Citation Nr: 1749043	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  11-21 161A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for a left knee disability, to include as secondary to service-connected osteoarthritis of the right knee status-post injury (right knee disability).  

2.  Entitlement to a rating in excess 10 percent from August 12, 2009 to March 14, 2011 and a rating in excess of 20 percent since September 1, 2012 for service- connected right knee disability.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Russell Veldenz, Counsel


INTRODUCTION

The Veteran served on active duty from February 2002 to April 2002.

This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Board notes that from February 23, 2010 to March 31, 2010, from March 15, 2011 to April 1, 2012, and from April 23, 2012 to September 1, 2012, the Veteran received a temporary total disability rating (100 percent) for surgical convalescence related to his right knee.  As the Veteran received the highest rating possible for his right knee during these periods, they are excluded from the Board's analysis.  

During the pendency of the appeal, in an April 2013 rating decision, the RO increased the rating for the right knee from 10 percent to 20 percent, effective September 1, 2012.  The Veteran continued his appeal for a higher rating.  AB v. Brown, 6 Vet. App. 35, 38 (1993). 

In June 2016, the Board remanded the case to the RO for additional development.  As the requested development has been completed, no further action is necessary to comply with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDINGS OF FACT

1.  The Veteran's left knee disability was not caused or aggravated by military service or a service-connected disability.  

2.  At all relevant times, he Veteran's service-connected right knee disability has been manifested by locking, motion pain, normal extension, and limitation of flexion to 90 degrees at worst  

CONCLUSIONS OF LAW

1.  The criteria for establishing service connection for a left knee disability have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016).

2.  The criteria for a rating of 20 percent, but no higher, from August 12, 2009 to March 14, 2011 have been meet.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5257, 5258, 5260, 5261 (2016).

3.  The criteria for a rating in excess of 20 percent since September 1, 2012 for right knee osteoarthritis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5257, 5258, 5260, 5261 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In the September 2017 informal hearing presentation, the Veteran's representative noted that the Board's June 2016 remand directed the Veteran receive an orthopedic VA examination for his knees.  The subsequent July 2016 VA examination was performed by a medical doctor who is not an orthopedic surgeon.  The service representative argues that since an orthopedic physician did not conduct the VA examination, the Agency of Original Jurisdiction (AOJ) did not comply with the Board's remand.

The Board finds, however, the VA examination is adequate.  First, the remand did not direct the examination be performed by an orthopedic physician, but rather, the examination itself be an orthopedic knee examination as opposed to, for example, a vascular examination of the knee.  The Board's remand concerned itself only with the character or nature of the examination, not who conducted the examination.  If the Board felt the additional expertise of an orthopedic physician was needed, it would have specified that the examination be conducted by an orthopedic physician.  Stated another way, the Board finds that as long as the examination was an orthopedic examination, the medical issues did not necessarily require an orthopedic physician to provide the requested information. 

In this instance, an orthopedic examination was conducted and provided pertinent information that would assist the Board in deciding the Veteran's claims.  Further, the VA examiner has expertise in occupational medicine.   He provided opinions regarding the severity of the right knee disability and whether the left knee should be service connected, and did not indicate any question fell outside his area of expertise.  It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional.  Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) ("Viewed correctly, the presumption [of competence] is not about the person or a job title; it is about the process.").  As the service representative has not raised any further argument or objection regarding the VA examiner, the Board finds that the AOJ substantially complied with the Board's remand directive.  Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Service Connection for a Left Knee Disability

The Veteran asserts that he has a current left knee disability as a result of his military service or secondary to his service-connected right knee.  Specifically, he contends that he hurt his left knee during service and that favoring his right knee puts more stress on his left knee.  

Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, 1167 (Fed. Cir. 2004).  A disability that is proximately due to, the result of, or permanently aggravated by a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310.

Osteoarthritis was diagnosed in the July 2016 VA examination.  No other left knee disabilities were diagnosed during the course of the appeal or shortly before the Veteran filed the claim on appeal.  Thus, the remaining question is whether the left knee arthritis is related to the Veteran's military service or service-connected right knee.  

A March 2002 service treatment record reflects that the Veteran was treated for left knee pain after the Veteran complained of bilateral knee pain.  No other service treatment records note any complaints, treatment, or diagnosis regarding the left knee.  

