested to reopen the claim in December 2016. Thus, the Board must determine whether new and material evidence has been submitted since the final February 2014 rating decision. Upon review of the record, new and material evidence has been received since the final February 2014 rating decision. In this respect, the prior final denial was based upon the RO's conclusion that the collective evidence did not establish a direct or secondary nexus in this case. Newly received evidence directly speaks to this element of service connection, to include a March 2017 electronic communication from the Veteran's treatment provider; a January 2020 VA examination; and a June 2020 private nexus opinion. Thus, evidence received since the final February 2014 rating decision raises a reasonable possibility of substantiating the claim. Upon a finding of new and material evidence, the application to reopen the service connection claim for a right knee disorder is hereby granted. Service Connection Upon the reopening of the claim, the Board will now assess whether service connection is warranted for the Veteran's right knee disorder. Although he has offered both direct and secondary theories of entitlement, the Board will limit its evidentiary discussion and analysis to that theory upon which service connection is awarded herein. Thus, service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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). Here, there is competent evidence of a current disability. The Veteran has been diagnosed with multiple right knee conditions during the pendency of this appeal, including right knee patellofemoral syndrome, meniscal tear, degenerative arthritis, and effusion. See, e.g., January 2020 VA examination; June 2020 private nexus opinion. His history of right knee pain and related treatment is also noted throughout VA treatment records. Thus, the first element of direct service connectiona current disability, now classified as a right knee disability, variously diagnosedhas been met. As to the second element, the Veteran partly associates his current right knee disability with the physical demands of service. His testimony is competent and credible evidence on this point. Veterans are generally competent to report events capable of lay observation, including in-service injuries or symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the Veteran's testimony is largely corroborated by the record. Miller v. Wilkie, 32 Vet. App. 249 (2020). Available service treatment records (STRs) document multiple reports of in-service right knee pain and weakness. See, e.g., STRs dated May 1995, June 1995, and October 1997. The claims file also contains an April 2021 lay statement from the Veteran's brother confirming that he both complained of and demonstrated knee pain following his separation from service. Notably, there is no evidence of record which tends to contradict the Veteran's testimony. Rather, his reporting is both consistent with the nature of his service and supported by additional evidence, such that the second element of direct service connection has also been met. Accordingly, this appeal may be granted upon the finding of a nexus between the Veteran's current right knee disability and the in-service incurrences. The claims file contains a private nexus opinion provided in June 2020. In pertinent part, the practitioner concluded that the Veteran's right knee disability "clearly began on active duty [and] has worsened over time and with age." By way of rationale, the practitioner noted that the Veteran's service consisted of "extreme forms of physical activities." The constant movement, intense training, and sports-related injuries described were both credible and well-documented in the STRs. Moreover, the long-term effects of military training on the body are well-documented. The type of physical training and demands required of servicemembers can make them susceptible to weakened ligaments at an accelerated rate. Additionally, cartilage damage and narrowing of joint space can result, and often will not manifest until much later. The practitioner also noted that there were no documented right knee injuries prior to service. Complaints, treatment, and a diagnosis were noted on active duty. Post-service, the Veteran continues to complain of residuals and pain which is similar to and consistent with his active duty complaints. As such, the practitioner offered his professional opinion that the right knee condition never fully resolved. Instead, subsequent wear and tear such as running and other high impact activities can worsen degenerative arthritis. Thus, a nexus was asserted at that time. This opinion is probative evidence in favor of the appeal. Compellingly, the opinion was offered by a medical expert who afforded direct contemplation as to the Veteran's military and medical histories, including the physical demands of service and the nature of his current right knee disability. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). The opinion is also largely supported by the record, including the Veteran's STRs and lay testimony. Of note, there is no evidence which tends to contradict the June 2020 opinion; rather, there is a wealth of evidence which tends to support the practitioner's findings. See March 2017 electronic correspondence ("Whatever the ultimate 'cause' of degenerative arthritis, there is no question that 'wear and tear' , such as caused by running and other high impact activities, will worsen the condition"); January 2017 VA examination (documenting the Veteran's reports of knee pain since service, STRs showing bilateral knee complaints, and the absence of any post-service injuries); January 2020 Disability Benefits Questionnaire (DBQ) (noting new diagnoses of effusion and meniscal tear which are "directly due to or related to the [service-connected] diagnosis," and that the new diagnoses may have been missed due to the absence of an MRI at the time the prior diagnosis was made); January 2020 VA treatment record (noting that knee pain "dates back 20 years" and started in service). Given the probative value of the June 2020 opinion, a nexus is found in