Citation Nr: 21040657 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 08-07 470 DATE: July 6, 2021 ISSUES Entitlement to service connection for a low back disability, to include as secondary to a service-connected disability. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected disability. Entitlement to a rating in excess of 10 percent for right knee limitation of motion. Entitlement to a total disability rating based on individual unemployability (TDIU). ORDER Entitlement to service connection for a low back disability, to include as secondary to a service-connected disability, is granted. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected disability, is granted. Entitlement to a rating in excess of 10 percent for right knee limitation of motion (flexion) is denied. Entitlement to a separate 10 percent rating for right knee limitation of motion (extension) is granted. REMANDED Entitlement to TDIU is remanded. FINDINGS OF FACT 1. The Veteran's low back disability is at least as likely as not caused or aggravated by service and/or her service-connected right knee disability. 2. The Veteran's right hip disability is at least as likely as not caused or aggravated by service and/or her service-connected right knee disability. 3. The Veteran's right knee disability has been manifested by limitation of flexion to 60 degrees at its worst and extension to 10 degrees, at its worst, during flare-ups; symptoms of pain, locking and functional impairment. CONCLUSIONS OF LAW 1. Resolving the benefit of doubt in the Veteran's favor, a low back disability was incurred in and/or is related to a service-connected disability. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.310. 2. Resolving the benefit of doubt in the Veteran's favor, a right hip disability was incurred in and/or is related to a service-connected disability. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.310. 3. The criteria for a rating in excess of 10 percent for limitation of flexion of the right knee have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.40, 4.41, 4.59, 4.71a, Diagnostic Codes (DC) 5003- 5260. 4. The criteria for a separate 10 percent rating for limitation of extension of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.40, 4.41, 4.59, 4.71a, Diagnostic Codes (DC) 5003- 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1978 to July 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office. In February 2019, the Board denied, amongst other things, the Veteran's claims for entitlement to a rating in excess of 10 percent for right knee limitation and entitlement to service connection for degenerative arthritis of the lumbar spine and degenerative arthritis of the right hip. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which in a November 2019 Order and pursuant to a Joint Motion for Partial Remand (JMR), vacated a portion of February 2019 denial and remanded the case to the Board. The Board notes that the Veteran did not appeal the portion of the February 2019 decision which denied the claim for entitlement to a rating in excess of 20 percent, from April 27, 2012, for right knee medial-lateral instability. Further, this current decision does not disturb the Board's February 2019 grant of a 20 percent rating, from April 27, 2012, for right knee medial-lateral instability and 10 percent rating for symptomatic residuals of the removal of semilunar cartilage of the right knee. A claim for a total disability TDIU is part of an increased rating claim when such a claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, a claim of entitlement to a TDIU was raised by evidence of record which indicated that the Veteran may be unemployable due to the effects of his service-connected right knee disability. See August 2020 VA knee and lower leg medical opinion- disability benefits questionnaire. As the record now raises a question of whether the Veteran is unemployable due to his service-connected disabilities, a claim for a TDIU is properly before the Board. Service Connection 1. Entitlement to service connection for a low back disability, to include as secondary to a service-connected disability 2. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected disability The Veteran contends that he is entitled to service connection for a low back disability and a right hip disability as secondary to his service-connected right hip disability. For the reasons explained below, the Board finds that entitlement to service connection is warranted. In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy 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 or aggravated during service - the so- called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection is also available for disabilities that are proximately due to or the result of a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In a December 2017 medical opinion, the examiner opined that it was less likely than not that the Veteran's low back and right hip disabilities were secondary to his service-connected right knee disability. The examiner explained that the Veteran's gait abnormality was not significant enough to affect his low back or hip. He noted that the Veteran's advanced arthritis in his right hip was secondary to pistol grip deformity a congenital impingement of the hip and unrelated to the right knee disability. He also opined that the Veteran's right knee disability was secondary to aging. The December 2017 opinion inaccurately characterized the Veteran's right knee disability as secondary to aging instead of being service connected. Therefore, the Board remanded the matter for another opinion based on the correct factual premise. In an undated opinion (received in May 2020), Dr. R.S. (chiropractor) opined that it was as likely as not that the Veteran's back and right hip disability were secondary to his service-connected right knee disability. Dr. R.S. reasoned that the Veteran's right knee disability pre-dated his back and right hip disability and that the Veteran's knee disability caused a collapsing kinetic chain. He explained that the connection between the Veteran's knee, back and hip is based on the Veteran's decreased motion in his right knee. In a September 2020 opinion, a nurse practitioner opined that it was less likely than not that the Veteran's low back and right hip disabilities were secondary to his service-connected right hip disability. She reasoned that there was "no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb." Based on the foregoing, the Board finds that the Veteran's claimed low back and right hip disabilities are secondary to his service-connected right knee disability. In that regard, the Board attaches probative value to Dr. R.S.'s opinion which found that the Veteran's right knee disability caused the subsequent development of his low back and right hip disabilities. Dr. R.S. is a chiropractor and therefore is competent to express an opinion on the development of orthopedic disabilities. As the Veteran's treating doctor, he provided a well-reasoned opinion on the nexus between the service-connected disability and the claimed disabilities. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). On the other hand, the Board assigns less probative value to the September 2020 opinion, authored by a nurse practitioner. Unlike Dr. R.S., the nurse practitioner does not specialize in orthopedic disabilities. Although she admitted she conducted some research on the issues, her opinion is diminished slightly by her lack of expertise in the specialty. Further, she did not address the favorable opinion authored by Dr. R.S. as directed by the Board's May 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Resolving doubt in favor of the Veteran, the claims of entitlement to service connection for low back and right hip disabilities are granted. Increased Rating 3. Entitlement to a rating in excess of 10 percent for right knee limitation of motion The Veteran contends that he is entitled to a rating in excess of 10 percent for right knee limitation because he experiences symptoms of daily pain and flare-ups and functional impairment. See May 2007 Notice of Disagreement (NOD). For the reasons explained below, the Board finds that a separate rating is warranted for limitation of extension. Knee disabilities may be rated under several different diagnostic codes (DCs 5256 through 5263). Normal ranges of motion of the knee are to zero degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling. Unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling. Extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more is to be rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for symptomatic removal of the semilunar cartilage. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (zero percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04. (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (zero percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5263 provides a maximum 10 percent evaluation for genu recurvatum. VA's General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under DC 5260 and a compensable limitation of extension under DC 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disability includes both arthritis and instability. VAOPGCPREC 23-97 (July 1, 1997). It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Range of motion testing was performed during VA examinations in November 2006, April 2012 and December 2017, and was at worst limited to 60 degrees of flexion and 5 degrees of extension. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiner, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The worst-case range of motion referenced above, which was reported on the April 2012 VA examination, was significantly worse than the ranges of motion reported on all of the other evidence of record, including VA and private treatment records. Generally, range of motion was limited to 120 degrees for flexion and 0 degrees for extension, although several private treatment visits showed knee range of motion limited to 95 degrees of flexion and 0 degrees of extension. In the November 2019 JMR, the parties agreed that the Board relied on an inadequate medical examination. Specifically, the parties found that the December 2017 VA examiner did not opine "whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time." Therefore, the parties found that a remand was necessary to obtain a new VA examination report which addressed functional loss due to repetitive use over time. In May 2020, the Board remanded the matter to obtain an opinion on the matter. An August 2020 orthopedic surgeon note indicates that on passive range of motion, the Veteran was able to flex to 90 to 95 degrees and extend to 5 degrees. In an August 2020 opinion, the nurse practitioner opined that the Veteran's right knee pain could significantly limit the Veteran's functional ability." She explained that the Veteran's baseline limitations were flexion to 120 degrees and extension to 5 degrees. After repetitive use and/or a flare-up, the Veteran's flexion was decreased to 115 degrees and extension to 10 degrees. She noted that the Veteran suffered from symptoms of joint swelling; decreased strength; decreased range of motion; abnormality in gait and pain. "All of these abnormalities contribute to limited function in his right knee." The Veteran was afforded a VA knee examination in November 2020 where he reported continuous pain with activity. He endorsed episodes of flare-ups almost daily which lasted 1-2 hours. During the flare-ups, the Veteran stated that he experienced severe continuous pain, even without activity. He reported that his knee will completely give out causing him to fall down. He also reported difficulty sleeping due to pain. Range of motion testing revealed flexion from 5 to 120 degrees and extension from 120 to 5 degrees. The examiner noted that the Veteran experienced pain with weight bearing and pain that caused functional loss. There was also objective evidence of crepitus. Based on the foregoing, the Board finds that the Veteran is not entitled to an increased rating for his limitation of flexion, but is entitled to a separate rating for limitation of extension. In that regard, the Board credits lay and medical evidence which shows that the Veteran's flexion is limited to, at worst, 60 degrees (although in general the Veteran's flexion has mostly approximated 100 to 120 degrees). In order to be eligible for a compensable rating for limitation of flexion, there must be evidence of limitation to 45 degrees or less. Here, the Veteran is already in receipt of a 10 percent rating for limitation of flexion with due consideration of functional impairment. There is no evidence that his flexion meets the criteria for a higher rating under Diagnostic Code 5260 as there is no evidence of flexion limited to 45 degrees. The Veteran's extension has been limited to 5 degrees throughout the period on appeal which equates to a noncompensable rating under Diagnostic Code 5261. However, based on the August 2020 VA examination, the examiner noted that the Veteran's extension was limited to 10 degrees during a flare-up or with repeated use over time. A 10 percent rating is warranted for limitation of extension to 10 degrees. The Board will afford the Veteran the benefit of the doubt that during a flare-up his extension is limited to a compensable degree. That being said, there is no evidence to support a rating in excess of 10 percent for limitation of extension, which requires limitation of extension to 15 degrees. The Board has further considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.40 and 4.45 would warrant higher ratings. See DeLuca, 8 Vet. App. at 202. However, higher ratings for the Veteran's right knee are not warranted with consideration of these provisions. The Veteran's complaints of discomfort and pain have been considered and have been taken into account in the current rating assignments. REASONS FOR REMAND 1. Entitlement to TDIU is remanded. The Board has found that TDIU is part of this appeal. The Veteran has not received notice regarding that claim. In addition, he should be asked to complete a VA Form 21-8940 so that he can provide information concerning his employment, education, training, and other relevant factors. Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The matters are REMANDED for the following action: Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Baskerville, LaRita 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.