Arthritis is not shown to be present during service or in the year following separation from service, thus, in-service incurrence cannot be presumed.  See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a) (2016).

An October 2009 VA examiner diagnosed a left knee strain and concluded that the Veteran's left knee strain was less likely as not related to the Veteran's right knee disability.  The examiner explained that there was no evidence of left knee pain or related treatment while in service.  The Board notes that this examiner is incorrect because as noted above, the Veteran complained at least once of left knee pain.  For this reason, the Board remanded the Veteran's claim in June 2016 for a new VA examination and nexus opinions.

In July 2016, the VA examiner was asked to address any relationship between service and the current left knee disability.  The examiner concluded that it was less likely than not that the current left knee arthritis was related to the knee complaint during service.  The examiner explained that the Veteran developed bilateral knee pain shortly after joining service, including a specific complaint involving left knee but there was no diagnosis.  While the Veteran complained of left knee pain over the years, X-rays in 2009 were normal.  Until the VA examination, the Veteran did not have a diagnosis of arthritis, which the examiner characterized as mild tricompartmental arthritis.  Thus, there is no medical evidence to indicate the Veteran's current minimal left knee tricompartmental arthritis was incurred in or caused by service including the left knee pain noted in March 2002.   

The examiner was also asked to address any relationship between the Veteran's left knee disability and his service-connected right knee disability.  The examiner determined that it was less likely than not that the current left knee arthritis was caused or aggravated by the right knee.  The examiner explained that if the Veteran's left knee osteoarthritis was caused or aggravated by the right knee, it should have manifested itself earlier than 14 years after separation.  The Veteran had normal left knee x-rays in 2009 and only minimal degenerative changes in a 2016 X-ray.  In this Veteran's case, the Veteran's left knee osteoarthritis is more likely than not is the result of the normal aging process combine with his post-service occupation as a tow truck driver for ten years.  

There is no medical evidence in significant conflict with the opinions of the July 2016 VA examiner.  Thus, the most probative medical evidence is against the claim.  

A veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  In that regard, the Veteran has reported experiencing knee pain since service.  However, the Veteran is not shown to possess any medical expertise; thus, his opinion as to the existence of a left knee disability or as to the etiology of a left knee disability is not competent medical evidence.  Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current left knee disability requires medical expertise to determine.  See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.").  In any event, the Board finds the July 2016 medical opinion more probative than the Veteran's lay statements as the opinion was offered by a medical professional after examination of the Veteran and consideration of the history of the disability including the Veteran's reports of knee pain, and as the opinion is supported by a clear rationale.  

In summary, the preponderance of the evidence is against a finding that the Veteran has a current left knee disability that was caused or aggravated by service or a service-connected disability.  Thus, the claim for service connection is denied.

Increased Rating for the Service Connected Right Knee

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016).  From August 2009 to August 2012, the Veteran's right knee disability was evaluated under Diagnostic Code 5257, other impairment of the knee, at 10 percent, excluding the periods the Veteran received temporary total disability for surgical convalescence.  38 C.F.R. § 4.71a.  Since September 2012, the Veteran's right knee disability has been rated under Diagnostic Code 5258, a dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the knee joint.  

By way of background, the Veteran initially injured his right knee in a motorcycle accident before service.  The Veteran underwent surgical repair of the injury in July 1998, which consisted of surgical repair to the anterior cruciate ligament and the tibia plateau for a fracture.  At that time, the surgeon specifically stated the medical meniscus appeared normal but did not comment on the lateral meniscus. 

The Veteran was found fit for service in February 2002 but began experiencing right knee pain and was separated in April 2002 as medically unfit for duty.  Shortly thereafter, in July 2002, the Veteran underwent right knee surgery that included surgical repair for both the lateral and the medial meniscus. 

As noted, the Veteran also underwent a series of right knee surgeries starting in February 2010.  A July 2010 MRI demonstrated a torn medial meniscus.  

Under Diagnostic Code 5257, the criteria for 10 percent rating is either slight recurrent subluxation or slight lateral instability.  Moderate recurrent subluxation or moderate lateral instability is rated 20 percent disabling.  Severe recurrent subluxation or severe lateral instability is rated 30 percent.

