Citation Nr: 21040144
Decision Date: 07/02/21	Archive Date: 07/02/21

DOCKET NO. 13-19 164
DATE: July 2, 2021

ORDER

An initial rating in excess of 10 percent for limitation of motion of the left knee. prior to January 13, 2017, is denied.

An initial rating of 30 percent for limitation of motion of the left knee as of January 13, 2017, is granted.

An initial rating in excess of 10 percent for limitation of motion of the right knee prior to January 13, 2017, is denied.

An initial rating of 30 percent for limitation of motion of the right knee as of January 13, 2017, is granted.

A separate rating of 10 percent for limitation of extension for the right and left knees is granted.

A rating in excess of 10 percent for instability of the left knee is denied.

A rating in excess of 10 percent for instability of the right knee is denied.

Service connection for a back disability is denied.  

 

FINDINGS OF FACT

1. For the period prior to January 13, 2017, the Veteran's left knee is manifested by pain with normal range of motion.

2. From January 13, 2017, the Veteran's left knee is manifested by pain and limited motion with flexion to, at worst, 0 degrees and with extension to 0 degrees.

3. For the period prior to January 13, 2017, the Veteran's right knee is manifested by pain with normal range of motion.

4. From January 13, 2017, the Veteran's right knee is manifested by pain and limited motion with flexion to, at worst, 0 degrees and with extension to 0 degrees.

5. Throughout the period on appeal, the Veteran's left and right knees have been manifested by painful motion upon extension.

6. Prior October 11, 2018, the Veteran's left and right knee disability picture did not include recurrent or lateral instability.

7. From October 11, 2018, the Veteran's left and right knee disability is manifested as medial and lateral instability with joint stability testing of 1+ and

8. From February 7, 2021, the Veteran's left and right knees required a prescription by a medical provider for crutches without a ligament tear (sprain) or recurrent patellar instability or a history of surgical repair.

9. The preponderance of the competent and probative evidence does not tend to show that the Veteran's current back disability manifested to a compensable degree within one year of service, had its onset and has continued since service, was incurred as a result of his service-connected disabilities, or is otherwise etiologically related to service.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for limitation of motion of the left knee prior to January 13, 2017, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5260, 5261.

2. The criteria for a rating of 30 percent for limitation of motion of the left knee from January 13, 2017, onward, are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260, 5261.

3. The criteria for a rating in excess of 10 percent for limitation of motion of the right knee prior to January 13, 2017, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260, 5261.

4. The criteria for a rating of 30 percent for limitation of motion of the right knee from January 13, 2017, onward, are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260, 5261.

5. Throughout the period on appeal, the criteria for a separate rating of 10 percent, but no higher, for right and left knee (painful flexion) are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261.

6. Prior to October 11, 2018, the criteria for a compensable rating for instability of the left and right knees are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5257.

7. From October 11, 2018, the criteria for a rating in excess of 10 percent for instability of the left and right knees are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5257.

8. The criteria for entitlement to service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.304, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1974 to September 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

This appeal has been before the Board previously. In March 2018 the Board remanded the issues on appeal for additional development. Subsequently, in an August 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted a separate 10 percent rating for right and left knee instability effective October 11, 2018. In February 2021 the Board again remanded the issues on appeal because the examiner's opinion from the October 2018 VA knee examination was inconsistent with the Veteran's credible statements regarding flare-ups. Additionally, regarding the October 2018 VA back examination, the examiner stated that the disability existed prior to service, which it did not, and as such, it didn't answer the question in the Board directives. The Board directed the AOJ to obtain a new VA knee examination that addresses the Veteran's active and passive motion, pain with weightbearing and non-weightbearing, and degree of functional loss due to flare-ups. Further, the Board directed the AOJ to obtain a new VA back examination that addresses the in-service notations of back pain and aggravation by the Veteran's service-connected disabilities. After an April 2021 SSOC considered the record, these matters were returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as the Veteran was provided with a VA knee examination that addressed the Veteran's active and passive motion, pain with weightbearing and non-weightbearing, and degree of functional loss due to flare-ups. Furthermore, the Veteran was provided with a new VA back examination that addressed the in-service notations of back pain and aggravation by the Veteran's service-connected disabilities. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

While the appeals for increased ratings for the left and right knees were pending, an April 2021 rating decision granted an increased rating of 30 percent for the left and right knees, effective January 13, 2017. Although increased ratings were granted, the issues remain in appellate status as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).