this case. Accordingly, the preponderance of the evidence weighs in favor of the appeal, the benefit-of-the-doubt doctrine is for application, and service connection for a right knee disability, variously diagnosed, is hereby granted. Increased Ratings Finally, the Veteran is pursuing increased ratings for his left knee disabilities. Historically, the Veteran was awarded service connection for residuals of a left knee injury under DC 5257. See January 1999 Rating Code Sheet. In a February 2017 rating decision, his disability was reclassified as left knee PPS with lateral instability and he was awarded a 10 percent rating under DC 5257; a separate 10 percent rating for left knee PPS with painful motion was also awarded under DC 5260 at that time. However, a June 2018 rating decision proposed to terminate the separate evaluation for left knee PPS with instability upon the finding of a clear and unmistakable error (CUE). The termination was effectuated in a July 2019 rating decision. Thus, the Veteran remains service-connected only for left knee PPS with painful motion under DC 5260 at this time. Procedurally, the Veteran did not appeal the July 2019 rating decision which terminated the award of service connection under DC 5257; rather, he appealed the February 2017 rating decision only. As such, the matters currently on appeal are construed as follows: (1) Entitlement to a rating greater than 10 percent for left knee PPS with instability under DC 5257 from December 5, 2016, to September 30, 2019; and (2) entitlement to an initial rating greater than 10 percent for left knee PPS with painful motion under DC 5260. See April 2021 Code Sheet. As these appeals require similar analyses, they will be addressed simultaneously herein. Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised 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 former version 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; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. This consideration is not relevant to the Board's analysis regarding entitlement to a rating greater than 10 percent for left knee PPS with instability under DC 5257 from December 5, 2016, to September 30, 2019, as the period on appeal exists prior to the regulatory changes. Accordingly, a 20 percent rating is warranted upon evidence of the following: Moderate recurrent subluxation or lateral instability. With respect to the appeal seeking entitlement to an initial rating greater than 10 percent for left knee PPS with painful motion under DC 5260, this DC was unchanged by the February 2021 amendments. Accordingly, a higher rating or the award of a separate service-connected, compensable disability are warranted with evidence of the following: Flexion limited to 30 degrees (20 percent under DC 5260); Extension limited to 10 degrees (10 percent under DC 5261). Other DCs pertaining to the knee include DC 5256 (ankylosis), DC 5257 (recurrent subluxation, lateral instability, or patellar instability), DC 5258 (dislocation of semilunar cartilage), DC 5259 (removal of the semilunar cartilage), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). Whether applying the old or amended regulations, these disorders are not shown during the period on appeal, such that application of these DCs is not warranted. See, e.g., VA examinations dated January 2017, August 2019, and January 2020. Turning to the evidence, the Veteran underwent multiple VA examinations during the period on appeal. In January 2017, he described pain which required him to avoid running, kneeling, and squatting; sitting or standing for prolonged periods of time were also avoided.. The left knee was said to "give out" and "lock." Flare-ups were reported, which increased pain and the limitation of activities. Flexion was shown from zero to 120 degrees, and extension from 120 to zero degrees. Pain was noted on flexion and extension but did not contribute to functional loss; pain was also noted when the joint was used in non-weight bearing. There was objective evidence of pain with weight-bearing and tenderness on palpation of the joint or soft tissue. The Veteran could perform repetitive use testing without additional loss of motion or function. Pain, weakness, fatigability, and incoordination were not found to significantly limit functional ability over a period of time or during flare-ups. Slight lateral instability of the left knee was also noted. The Veteran next underwent examination in August 2019. At that time, he reported pain and instability with frequent "buckling" which limited ambulation, stair negotiation, and exercise. He showed flexion to 140 degrees with pain, and extension to zero degrees. Limited motion was not said to contribute to functional loss. Of note, the examiner offered conflicting responses as to whether pain contributed to additional loss of motion or functional impairment. Moderate pain to palpation was observed with the medial joint line. Moderate recurrent subluxation was noted, but lateral instability was denied. A meniscal tear, episodes of joint pain, and crepitus were also documented. An addendum opinion was provided in October 2019 to address the prior examination's deficiencies. Therein, the examiner noted that pain could significantly limit functional ability during flare-ups and with repetitive use over time. In terms of additional loss of motion, further activity limitations were noted with pain and flare-ups, estimated as an additional 20 degree loss in flexion. The Veteran most recently underwent evaluation in January 2020. At that time, he described pain while navigating stairs, a "clicking" or "popping" sound, decreased range of motion, stiffness, swelling, and the knee "giving away" or locking in place. Pain was managed with gel, injections, and medications. Functional loss was reported as the inability to flex the knee or engage in prolonged sitting or standing. Initial range of motion testing showed flexion from zero to 110 degrees and extension from 110 to zero degrees. There was objective evidence of pain on passive range of motion testing and during non-weight bearing, and was reported to contribute to functional loss. The Veteran