Under Diagnostic Code 5260, flexion of the knee, limitation of knee flexion under Diagnostic Code 5260 is rated 10 percent with flexion limited to 45 degrees.  Flexion limited to 30 degrees is rated 20 percent, and flexion limited to 15 degrees is rated 30 percent, the maximum schedular rating under that Diagnostic Code.  38 C.F.R. § 4.71a. 

Limitation of knee extension under Diagnostic Code 5261 is rated noncompensable or zero percent with extension limited to 5 degrees.  Extension limited to 10 degrees is rated 10 percent.  Extension limited to 15 degrees is rated 20 percent.  Extension limited to 20 degrees is rated 30 percent.  Extension limited to 30 degrees is rated 40 percent.  Extension limited to 45 degrees or greater is rated 50 percent, which is the maximum rating available.  Id.  

Normal range of knee motion is from zero degrees of extension to 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II.

A Precedent Opinion of the VA General Counsel has held that that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (69 FR 59988) (2004)).  A Veteran who has limitation of motion and instability of the knee may be evaluated separately under separate diagnostic codes provided when additional disability is shown.  VAOPGCPREC 23-97 (July 1, 1997); VAOPGCPREC 9-98 (Aug. 14, 1998).

Ten percent is awarded under Diagnostic Code 5259 for meniscectomy (removal of semilunar cartilage), which is the highest rating available under that Diagnostic Code.  Under Diagnostic Code 5258, a 20 percent rating is available for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint.

As noted in the introduction, the Veteran received a temporary total disability rating (100 percent) for surgical convalescence related to his right knee from February 23, 2010 to March 31, 2010, from March 15, 2011 to April 1, 2012, and from April 23, 2012 to September 1, 2012.  The Board notes that the Veteran effectively received 100 percent temporary total disability from March 15, 2011 to August 2012.  Again, since the Veteran received the maximum rating possible during the periods of surgical convalescence, the Board has excluded those periods from its analysis.  

In an October 2009 VA examination, the Veteran complained of severe sharp/locking/aching pain in his entire right knee.  He also reported weakness, stiffness, swelling, fatigue, lack of endurance, and heat.  He stated the he stumbled once a day on the right.  The knee locked twice a month.  He could walk a mile, stand more than 15-30 minutes without functional limitations, and perform his daily activities.  There were no episodes of dislocations or subluxations.  His range of motion was 0-130 degrees with pain but without change after repetitive use.   There was no evidence of weakness, decreased strength, fatigue, spasm, lack of endurance, or incoordination.  Testing did not establish any laxity of the ligaments.  

In a May 2010 VA examination, the Veteran reported progressively worsening pain, giving way, stiffness, weakness, and locking episodes several times a week.  He had moderate weekly flare-ups.  The range of motion was 0-110 degrees with pain, which decreased to 100 degrees after repetitive use.  The examiner did not find any objective evidence of instability or other abnormalities in the examination.  

In June 2010, an orthopedic treatment note recorded passive range of motion of 0-135 degrees.  The knee was stable to varus/valgus and Lachman's testing.  

In September 2010, the Veteran advised VA that when he is sitting, he cannot straighten the right leg due to the pain.  The Veteran also expressed his belief that his right knee is not stable as it locks and gives out.  He ends up on the floor approximately once a week due to knee buckling.  

In February 2011, the Veteran underwent a VA examination, which noted the knee giving way and instability.  The Veteran described weekly episodes of dislocation or subluxation and locking episodes several times a week.  In addition, there was weakness, stiffness, and incoordination.  He also described severe weekly flare-ups.  Upon examination, the VA examiner did not find any signs of instability or other abnormalities except severe crepitus.  The range of motion was from 0 degrees to 105 degrees but there was no additional limitation of motion after repetitive use.  Objective evidence of pain was noted.  

In January 2013, the Veteran underwent a VA examination for a claim of total disability based upon individual unemployability, which covered the current severity of the Veteran's right knee disability.  The Veteran's flexion ended at 90 degrees although objective evidence of pain started at 45 degrees.  Extension was normal without pain.  After repetitive testing, his range of motion was 0-90 degrees.  Contributing factors to the right knee loss of function included weakened movement, excess fatigability, swelling, instability of station, disturbance of locomotion, and interference with sitting, standing, and weightbearing.  Muscle strength was reduced to 3/5.  All stability tests were normal and there was no evidence of recurrent patellar subluxation or dislocation.  The VA examiner noted the Veteran's history of a right knee meniscus tear with frequent episodes of locking, joint pain, and joint effusion.  