Increased rating

Disability ratings are determined by applying the criteria set forth in the 

VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). 

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71(a) (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71(a) [or 4.73] criteria.").

However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes "additional functional loss i.e., 'the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance including as due to pain and/or other factors" or "reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995).

The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

1. An initial rating in excess of 10 percent for limitation of motion of the left knee.

2. An initial rating in excess of 10 percent for limitation of motion of the right knee.

3. A rating in excess of 10 percent for instability of the left knee.

4. A rating in excess of 10 percent for instability of the right knee.

Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. 

Under 38 C.F.R. § 4.71(a), DC 5257 covers "other impairment of the knee," and an assignment of a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. 

Additionally, DC 5258 covers dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint; this warrants a 20 percent rating. Finally, DC 5259 covers removal of symptomatic semilunar cartilage, which warrants a 10 percent rating.

Under DC 5260, leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71(a), DC 5260. 

Under DC 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating. Leg extension limited to 15 degrees warrants a 20 percent rating. Leg extension limited to 20 degrees warrants a 30 percent rating. Leg extension limited to 30 degrees warrants a 40 percent rating. Leg extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71(a), DC 5261.

A knee disability can be rated for both limitation of leg flexion under DC 5260 and limitation of leg extension under DC 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Additionally, General Counsel Opinion 9-98 directs that with respect to Diagnostic Code 5259, limitation of motion can be a relevant consideration so the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered.

The Board notes that, while this appeal was pending, VA published a final rule amending its regulations on musculoskeletal disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453, 76,463 (Nov. 30, 2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 85,523, 85,524 (Dec. 29, 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); see 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 both the old and new rating criteria, and the criteria that is more favorable to the Veteran will be applied.

Under the amended version of DC 5257 for recurrent subluxation or instability, 

a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (unrepaired, failed repair, or repaired) causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. 38 C.F.R. § 4.71a (2021).

The Veteran asserts that he is entitled to a higher rating for his left and right knees disability. Specifically, the Veteran contends that his knees constantly swell, he has ankylosis of extremely unfavorable inflexion at an angle of 45 degrees or more, and his knees go forward, backward, and side to side by themselves. See 9/24/2020 Form 9.

The record shows that the Veteran is currently rated at 10 percent (under DC 5260) for a left and right knee disability with an effective date of December 1, 2009, and a 30 percent rating with an effective date of January 13, 2017. Additionally, the Veteran is currently rated at 10 percent (under DC 5257) for left and right knee lateral instability with an effective date of October 11, 2018. The question for the Board is whether higher or separate ratings are warranted during the period on appeal.

Prior to January 13, 2017

For the period prior to January 13, 2017, the Board finds that a rating in excess of 10 percent for limitation of motion of the left and right knees is not warranted.

The relevant evidence reflects that the Veteran underwent a VA examination in November 2010. The Veteran reported bilateral knee pain, stiffness, tenderness, daily locking episodes, tenderness, and mild flare-ups on a weekly basis lasting for hours and precipitated by prolonged walking or ambulation. Additionally, 

the Veteran reported that he was unable to walk for more than a few yards and was only able to stand for 15 to 30 minutes. The objective physical examination showed that the Veteran had an antalgic gait and crepitus, bumps, and grinding of his bilateral knees. Additionally, the Veteran had pain with normal active range of motion and pain following repetitive motion, bilaterally. He used orthotic inserts and a cane. Finally, the examiner opined that the Veteran had no significant effects on his occupation; however, he had limitations performing his activities of daily living. See 11/12/2010 VA Examination.

