Citation Nr: 22012891 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 16-61 390 DATE: March 7, 2022 ORDER The claim for service connection for left knee strain (claimed as bilateral leg condition) is granted. The claim for service connection for a right leg condition (claimed as bilateral leg condition) is denied. The claim for a higher initial disability rating in excess of 10 percent for lumbosacral strain with arthritis is denied. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, his left knee strain disability began as a result of military service as a paratrooper. 2. The evidence of record persuasively weighs against finding that the Veteran had a right leg disability at any time during or approximate to the pendency of the claim. 3. The Veteran's lumbar spine strain with arthritis manifest by intermittent painful motion, forward flexion to 75 degrees, and localized tenderness without abnormal gait or spinal contour. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee strain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right leg disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a rating in excess of 10 percent for lumbar spine strain with arthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from January 1954 to August 1958. He died in September 2017 and the Appellant is his surviving spouse. The claim was remanded in October 2017 for additional development. Following the Veteran's death, his spouse was approved as a substitute Appellant in his claim. As such, the issues on appeal are continued herein. Increased Rating 1. Entitlement to service connection for left knee strain (claimed as bilateral leg condition) The Appellant contends that the Veteran incurred a left knee disability as a result of his service as a paratrooper. The Board concludes that the Veteran had a left knee disability that began during and as a result of his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A 2016 VA examination report shows that the Veteran had a current diagnosis of left knee strain. Although his service treatment records are unavailable, the Veteran and his spouse provided competent and credible reports that he was injured following a "bad [parachute] jump" where he landed hard on his feet, fell on his back, and lost consciousness. Thus, the question becomes whether the current disability is related to service. The Board acknowledges that the 2016 VA examiner concluded that the Veteran's left knee strain was more likely than not caused by his excessive weight rather than the reported in-service injury. However, the Appellant testified that the Veteran's left knee symptoms began during service and continued from that point forward, including well before he gained weight. The Veteran reported during the examination that he sought treatment in the 1970s and 1980s for the left knee and that his symptoms had continued since service. Resolving all doubt in the Veteran's favor, the Board finds the evidence to at least be in equipoise as to whether the Veteran's left knee strain began during and as a result of his military service. Accordingly, the Board finds that service connection for left knee strain is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a right leg condition (claimed as bilateral leg condition) The Appellant contends that the Veteran incurred a right leg condition as a result of his service as a paratrooper. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran had a current disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran did not have a current diagnosis of a right leg disability and did not have one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The 2016 VA examiner evaluated the Veteran and determined that he did not have a right leg disability. He noted that the Veteran specifically denied having right leg symptoms or disability, despite reporting the in-service injuries following his paratrooper service, and his X-rays were normal. The examiner stated that the right knee limitation of motion demonstrated upon exam was the result of the large calf and thigh size rather than any specific injury or disability causing limited motion. The medical treatment records in the claims file also do not demonstrate complaints, treatment, or diagnosis of a right leg disability. Therefore, while the Board acknowledges the Appellant's reports regarding the Veteran's right leg pain, the evidence of record, including his own statements to the VA examiner, do not support the finding of a right leg disability during the claim, prior to his death. Moreover, as the Federal Circuit held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" only if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. There is no medical or contemporaneous lay evidence consistent with the medical evidence which demonstrates a right leg disability that reached such a level. Consequently, the Board gives more probative weight to the 2016 VA examiner's findings and recording of the Veteran's reports. While the Appellant believes the Veteran had a current right leg disability, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. 3. Entitlement to an increased disability rating in excess of 10 percent for lumbosacral strain with arthritis The Appellant contends the Veteran's lumbar spine disability was more severe than rated. The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, the next highest rating, a 20 percent rating, is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. 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. § 4.71a; 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 § 4.71a criteria."). The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for lumbar strain with arthritis. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and lack of endurance. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that it hurt to bend over to put on his shoes, he could not lift more than 20 pounds, and that he needed to sit to relieve back pain after standing for 5 minutes would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. The 2016 VA examiner found that forward flexion was possible to 75 degrees and combined range of motion was possible to 225 degrees. The examiner noted that the functional loss was due to pain, that it was hard to pick up things off of the floor, but that it was not possible to express any additional loss of function in terms of loss of motion. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Ankylosis was not present upon examination and he was noted to be able to move his spine in all directions. The examiner stated that there was no radiculopathy present, no muscle atrophy, and full strength. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran did not have IVDS according to the medical records and the 2016 VA examiner and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Finally, there is no evidence of related neurological impairment, and the 2016 VA examiner specifically stated that there was no radiculopathy or other neurological impairment related to the service-connected lumbar spine disability. The Board acknowledges the Appellant's assertions that the Veteran experienced significant pain and required help doing anything that required him to bend over to the ground. Indeed, the Veteran reported such pain and difficulty during the 2016 VA examination. However, the examination did not demonstrate an inability to bend forward beyond 60 degrees. While the motion was painful, the Veteran reported that he was still able to pick things up off of the ground. He simply did things to make it so he did not have to because it was painful. The medical treatment and examination records as well as the Veteran's lay statements do not demonstrate that the Veteran's lumbar spine disability more nearly approximated a higher disability rating. As such, the Board gives more probative weight to the Veteran's lay statements and the 2016 VA examiner's findings. For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for lumbar spine strain with arthritis. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. B., 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.