Citation Nr: 22019486 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 16-15 462A DATE: April 1, 2022 ORDER Entitlement to service connection for a left knee disability, to include degenerative joint disease (DJD), status post medial meniscectomy, is denied. Entitlement to service connection for a right knee disability, to include arthritis, is denied. Entitlement to a 40 percent rating, but no higher, for a low back disability prior to January 9, 2020, is granted. FINDINGS OF FACT 1. The Veteran's left knee DJD, status post medial meniscectomy, is not etiologically related to service. 2. The Veteran's right knee condition, to include arthritis, is not etiologically related to service. 3. Throughout the period on appeal, the Veteran's low back disability has been manifested by forward flexion of the thoracolumbar spine 30 degrees or less. It has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability, to include degenerative joint disease (DJD), status post medial meniscectomy, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a right knee condition, to include arthritis, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to a 40 percent rating, but no higher, prior to January 9, 2020, for a low back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to October 1968. He appeals an April 2013 rating decision denying entitlement to service connection for bilateral knee conditions and a February 2016 rating decision granting entitlement to service connection with an initial 10 percent rating. During the period on appeal, the Veteran was granted a 20 percent rating for his low back disability effective May 3, 2017, in a November 2017 rating decision, and 40 percent effective January 9, 2020, in a July 2020 rating decision. In a May 2021, decision, the Board denied entitlement to a rating in excess of 40 percent since January 9, 2020, but remanded the earlier ratings for additional development. As an initial matter, the Board notes that in November 2017, service connection for radiculopathy of the bilateral lower extremities, as secondary to the Veteran's back disability, was granted. The Veteran has not submitted disagreement with the assigned ratings for his service-connected radiculopathy in the bilateral lower extremities. Indeed, the instant claim was the subject of a Joint Motion for Partial Remand (JMPR) in July 2019 and the issue was not raised. Therefore, the propriety of those initial ratings will not be discussed herein. The Board also notes that the Veteran's low back increased rating claim has been remanded three times previously by the Board, to include once as part of a Joint Motion for Partial Remand via the Court of Appeals for Veterans Claims. On each occasion, remand was warranted to obtain a medical opinion regarding the period prior to May 3, 2017. Specifically, the examiner was asked to provide an opinion regarding the impact of the Veteran's flare-ups during that period, including as much information as possible concerning the frequency, duration, characteristics, severity, or functional loss from the Veteran's flare-ups of back symptoms during that period. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Five separate medical opinions were obtained in January 2020, May 2020, August 2020, October 2021, and January 2022. On each occasion the examiner failed to respond to the question answered. Indeed, the first two opinions offered redundant opinions regarding entitlement to service connection and the following two opinions failed to make any estimations regarding additional functional loss due to flare-ups during the time period in question. Only the January 2022 VA examiner predicted a 5-degree loss with all motions due to flare-ups with regard to the May 2017 VA examination. However, no opinion regarding additional functional loss due to flare-ups prior to that date was offered. Considering the foregoing, the Board finds that remand for a sixth VA medical opinion would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (remands to accomplish actions that would impose unnecessary additional burdens on adjudication resources, with no benefit flowing to the Veteran, are to be avoided.) Accordingly, the Board will proceed with adjudication of the claim, taking into consideration VA's failure provide an adequate examination when resolving all doubt in favor of the Veteran. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by 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), 3.304, 3.307, 3.309, 3.310. Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310 (2017). 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. The Veteran contends that his bilateral knee conditions are attributable to active service. To be specific, he argues that his knee conditions are related to a multitude of parachute jumps in-service and/or have been aggravated by his service-connected lumbar spine disability. After a review of the evidence, the Board finds that service connection is not warranted for either knee. A review of the Veteran's service treatment records (STR's) reveals treatment for a soft tissue injury to the left thigh during service in the Republic of Vietnam. No further treatment for a lower left extremity condition is noted. Upon separation, it is conspicuously noted that his left leg remains asymptomatic from the injury. He was diagnosed with DJD of the left knee in August 2012. A thorough review of the record does not show a current right knee diagnosis. After x-ray images of the left knee were taken in May 2014, "postoperative changes right knee" is noted. However, this is clearly a typographical error in the context of a left knee examination. The Board observes that although bilateral knee pain is noted on a single occasion in April 2018, the Veteran asserted in August 2016 that his right knee is in "perfect" condition. The Veteran reports that his knees began to hurt during Parachute School and continued to hurt after service. However, no treatment for any knee conditions is of record between the Veteran's separation from active service in 1968 and his diagnosis of left knee arthritis in 2012, over 40 years later. The Veteran contends that he underwent left knee surgery in 1975. Such records are not contained in the record. Consequently, such a large gap in treatment does not demonstrate continuity of symptomatology since active service regarding either knee. The Board recognizes the Veteran's statements regarding his history of knee symptoms. Although he is competent to testify about observable symptomatology, such as pain, he is not competent to determine such symptoms are manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the unsubstantiated statements regarding the continuity of symptoms since service are found to lack competency. Based on the foregoing, continuity of symptomatology since service has not been established based on the clinical evidence of record or the Veteran's statements. As to nexus, the Veteran was afforded a VA examination in August 2012. The examiner opined that it was less likely than not that the Veteran's left knee disability was related to active service. The examiner reasoned that if the Veteran had a left knee meniscal condition during service, there is high degree of medical certainty that it would have remained symptomatic or flared up during service. He was afforded another VA examination in January 2016. On this occasion, the examiner agreed that it was less likely than not that the Veteran's left knee arthritis was related to active service. After a review of the claims file, the examiner explained that although the Veteran had an injury to his left leg during service, at the time of his separation physical in 1968, the examining provider