Based on the above, the Board finds that a rating in excess of 10 percent for limitation of motion is not warranted prior to January 13, 2017. In this regard, 

the record generally showed that the Veteran has had normal range of motion, to include consideration of painful motion and upon repetitive motion. Compensable ratings under Diagnostic Codes 5260 and 5261 require limitation of flexion to 

45 degrees and limitation of extension to 10 degrees, respectively. The Veteran is in receipt of a 10 percent rating for painful motion under 38 C.F.R. § 4.59. Similarly, insofar as popping and grinding may be consistent with crepitus, those manifestations are contemplated by § 4.59. See Lyles v. Shulkin, 29 Vet. App. 107, 119 n.8 (2017). 

The Board acknowledges the above-mentioned Veteran's contentions that his knees constantly swell, he has ankylosis of extremely unfavorable inflexion at an angle of 45 degrees or more, and his knees go forward, backward, and side to side by themselves. See 9/24/2020 Form 9. Additionally, the Board acknowledges the Veteran's contentions that due to his disability he experiences difficulty with prolonged squatting, walking, and stair climbing. See 3/22/2021 C&P Examination. However, the weight of the evidence does not support a finding that the Veteran's disability picture due to functional loss/limitations or flare-ups is more nearly approximated by a higher rating for the period prior to January 13, 2017. With consideration the Deluca and Mitchell factors, and the evidence of record, the Board finds that for the period prior to January 13, 2017, the current 

10 percent ratings already compensate the Veteran for any functional loss due to pain affecting his bilateral knees. Deluca, 8 Vet. App. at 204-07. The Board finds that the Veteran's pain is contemplated and compensated by the current 10 percent rating that considers factors, such as pain on movement. In light of the foregoing, the Board finds that an increased rating based on limitation of motion is not warranted for the period prior to January 13, 2017.

The Veteran notes that Veteran mentioned that VA and or examiner forgot to note his limping and constant swelling. 9/24/2020 Form 9. The Board finds that the Veteran's limping is contemplated and compensated by the staged and separate ratings for the Veteran's knees as well as his service-connected left and right ankleswhich are not currently before the Board. The Veteran also raised secondary service connection for his back due to his knees.  This issue is on appeal and is address below.

From January 13, 2017

For the period since January 13, 2017, thereafter, the Board finds that a rating of 

30 percent is warranted.

The Veteran underwent a VA examination in January 2017. The Veteran reported flare-ups where he would have difficulty walking. The objective examination showed that the Veteran had normal extension and his flexion was limited to 

75 degrees on his right knee, and normal extension and his flexion was limited to 80 degrees on his left knee. The Veteran also had pain with flexion and extension. Additionally, the examiner noted no additional loss of function or range of motion after three repetitions. Further, the Veteran also had normal strength and no atrophy, effusion, tenderness, ankylosis, or instability. The Veteran used a cane regularly. The examiner reported that he was unable to say without mere speculation if pain, weakness, fatigability, or incoordination limit the Veteran's functional ability with repeated use or flare-ups. Finally, the examiner opined that the Veteran was unable to stand for long periods of time and had difficulty climbing stairs. See 1/13/2017 C&P Examination. Additionally, the Veteran asserted that the examination was inadequate for adjudication purposes since his disability was more severe than reflected in the examination. See 2/22/2017 Form 9. However, the Boards finds part of this examination to inadequate since it does not include all the required testing pursuant to 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158 (2016). However, it still does provide useful evidence to assist in formulating the disability picture of the Veteran's knees and to this extent it will be considered.

In October 2018 the Veteran underwent another VA examination. Regarding flare-ups, the Veteran reported having daily flare-ups that last for hours. As functional loss, the Veteran reported loss of ambulation and standing tolerance. The objective examination showed normal extension and his flexion was limited to 70 degrees of the right knee, and normal extension and his flexion was limited to 80 degrees of the left knee. The Veteran also had pain with flexion and lateral and medial instability of his bilateral knees. Additionally, the Veteran had tenderness and crepitus, and the examiner noted no additional loss of function or range of motion after three repetitions. Further, the Veteran had normal muscle strength and no muscle atrophy, ankylosis, or history of recurring subluxation, or recurrent effusion. The Veteran used crutches constantly. The examiner reported that he was unable to say without mere speculation if pain, weakness, fatigability, or incoordination limit the Veteran's functional ability with repeated use or flare-ups. Finally, the examiner noted that the Veteran had no functional impact. See 10/11/2018 C&P Examination. However, the Boards finds this examination inadequate since the examiner did not estimate the Veteran's functional loss due to flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). However, like the 2017 examination report, it still does provide useful evidence to assist in formulating the disability picture of the Veteran's knees and to this extent it will be considered.