In July 2016, the Veteran received a VA examination.  The Veteran gets random, throbbing sharp pain, which increases if he walks greater than a quarter mile. He has trouble going up and down stairs.  The examiner noted the right knee disability interfered with sitting and standing.  His range of motion was 0-100 degrees.  The Veteran had pain with flexion and there was evidence of pain with weight bearing.  There was no additional functional loss or decrease in the range of motion with repetitive use.  Testing did not reveal a decrease in muscle strength or any joint instability.  X-rays of the right knee demonstrated moderate tricompartmental osteoarthritis of the right knee, which had progressed compared to the prior study.

Throughout the period on appeal, the Veteran's treatment records and lay statements reflect symptoms consistent with those noted on VA examination.

As noted above, from the time the Veteran filed his claim in August 2009 until March 2011 (excluding the February-March period where the Veteran received total temporary disability for right knee surgical convalescence), the Veteran has received a ten percent rating for his service connected right knee disability, osteoarthritis, status post injury.  The Board notes that the Veteran's multiple surgeries for his right knee disability involved treatment for a meniscal tear.

After a review of the evidence, the Board has determined that for the period from August 2009 to August 2012, the Veteran's right knee disability presents a disability picture more nearly approximating a 20 percent rating than a 10 percent rating.  The Board recognizes that the medical evidence does not indicate moderate recurrent subluxation or moderate lateral instability, flexion limited to 30 degrees, and normal extension.  The Veteran, however, described frequent episodes of locking, more than once a week, pain, and effusion, which presents a disability picture approximating the criteria for a 20 percent rating under Diagnostic Code 5258.  The Board finds locking of the knee and/or falling to the floor due to a locking sensation is the type of evidence that the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).

At all relevant times, however, the medical evidence does not warrant a rating higher than 20 percent.  As noted, the Veteran's flexion has been limited to, at worst, 90 degrees flexion and extension is normal.  While the Veteran has complained of instability, there has not been any objective medical evidence of instability, dislocation, or subluxation.  The Board thus finds a 20 percent rating percent rating contemplates the Veteran's loss of function due to locking, pain, weakness, excess fatigability, swelling, deformity, atrophy, painful movement, repetitive motion, and lack of endurance.  Thus, the Board's finding applies even after considering functional loss due to the disability.  See 38 C.F.R. §§ 4.40, 4.45, 4.59.  The preponderance of the evidence is against a finding that the Veteran's disability more nearly approximates the criteria for a higher rating.  38 C.F.R. 
§§ 4.3, 4.7.  

Further, separate ratings are not warranted.  The evidence demonstrates the Veteran has loss of flexion which is not severe enough to warrant a zero percent rating, much less a compensable rating for loss of flexion.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  Therefore, the Board finds the Veteran is not entitled to a separate rating for loss of flexion in the left knee, or a separate rating for loss of extension, Diagnostic Code 5261 or no medical evidence at any time to suggest subluxation or dislocation.  While the Veteran has stated that he has experienced laxity.  As noted above, while the Veteran is competent to report he had a symptom of instability, the Board places more probative value upon the medical objective findings of no laxity than the Veteran's subjective complaints.  Thus, a separate rating is not warranted.  

As noted above, the Veteran is competent to attest to things he experiences through his senses, such as pain.   See Layno 6 Vet. App. at 469-71.  In this case the Veteran has stated his right knee disability results in pain, stiffness, locking, and limitations on walking, stair use, carrying or lifting, and squatting.  The lay statements do not indicate that the Veteran has flexion limited to 60 degrees or less, extension limited to 5 degrees, or ligament instability to warrant separate service connection for the right knee.  

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).






ORDER

Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee disability is denied.

Entitlement to a rating of 20 percent from August 12, 2009 to August 31, 2012, but no higher, for a right knee disability is granted, subject to the laws and regulations governing the payment of monetary awards. 

Entitlement to a rating in excess of 20 percent since September 1, 2012 for a right knee disability is denied.  




____________________________________________
LANA K. JENG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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