Citation Nr: 21055638 Decision Date: 09/08/21 Archive Date: 09/08/21 DOCKET NO. 12-31 763 DATE: September 8, 2021 ORDER Entitlement to service connection for a left wrist osteoarthritis, secondary to service-connected left knee and left ankle disabilities is granted. Entitlement to a disability rating in excess of 10 percent for right wrist strain and status post ORIF right wrist fracture is denied. REMANDED Entitlement to a disability rating in excess of 20 percent for lumbar degenerative disc disease is remanded. Entitlement to a disability rating in excess of 10 percent for left knee strain for the period prior to April 1, 2020, and in excess of 20 percent thereafter is remanded. Entitlement to a disability rating in excess of 10 percent for left knee instability associated with left knee strain is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's osteoarthritis of the left wrist is proximately due to or the result of his service-connected left knee and left ankle disabilities. 2. The weight of the evidence is against a finding that the Veteran's right wrist strain and status post ORIF right wrist fracture has manifested as ankylosis of the wrist. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left wrist osteoarthritis, secondary to service-connected left knee and left ankle disabilities have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to a disability rating in excess of 10 percent for right wrist strain and status post ORIF right wrist fracture have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1973 to August 1977, and from January 1978 to January 1982. These matters return to the Board of Veterans' Appeals (Board) following a joint motion for partial remand (JMPR) by the Veteran and the Department of Veterans Affairs to the Court of Appeals for Veterans Claims (CAVC). Pursuant to the parties' JMPR, in February 2021 CAVC vacated a July 2020 Board decision that denied entitlement to service connection for a left wrist disability; an initial rating in excess of 20 percent for lumbar degenerative disc disease; an initial rating in excess of 10 percent for right wrist strain and status post ORIF right wrist fracture; a disability rating in excess of 10 percent prior to April 1, 2020, and in excess of 20 percent from April 1, 2020 onward for left knee strain (rated as limitation of flexion); an initial rating in excess of 10 percent for instability of the left knee; and a compensable rating for bilateral hearing loss. In their JMPR, the parties agreed that the Board had erred by adjudicating the lumbar spine, right wrist, left knee, and bilateral hearing loss claims in July 2020 despite having granted the Veteran's request for a 90-day extension in June 2020. The parties also agreed that the Board erred by adjudicating the Veteran's left wrist claim despite being on notice that the Veteran, through counsel, wished to obtain evidence in his file. The JMPR notes that the Veteran now deems this request to have been fully satisfied. The JMPR stipulated that VA was to wait 90 days to allow the Veteran to submit additional evidence and/or argument before adjudicating the Veteran's claims. 90 days has since passed, and adjudication of the Veteran's claims is therefore appropriate. As an initial matter, the Board must clarify the nature and scope of the left knee claims currently before it. Limitation of flexion and instability are rated separately, and thus constitute separate issues. 38 C.F.R. § 4.71a, diagnostic codes 5260 and 5257. The Veteran's left knee claims were before the Board in January 2017, at which time they were remanded for additional development. In May 2020 the agency of original jurisdiction (AOJ) granted the Veteran an increased rating of 20 percent for his left knee strain (limitation of flexion), effective April 1, 2020. As the highest possible rating was not assigned for the periods on appeal, the appeal continued. See AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, left knee claims related to both limitation of flexion and instability were the subjects of the appeal before the Board in July 2020, and before CAVC in February 2021. CAVC remanded both left knee claims to the Board. Subsequently, in May 2021, within the one year 1. Entitlement to service connection for a left wrist disability, secondary to service-connected left knee and left ankle disabilities, is granted. The Veteran's left wrist claim originates from a May 2010 rating decision that denied an October 2009 claim for service connection for, in pertinent part, a left wrist disability. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish secondary service connection, a Veteran must provide evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond its natural progression by a service-connected disability. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439, 446 (1995); 38 C.F.R. § 3.310. Laypeople are competent to report symptoms and experiences observable by their senses, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In adjudicating claims for VA benefits, the burden of proof only requires an "approximate balance" of the evidence for and against a claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is "unique" to the VA adjudicatory process, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). In evaluating a claim for disability benefits, 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. The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. A September 1992 private medical treatment note reflects that the Veteran was admitted to the emergency department and reported having fallen down a set of stairs. An October 2008 imaging study showed soft tissue swelling at the lateral aspect of the left wrist, and degenerative changes of the first metacarpal. A May 2019 VA examiner documented a 1992 diagnosis of chronic wrist sprain. An April 2020 VA examiner diagnosed the Veteran with, in pertinent part, osteoarthritis of the left wrist. The record reflects that service-connection has been in effect for left knee and left ankle disabilities since 2009. Accordingly, the Board concludes that the first two elements of secondary service connection have been