The most recent VA examination was performed in March 2021. Regarding flare-ups, the Veteran reported functional loss due to daily flare-ups with prolonged walking, climbing of stairs, and squatting. In addition, the Veteran reported no history of instability, recurrent subluxation, or frequent effusion. The objective examination showed normal extension and his flexion was limited to 90 degrees, which caused difficulty with prolonged walking with the right knee, and normal extension and his flexion was limited to 90 degrees, which caused difficulty with prolonged walking with the left knee. The Veteran also had pain with flexion and extension in weight and non-weight-bearing, and active and passive motion. 

The examiner noted no additional loss of function or range of motion after three repetitions. Additionally, the examiner noted that pain significantly limited the Veteran's functional ability with repeated use over a period of time; his flexion was limited to 70 degrees. Further, the examiner noted that pain significantly limited the Veteran's functional ability with flare-ups; his flexion was limited to 0 degrees. In addition, the Veteran had objective evidence of crepitus and tenderness, and no muscle atrophy, joint instability, or ankylosis. The Veteran used a brace and cane regularly. Finally, the examiner noted as functional impact that the Veteran had difficulty stair climbing and with prolonged walking. See 3/22/2021 C&P Examination. The Board finds the VA examination to be adequate for rating purposes, as it is based on in-person examination of the Veteran, objective testing, and medical expertise.

After review of the competent and probative evidence, the Board finds that a rating of 30 percent for limitation of motion is warranted from January 13, 2017, thereafter. During that period, the Veteran has had at worst flexion limited to 

0 degrees. The Board acknowledges the above-mentioned Veteran's contentions that his knees constantly swell, he has ankylosis of extremely unfavorable inflexion at an angle of 45 degrees or more, and his knees go forward, backward, and side to side by themselves. See 9/24/2020 Form 9. Additionally, the Board acknowledges the Veteran's contentions that due to his disability he experiences difficulty with prolonged squatting, walking, and stair climbing. See 3/22/2021 C&P Examination. The Board has considered whether a separate rating under 

DC 5258 is warranted, but the 2018 and 2021 examination reports weigh against a separate rating as they affirmatively indicate no history of effusion. Furthermore, the Veteran's notations of his knee moving side-to-side is contemplated by the separate rating for instability, which is discussed next.

The Veteran has had no less than 0 degrees extension (noncompensable per 

DC 5260) during the period on appeal as shown on the examination reports detailed above. However, the record shows that the Veteran has had painful motion under DC 5260 as documented upon the 2010, 2017, and 2021 VA examination reports. Meanwhile, the 2018 examination report reflect that the Veteran had pain upon only flexion of the left and right knees. Accordingly, pursuant to 38 C.F.R. § 4.59 and with resolution of doubt in the Veteran's favor on this material issue, 

the Board assigns an initial (minimum compensable) rating of 10 percent for limitation of extension for the right knee. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that painful motion warrants the assignment of the minimum compensable rating for limitation of motion of the affected joint). A higher rating is not warranted as the Veteran's extension has not been shown to be limited to 

15 degrees or less, to include due to pain, at any time during the appeal period.

Moreover, the Board finds that a rating in excess of 10 percent for slight instability of the left and right knee is not warranted. As just noted, the Veteran stated that his knees go forward, backward, and side to side by themselves. See 9/24/2020 

Form 9. In this regard, DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability and the Board cannot find objective medical evidence is automatically more probative than lay evidence. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).

Prior to October 11, 2018, a compensable rating under DC 5257 is not warranted. In support, the 2010 VA examination report show no left or right knee instability reported or upon physical examination. Similarly, the 2017 VA examination report reflects no history of recurrent or lateral instability and joint stability testing revealed normal anterior, posterior, medial, and lateral instability. Given the tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are afforded high probative value. As such, the probative and competent evidence tends to weight against a compensable rating prior to October 11, 2018.  