could perform repetitive-use testing without additional loss of motion. Pain, weakness, fatigability, and lack of endurance were found to significantly limit functional ability with repetitive use over a period of time, but did not result in additional loss of flexion or extension. Flare-ups, recurrent subluxation, lateral instability, and recurrent effusion were denied. However, a meniscal tear and frequent episodes of "locking" were reported. The remaining evidence, including VA treatment records and lay testimony, reflect a similar disability picture as that assessed by the examiners. See, e.g., October 2017 NOD; April 2020 VA Form 9. Collectively, this evidence establishes a history of chronic and significant left knee pain which results in certain functional impairment, including difficulty ambulating and using stairs. Intermittent instability is also noted. The Veteran engaged multiple treatment methods to manage his symptoms, including gels, medications, and injections. Upon review of the evidence, the Board offers the following findings. First, a rating greater than 10 percent for left knee PPS with instability under DC 5257 from December 5, 2016, to September 30, 2019, is not warranted. Here, the evidence regarding the Veteran's history of subluxation and instability is hugely contradictory; the January 2017 examiner reported slight lateral instability only, whereas the August 2019 examiner reported only moderate recurrent subluxation. The Board has contemplated these examinations against the Veteran's extensive VA treatment records, which document intermittent episodes of instability but routinely deny subluxation in the left knee. In assessing the Veteran's disability picture as a whole, it is found that he demonstrated slight, but not moderate, instability throughout the period on appeal. It is apparent that he experienced intermittent instability which contributed to certain functional limitations, including difficulty with prolonged ambulation or navigating stairs. However, this symptom was neither classified as "moderate" in severity by a trained medical expert nor routinely documented throughout the Veteran's treatment records. There is also no evidence that this symptom resulted in moderate functional impairment, as the Veteran does not describe any history of related falls or injuries due to his instability. Additionally, the record is entirely devoid of evidence speaking to recurrent subluxation, as the sole instance of this symptom in the record is that documented in the August 2019 examination. However, this notation appears to be based on the Veteran's own reporting rather than objective evidence or medical evaluation, and is otherwise unsupported by the record. Thus, the weight of the evidence fails to reliably establish such moderate instability or subluxation as to award a higher rating on this basis. The appeal is denied to this extent. However, the Board does not find adequate justification for the termination of the 10 percent rating under DC 5257, effective September 30, 2019. Here, the Board acknowledges that the January 2020 VA examiner denied such a history in the Veteran. However, the accompanying evaluation report includes the Veteran's testimony that his knee "gives way," making it difficult for him to ambulate or navigate stairs. Layno, 6 Vet. App. at 469. His reporting as to instability is consistent throughout the record, as the Veteran repeatedly describes this symptom. See, e.g., March 2020 VA Form 9 (describing buckling and weakness). Critically, there is no evidence which tends to contradict such a history in the Veteran, including VA treatment records which clearly deny subluxation or instability. Upon the Veteran's competent and credible reporting, it is found that a 10 percent rating, but no higher, is warranted for left knee PPS with instability under DC 5257 from September 30, 2019, to the present. However, a higher rating than 10 percent is not warranted, whether under the old or amended criteria of DC 5257. Finally, the appeal seeking an initial rating greater than 10 percent for left knee PPS with painful motion under DC 5260 is denied. Critically, the Veteran did not demonstrate such limitation of motion as to warrant a higher rating under DC 5260 or a separate service-connected disability under DC 5261 at any time. Rather, he demonstrated initial range of motion far greater than that enunciated in the rating criteria; even with the presence of pain, on weight-bearing, or with repetitive use, the Veteran's flexion and extension were not so limited as to grant the appeal on this basis. See Correia v. McDonald, 28 Vet. App. 158 (2016). Although additional symptoms were consistently reported during VA examinations, including weakness, lack of endurance, and fatigability, there is no evidence that these symptoms resulted in further limitation of motion commensurate with the criteria identified herein or contributed to such a degree of functional impairment. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Rather, the nature and severity of the Veteran's symptoms are fully contemplated in the criteria for a 10 percent rating, including chronic pain productive of ambulatory impairment. This appeal is hereby denied. With respect to the increased rating appeals, the Board has considered the Veteran's position that higher ratings are warranted, including his testimony regarding the nature and severity of his symptoms. However, he lacks the medical expertise to competently identify a specific level of disability according to the applicable DCs. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Instead, greater probative value has been offered to the medical evidence in assessing the severity of the Veteran's disabilities during the periods on appeal, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran's disabilities and had sufficient facts and data on which to base their conclusions. In this respect, the Board finds that the medical evidence supports the determinations offered herein. [CONTINUED ON NEXT PAGE] Of final note, 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). J. O'CONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.