documented that the Veteran's left leg was no longer symptomatic. In addition, he reported at his August 2012 VA examination that he had arthroscopic surgery of the left knee in 1975, but there is no mention of the circumstances and no preoperative records available for review. In fact, the earliest imaging of the left knee was performed in 2012, over 40 years after discharge. In conclusion, because there was no evidence of chronic lower extremity problem in the STR's, and his degenerative disease diagnosis is first recorded in 2012, it is less likely than not that the Veteran's left knee condition was incurred in military service. The examiner added the obvious caveat that if records related to the alleged 1975 surgery existed, the opinion may be altered. VA made several reasonable attempts to obtain medical records related to the Veteran's claimed 1975 surgery from the West Covina Medical Center. In August 2020, VA was notified by West Covina Medical Center that they did not have any records regarding the Veteran's 1975 left knee surgery. As such, medical evidence that may be relevant to the Veteran's claim is unavailable for review. Based on the foregoing the Board finds the August 2012 and January 2016 VA examination adequate as they are based on all available medical evidence. The Veteran was afforded another VA examination in October 2021. On this occasion, the VA examiner opined that neither the Veteran's left knee arthritis nor his claimed right knee condition was at least as likely as not related to active service. Specifically, the examiner opined that neither knee condition is related to any incident of active service, to include parachute jumps and a left leg injury, but also that neither knee condition is proximately due to the Veteran's service-connected lumbar spine disability and residuals. The examiner reasoned that if the Veteran's knees were as disabling as reported after service, whether due to an incident in service or his service-connected back disability, then he would not been able to become a police officer, much less perform the duties required of a police officer for decades until retirement. The Board affords significant weight to the VA medical opinions of record. Each was rendered by a qualified medical professional after review of the claims file and application of the facts to current medical knowledge. Again, the Board recognizes the statements from the Veteran, regarding the relationship between his claimed disabilities and active service. Nevertheless, he is not competent to provide a nexus opinion in this case; these issues are medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Id. Therefore, the unsubstantiated statements regarding the etiology of the Veteran's claimed knee disabilities are found to lack competency. Based on the foregoing, the Board finds that a nexus has not been established in this case. To summarize, the weight of the evidence weighs against finding that either of the Veteran's claimed knee disabilities are related to any incident of active service or proximately due to his service-connected back disability. As the weight of the evidence is against the claim, the benefit of the doubt rule is inapplicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for either knee, and the claim is denied. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). 1. Entitlement to a rating greater than 10 percent for a low back disability prior to May 3, 2017, and greater than 20 percent prior to January 9, 2020 The Veteran seeks a higher rating for his low back disability. After a review of the evidence, the Board finds that a 40 percent rating, but no higher, is warranted throughout the period on appeal. The Veteran's lumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243. The following ratings are available: A 10 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or where the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; or where there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or where there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where muscle spasm or guarding is 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 limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The Veteran was afforded a VA examination in August 2012. At the time, entitlement to service connection for the Veteran's low back disability had yet to be established. As the examination was tailored to entitlement to service connection for a low back condition, the severity of the condition was not adequately addressed. Initial range of motion measurements were as follows: 90 degrees forward flexion, 15 degrees extension, 25 degrees on both right and left lateral flexion, and 30 degrees on both right and left lateral rotation. The Veteran reported flare-ups, but the examiner did not offer an estimation of additional functional loss in terms of degrees. As a result, information vital to the Veteran's claim was not obtained. The examiner did note that the condition had persisted since its onset, though no indication of worsening or improvement over time was mentioned. The Veteran was awarded service connection for his low back in February 2016 with an initial 10 percent rating. Upon filing his notice of disagreement (NOD) in August 2016, he asserted that he was entitled to at least a 20 percent rating, indicating that his low back condition was worse than as reported at the August 2012 VA examination. In May 2017, he was afforded another VA examination. On that occasion, initial range of motion measurements were as follows: 60 degrees forward flexion, 15 degrees extension, 15 degrees right lateral flexion, 20 degrees left lateral flexion, and 15 degrees on both left and right lateral rotation. Indeed, markedly less forward flexion was reported than was noted at the August 2012 VA examination. Unfortunately, although the Veteran still reported flare-ups resulting in additional loss of range of motion, the May 2017 examiner did not offer an estimation of such loss in degrees as required. See Sharp, 29 Vet. App. at 26. Hence, it is still unclear to what extent the Veteran's flare-ups have resulted in additional functional loss. In January 2020, the Veteran underwent another VA examination to assess the severity of his low back disability. On that occasion, initial range of motion measurements were as follows: 20 degrees forward flexion, 5 degrees extension, 15 degrees on both right and left lateral flexion, and 20 degrees on both right and left lateral rotation. Based on this examination, the Veteran was granted a 40 percent rating effective the date of the examination. The Board acknowledges that the evidence strongly indicates that the Veteran's low back disability has worsened over time. However, without adequate examinations to refer to, any estimation of functional loss due to flare-ups prior to the January 2020 examination would be pure speculation. Thus, after resolving all doubt in favor of the Veteran, the Board finds that the January 2020 VA examination is the best representation of the Veteran's level of disability throughout the period on appeal. However, at no time during the appeal period does the evidence show unfavorable ankylosis of the entire thoracolumbar spine, functional or otherwise. In October 2021, the Veteran reported that his back pain is so debilitating that he has to "take it easy" for a day or two by resting in his recliner. However, there is no indication that he has ever been rendered completely immobile due to his low back disability. To summarize, after resolving all doubt in favor of the Veteran, the Board finds that a 40 percent rating, but no more, prior to January 9, 2020, is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, Associate Counsel