As alluded to above, an August 2020 rating decision granted a separate rating for left and right knee instability from October 11, 2018, based on a Knee and Lower Leg Conditions Disability Benefits Questionnaire of the same date. The October 2018 report showed medial and lateral instability upon joint stability testing of 

1+ (0-5 millimeters). The Board finds that the competent and probative evidence does not tend to support a rating in excess of 10 percent from this date forward. The 2018 report reflects no anterior or posterior instability of either knee. It also does not reflect greater levels of medial or lateral instability, such as to the level of 2+ (5-10 millimeters) or 3+ (10-15 millimeters). As above, the Board places finds the instability tests to be very probative and places much weight on them as they were performed by medical professional for the purpose of assessing stability. Further, this report nor the 2021 examination report does not reflect a history of recurrent subluxation.  For these reason, the Veteran's left and right knee instability disability picture is not more nearly approximated by the next-higher rating. 

Additionally, ratings higher than 10 percent for instability, however, is not warranted under DC 5257 effective in February 2021. The March 2021

 VA examination report indicated that the Veteran requires a prescription by a medical provider for crutches. However, this report does not reflect that there has been a ligament tear (sprain) or recurrent patellar instability in either knee. 

As such, this competent and probative evidence tends to weigh against an increased rating under the revised DC 5257.

Finally, ratings under 5256, 5259, 5262, and 5263 are also not warranted as the Veteran, per the examination reports discussed above, does not have ankylosis, a history of semilunar cartilage condition, an impairment of the tibia and fibula, or genu recurvatum.

5. Service connection for a back disability

Service Connection

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain chronic diseases, including arthritis, will be considered incurred in service if manifest to a degree of ten percent within one year of service. 38 C.F.R. §§ 3.307, 3.309(a).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing service connection for the chronic diseases listed in Section 3.309(a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; 

(2) evidence of post-service continuity of the same symptomatology; and 

(3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997).

The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990).

The veteran contends service connection for a back disability that began in service. See 12/1/2009 VA 21-4138. Alternatively, the Veteran asserts that he has a back disability that was caused or aggravated by his service-connected left ankle and bilateral knee disabilities. See 2/22/2017 VA Form 9; see also 9/24/2020 Veteran Statement.

At the outset, the Board notes that the Veteran was diagnosed with lumbar spondylosis. See 11/12/2010 VA Examination, at page 11. Therefore, the first element of service connection is met. The Board will now analyze whether service connection is warranted by analyzing the second and third elements of service connection.

As to the second element of service connection, the Veteran asserted that his back disability was due to his service-connected right ankle and bilateral knees disabilities. The Veteran's service treatment records showed two instances where he complained of low back pain and was diagnosed with a muscle sprain. See 7/15/2016 STR  Medical, at pages 17 and 22. Additionally, he asserts that his back disability was due to an in-service trauma. See 12/1/2009 VA 21-4138; see also 2/27/2013 VA 21-4138; 6/24/2013 Form 9. The Veteran is service connected for a right ankle disability and a bilateral knee disability. Thus, the second element of service connection has been met.

The question before the Board therefore becomes whether there is a so-called "nexus" between the Veteran's current seizure disorder and service.

 

After reviewing the relevant medical and lay evidence, the Board finds that the competent and probative evidence tends to weigh against a finding that the Veteran's back disability is related to service or proximately due to or aggravated by a service-connected disability.

The Veteran underwent a VA spine examination in November 2010. At the conclusion of the examination, the examiner opined that the Veteran's back disability was less likely than not related to the service-connected right ankle disability. See 11/15/2010 VA Examination. However, the Board finds this opinion inadequate. The examiner merely stated that the Veteran's disability was likely due to aging and did not provide additional rationale or opined about this Veteran's specific medical record. Additionally, the examiner did not provide a direct service connection opinion. Thus, the Board affords this opinion no weight.