satisfied, and the remaining question is whether the claimed left wrist disability is proximately due to or the result of the Veteran's service-connected left knee and left ankle disabilities. The May 2019 VA examiner conceded that the 1992 falls "could very likely have caused injury to the . . . left wrist"; however, the examiner concluded that there was no relationship between the 1992 fall and any current left wrist disability on the basis of a lack of continuously documented medical treatment in the intervening 17 years. In July 2021 VA received an opinion by a private medical provider. The July 2021 opinion reflects consideration of the Veteran's in-service and post-service medical history, to include reports by the Veteran that he had experienced continuous left wrist pain since the time of 1992 fall but had elected to tolerate the pain rather than seek treatment. The private medical provider opined that it was at least as likely as not that the Veteran's current left wrist disability is "a result of the left wrist injury suffered as a result of the 1992 falls, which in turn was a consequence of weakness and severe functional impairment of the Veteran's service-connected musculoskeletal conditions." The examiner noted that when "the normal mechanics of the wrist are disrupted . . . the instability of the carpal bones results in weakness, stiffness, chronic pain, and often arthritis if not treated appropriately" and that "early clinical and radiographic findings may be subtle." In light of the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran's left wrist osteoarthritis is the result of a fall caused by his service-connected left knee and left ankle disabilities. Accordingly, the criteria for service connection for left wrist osteoarthritis secondary to service-connected left knee strain and instability and left ankle degenerative arthritis are met, and the same is hereby granted. 2. Entitlement to a disability rating in excess of 10 percent for right wrist strain and status post ORIF right wrist fracture is denied. The Veteran's left wrist claim originates from a July 2017 rating decision that, in pertinent part, granted the Veteran service connection for right wrist strain and status post ORIF right wrist fracture and assigned an evaluation of 10 percent effective October 2009. The Veteran timely initiated and perfected an appeal of the July 2017 rating decision, seeking a higher initial rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The Veteran's right wrist disability is evaluated under diagnostic code 5215 (wrist, limitation of motion of). The highest available rating under 5215 is 10 percent. As a matter of law, no higher rating is available for the Veteran's right wrist strain and status post ORIF right wrist fracture. The Board has considered whether any other diagnostic codes would be appropriate to evaluate symptoms of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, no other relevant codes have been identified. In light of the foregoing, the Board finds that the criteria for a disability rating in excess of 10 percent for right wrist strain and status post ORIF right wrist fracture have not been met at any point during the period on appeal, and the same is hereby denied. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.71a. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for lumbar degenerative disc disease is remanded. In a July 2021 brief the Veteran, through counsel, contended that the Veteran experiences erectile dysfunction as a result of his service-connected lumbar degenerative disc disease. Private treatment records, received by VA in March 2020, reflect that the Veteran has been prescribed medication used to treat erectile dysfunction. Accordingly, a VA medical opinion should be obtained that identifies and evaluates all symptoms and complications of the Veteran's lumbar degenerative disc disease. 2. Entitlement to a disability rating in excess of 10 percent for left knee strain for the period prior to April 1, 2020, and in excess of 20 percent thereafter is remanded. A July 2017 rating decision granted the Veteran entitlement to service connection for left knee strain. The Veteran timely initiated and perfected an appeal, seeking a higher initial rating. During the pendency of that appeal, in a May 2020 rating decision, the agency of original jurisdiction (AOJ) granted the Veteran a 20 percent rating, effective April 1, 2020. As the highest possible rating had not been assigned for the period on appeal, the appeal continued. See AB v. Brown, 6 Vet. App. 35 (1993). A supplemental statement of the case (SSOC) was issued in May 2020 reflecting the status of the Veteran's left knee strain claim at that time. As discussed above, the Veteran's left knee strain claim was the subject of a July 2020 Board decision and February 2021 CAVC order. In May 2021 the Veteran filed a timely VA Form 20-0996, purportedly initiating a higher-level review process under the appellate procedures enacted through the Appeals Modernization Act (AMA). Under the pre-AMA "legacy" system withdrawals must include, inter alia, a statement that the appeal is withdrawn. 38 C.F.R. § 19.55. The record does not reflect any such statement. Accordingly, the May 2021 filing did not constitute a withdrawal of the Veteran's legacy appeal under legacy regulations. Under AMA regulations, a Veteran with a pending appeal under the legacy system may elect into the AMA system either by participating in the rapid appeals modernization program (RAMP) or by filing for a review option under the AMA system within 60 days of the issuance of an SSOC. 38 C.F.R. §§ 3.2400, 3.2500, 19.52. The record does not reflect either RAMP participation or an AMA review filing within 60 days of an SSOC. Accordingly, the Veteran's left knee strain claim remains pending before the Board. The Veteran was afforded a VA examination in relation to his left knee strain claim in April 2020. In the context of examinations evaluating functional loss in the musculoskeletal system under diagnostic codes based upon limitation of motion, when pain is associated with movement, to be adequate for rating purposes an examination must address whether pain could significantly limit functional ability during flare-ups. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011), DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Mere lack of occasion to observe the joint during a flare-up or after prolonged use is an insufficient basis for finding it speculative to respond. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). The April 2020 VA examiner recorded the Veteran's report that flare ups of the left knee are precipitated by prolonged standing, walking, and weather changes, and last 2 to 3 hours. The examiner stated that pain and/or lack of endurance significantly limited functional ability during flare ups and/or after repetitive use over time and stated that it could be described in terms of range of motion. However, the examiner went on to describe such limitations with range of motion measurements identical to the documented initial range of motion measurements. The Board cannot reconcile these conflicting findings and statements by the April 2020 examiner. Similarly, a January 2020 VA examiner documented that the Veteran denied flareups but recorded the Veteran's report of "intermittent" sharp pain in the left knee, along with swelling occurring after prolonged standing and walking. The Board cannot reconcile these conflicting findings and statements by the January 2020 VA examiner. A July 2020 VA examination records the Veteran's report of flare ups of his left knee disability, but does not reflect any attempt to evaluate the severity of the Veteran's left knee disability during said flare ups. Accordingly, the Veteran's left knee strain claim should be remanded to obtain a VA medical opinion regarding the severity of the Veteran's left knee pain throughout the period on appeal that is consistent with the CAVC holdings in Mitchel, DeLuca, and Sharp. 3. Entitlement to a disability rating in excess of 10 percent for left knee instability associated with left knee strain is remanded. Because evidence developed in the course of adjudicating the Veteran's claim to a disability rating in excess of 10 percent for left knee strain for the period prior to April 1, 2020, and in excess of 20 percent thereafter could significantly impact a decision on the issue of entitlement to a disability rating in excess of 10 percent for left knee instability associated with left knee strain the issues are inextricably intertwined and a remand is required. Further, the Board notes that new rating criteria for knee instability have been promulgated since the time of the Veteran's last VA examination for his left knee in April 2020. See 38 C.F.R. § 4.71a. Accordingly, the Veteran should be afforded a new VA examination to determine the severity of his left knee instability in terms consistent with the newly promulgated rating criteria. 4. Entitlement to a compensable rating for bilateral hearing loss is remanded. In July 2021 the Veteran, through a written brief submitted by counsel, contended that his bilateral hearing loss has worsened since the time of his last VA examination in January 2020. Accordingly, the Veteran should be afforded a new VA examination to evaluate the severity of his bilateral hearing loss. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the current severity of all symptoms of his left knee disability, to include limitation of range of motion and instability. The examiner shall indicate in the addendum report that the claims file, including this remand, was reviewed. The examiner's report should address the following: (a.) estimates the Veteran's functional loss in terms of additional loss of range of motion, if any, due to reported flare-ups and repeat use over time as required by 38 C.F.R. §§ 4.40, 4.45, as interpreted by CAVC in Sharp. Inform the examiner that the Sharp decision contemplated the absence of ideal clinical or laboratory conditions under which empirical observation might be made. Instead, all that is required is that an examiner consider the claimant's lay reports, the evidence of record, and the findings on examination and then make an estimate (even if speculative to an extent). The examiner is also free to state their level of confidence in the estimate given, on a scale of 1 to 5, with 5 being the most confident and 1 being the least; and (b.) addresses range of motion during both active and passive motion and weight bearing and non-weight-bearing; and (c.) identifies which of the following characterizations most closely approximates the degree of instability of the Veteran's left knee: Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. 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 diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Should the examiner maintain that they cannot provide the estimate of additional loss of range of motion during flare-ups or after repetitive use over time, then they must state whether it is due to the absence of the necessary training and experience in the medical community at large, or their personal lack of training and experience. If the former, a full explanation must be provided. If the latter, then the RO shall refer the claims file to an examiner with the requisite training and experience. The examiner should also opine as to whether their Sharp and Correia compliant test results, regarding both range of motion and instability, can be applied retrospectively. If the new Sharp and Correia compliant test results can be applied retrospectively, the examiner should specify how far back. If possible, the examiner should opine as to the Veteran's left knee range of motion and manifestations of left knee instability for the entire period on appeal. 2. Schedule the Veteran for an examination by an appropriate clinician to determine current severity of his lumbar degenerative disc disease, to include any complications thereof. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. 3. Schedule the Veteran for an examination by an appropriate clinician to determine current severity of his bilateral hearing loss. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. C. Sametshaw 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.