An additional VA examination was afforded in January 2017. At the conclusion of the examination, the examiner opined that the Veteran's back disability was less likely than not related to his service-connected disabilities or incurred in service. As rationale, the examiner stated that the Veteran's service treatment records did not show a diagnosis for lumbar spondylosis. See 1/13/2017 C&P Examination. The Veteran contends that the VA examination is inadequate for adjudication purposes. See 2/22/2017 Form 9. The Board agrees as the opinion is unclear whether the examiner considered if the Veteran's August 1976 and November 1977 treatment for lumbar spine pain resulted in the development of lumbar spondylosis post-service. Thus, the Board affords this opinion little weight.

In October 2018, a VA thoracolumbar examination was conducted. At the conclusion of the examination, the examiner provided a negative nexus opinion. See 10/11/2018 C&P Examination. However, the Board finds this opinion inadequate. When the examiner responded to the question of aggravation, the examiner stated that the Veteran's back disability "clearly and unmistakably existed prior to service," which it did not. The examiner's statement is erroneous and does not adequately answers the question posed by the March 2018 Board remand directives. This error was the basis for the Board's February 2021 remand. Thus, the Board affords this opinion no weight.

The most recent VA examination was performed in March 2021 by a physician. The Board finds the March 2021 VA opinion of the physician to be highly persuasive and worthy of weight regarding the issue of whether the Veteran's current back disability is related to service. The VA examiner opined that the Veteran's current back disability is less likely as not related the Veteran's service-connected disabilities or to an in-service injury, event, or disease. Specifically, 

the examiner indicated that the in-service lumbar strain was acute and transitory without sequela since there was no evidence of continuity of chronicity in the first year after service or current evidence of muscle strain. Additionally, the examiner stated that the back disability was diagnosed in 2010 and diagnostic imaging showed non-traumatic lumbar spondylosis as seen in the normal progression of the aging process. Further, the examiner noted that there was no evidence of an aggravation of the lumbar condition since it was diagnosed. Finally, the examiner opined that the lumbar spine, left ankle, and bilateral knee joints are three different anatomical entities with different bony structures and nerve supplies that are unrelated to each other by anatomy and by pathophysiology. Based on this, 

the Board finds that the rationale is logically supported, based on familiarity with the Veteran's relevant medical history, and deserves weight.

Additionally, the Board places great probative weight on the VA opinion in this case, as it is consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran's specific disability picture, to include consideration of relevant facts such as the details in the service treatment records, such as the August 1976 and November 1977 treatment for lumbar spine pain, and the post-service medical record. 

See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (stating that a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole and in the context of the evidence of record). Furthermore, there are no contrary medical opinions of record.

The Board also acknowledges the Veteran's assertions that he has suffered from back pain and has continued treatment for it since service. See 9/24/2020 Form 9. He is certainly competent to report symptoms such as pain. However, he is not competent to attribute any particular symptoms, including pain, as the onset of arthritis. Therefore, his opinions on the etiology of his current back disability are not competent and lack probative weight. The competent medical evidence, such as the March 2021 medical opinion, stated that the diagnostic imaging showed that the Veteran's disability is due to the normal aging process. As discussed above, 

the Board finds this opinion to be probative of an onset of arthritis years after service and deserving weight as there is a supporting rationale why, to include reference to relevant facts in the record.

Additionally, the absence of post-service findings, diagnosis, or treatment for many years after service is a factor that tends to weigh against a finding of continuous bilateral knee symptoms after service separation. See Buchanan v. Nicholson, 

451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection).

With regard to presumptive service connection, there is no probative, competent evidence of record that the Veteran's back disability manifested to a compensable degree within one year of the Veteran's discharge from service in 1978. 38 C.F.R. § 3.307(a), 3.309(a). Instead, the probative evidence of record shows that the Veteran was not diagnosed with lumbar spondylosis until November 2010, 

well beyond the presumptive period. See 11/12/2010 VA Examination, at page 18. Buchanan, 451 F.3d at 1336-37; Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). As such, presumptive service connection is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

 

In sum, service connection for a back disability is not warranted on any basis. 

As the preponderance of the evidence is against the claim, reasonable doubt does not arise, and the claim is denied. 38 U.S.C. § 5107(b). 

 

 

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.F., 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.