Citation Nr: 18139636 Decision Date: 09/28/18 Archive Date: 09/28/18 DOCKET NO. 16-16 839 DATE: September 28, 2018 ORDER Entitlement to service connection for osteoporosis as secondary to the Veteran’s bilateral knee disabilities is denied. For the entire period on appeal, a disability rating of 20 percent for right knee chondromalacia with instability is granted. For the entire period on appeal, a disability rating of 20 percent for left knee chondromalacia with instability is granted. For the entire period on appeal, a separate disability rating of 10 percent for right knee limitation of flexion is granted. For the entire period on appeal, a separate disability rating of 10 percent for left knee limitation of flexion is granted. FINDINGS OF FACT 1. The Veteran’s osteoporosis did not manifest during or as a result of active military service, nor did it arise, or become aggravated, as a result of the Veteran’s service-connected knee disabilities. 2. For the duration of the period on appeal, the Veteran’s right knee disability is manifested by moderate lateral instability. 3. For the duration of the period on appeal, the Veteran’s left knee disability is manifested by moderate lateral instability. 4. For the duration of the period on appeal, the Veteran’s right knee disability has been manifested by flexion limited, at worst, to 35 degrees. 5. For the duration of the period on appeal, the Veteran’s left knee disability has been manifested by flexion limited, at worst, to 35 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for osteoporosis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. For the entire period on appeal, the criteria for a 20 percent rating, but no higher, for right knee chondromalacia with instability have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 3. For the entire period on appeal, the criteria for a 20 percent rating, but no higher, for left knee chondromalacia with instability have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 4. For the entire period on appeal, the criteria for a separate 10 percent rating, but no higher, for right knee limitation of flexion have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260. 5. For the entire period on appeal, the criteria for a separate 10 percent rating, but no higher, for left knee limitation of flexion have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1972 to February 1982 and from November 1983 to June 1994. Service Connection Service connection may be granted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in or aggravated by active military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran 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”--the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a non-service-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Osteoporosis The Veteran contends that her osteoporosis was caused by her service-connected knee disabilities. The Veteran was diagnosed with osteoporosis in 2012 following a VA study indicating low bone density. A February 2016 VA opinion found that the Veteran’s osteoporosis was less likely than not caused or aggravated by her service-connected knee disabilities. The examiner noted that the etiology of osteoporosis is multifactorial and includes risk factors such as age, race, and sex. It was specifically noted that the risk is increased in individuals of white or Asian descent, women with small body frames, and older women. The examiner opined that the while the Veteran’s knees could limit her activity level, other risk factors such as being menopausal and her smoking history would more likely than not have the strongest influence upon the development of osteoporosis. It was also noted that the Veteran is a diabetic. Based on the foregoing, the Board finds that the most probative evidence of record establishes that the Veteran’s osteoporosis was not caused or aggravated by her service-connected knee disabilities. The Board places high probative weight on the February 2016 VA opinion, as it included thorough consideration of the Veteran’s claims file and medical history, and provided adequate rationale for the opinion that there was no association between the Veteran’s osteoporosis and her knee disabilities. The most probative evidence of record demonstrates that the Veteran’s osteoporosis was more likely caused by her increased risk factors of menopause and smoking. The Board notes that there is no medical evidence of record to the contrary. The Board further finds that the evidence does not support entitlement to service connection on a direct basis. Service treatment records are silent for diagnosis or treatment for osteoporosis. The evidence of record demonstrates that the Veteran was diagnosed with osteoporosis almost 20 years after separation from service. Additionally, the February 2016 VA examiner found that the Veteran’s osteoporosis was more likely attributable to menopause and her history of smoking. As such, service connection on a direct basis is not warranted. As the weight of the evidence is against this claim, the “benefit of the doubt” rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings The Veteran seeks increased ratings for her service-connected knee disabilities. From July 1, 1994, a 10 percent rating is effective for right knee chondromalacia with instability, pursuant to Diagnostic Codes 5257-5261, and a 10 percent rating is effective for left knee chondromalacia with instability pursuant to Diagnostic Codes 5257-5260. The Veteran filed her claim for increased rating on May 13, 2011. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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 for that rating. 38 C.F.R. § 4.7. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson, 12 Vet. App at 119; Hart v. Mansfield, 21 Vet. App. 505 (2008). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Under Diagnostic Code 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. Finally, a 30 percent rating applies where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, pertaining to limitation of leg extension, a noncompensable evaluation is assigned where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. Finally, a 50 percent evaluation is warranted where extension is limited to 45 degrees. Id. Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, or a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Id. The normal range of motion of the knee is from 0 degrees extension and flexion to 140 degrees. 38 C.F.R. § 4.71, Plate II. Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Precedent opinions of the VA’s General Counsel have held that dual ratings may be given for a knee disorder, with one rating for instability (Diagnostic Code 5257) and one rating for arthritis with limitation of motion (Diagnostic Codes 5003 and 5010). VAOPGCPREC 9-98 (63 Fed. Reg. 56,704 (1998)) and 23-97 (62 Fed. Reg. 63,604 (1997)). Another such opinion held 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 Fed. Reg. 59988 (2004)). VA’s General Counsel has determined that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97 (July 1, 1997). For a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Codes 5260 or 5261 need not be compensable but must at least meet the criteria for a non-compensable rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. See VAOPGCPREC 9-98 (August 14, 1998). Turning to the evidence of record, the Veteran received a VA examination in April 2012 and reported increased pain, weakness, stiffness, popping, and giving way of the knees. She also reported episodes of near falls and actual falls three times since January 2012. In addition, she stated that in September 2011, her knee gave way and she fell and injured her right hip. She further stated that she had about 5-6 falls in 2011 with no warning. The Veteran reported occasional flare-ups occurring in the morning, which made her unable to walk due to shooting pain and stiffness in her knee cap. She stated that it took her about 15 to 20 minutes to get going. She also reported problems walking up and down steps, stating that she had to hold railings because she did not know when her knees would give out. In addition, she had trouble with getting in and out of the tub, bending down and getting back up, and household chores. Physical examination of the right knee revealed flexion limited to 120 degrees, with pain at 0 degrees, and extension to 0 degrees. On the left, flexion was limited to 110 degrees, with pain at 0 degrees, and extension was to 0 degrees. There was no additional loss of motion upon repetitive testing. The examiner noted bilateral functional loss including weakened movement; excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; pain on movement; instability of station; disturbance of locomotion; and interference with sitting, standing, and weight-bearing. The Veteran was unable to perform heel-toe exercises or stand on one extremity without assistance and the examiner noted unsteady balance. There was localized tenderness bilaterally. As to both knees, muscle strength was 2/5 for flexion and extension. Joint stability testing was 1+ throughout. There was no evidence of recurrent patellar subluxation/dislocation, shin splints, or meniscal conditions. The Veteran reported occasional use of a walker. Imaging studies documented arthritis and the examiner noted diagnoses of bilateral chondromalacia and tibiofemoral degenerative changes. As to functional impact, the examiner stated that the Veteran’s knee disabilities impacted her ability to work in that she had difficulty bending squatting, standing, and walking up and down stairs with her knee popping and giving away. It was further noted that the Veteran was unable to lift or carry any weight, or sit for long periods of time. On VA examination in February 2016, the Veteran reported that her knee pain varied in severity, but that weight-bearing was always painful. She used a cane full-time and moved about her trailer by holding on to furniture. She also reported a history of both knees giving way, though not necessarily at the same time. The Veteran further reported flare-ups and functional loss. On physical examination of the right knee, flexion was 120 degrees and extension was to 0 degrees. On the left knee, flexion was to 120 degrees and extension was to 5 degrees. Upon repetitive testing, there was no additional loss of motion or function. Bilateral pain was noted on examination with both flexion and extension, which caused less movement than normal. There was no objective evidence of crepitus. The examiner noted that pain significantly limited functional ability with repeated use and during flare-ups, but it was not possible to estimate functional loss in terms of range of motion because it would be speculation. There was localized tenderness bilaterally on the patellofemoral joint, as well as on the right knee medial and lateral joint line. Muscle strength was 5/5 on the right and 4/5 on the left. There was no muscle atrophy and joint stability testing was normal. However, the examiner noted moderate recurrent subluxation, lateral instability, and recurrent effusion. There were no shin splints or meniscal conditions. The Veteran used a cane constantly and the examiner noted that her disabilities impacted her ability to work in that the Veteran had marked limitations with standing or walking beyond short periods. The examiner further stated that it was likely that the Veteran’s cane was required on a full-time basis due to her history of falling, and she was confined to a sedentary job. The diagnosis was knee joint osteoarthritis. The Veteran received a VA examination in June 2017 and the examiner provided new diagnoses of patellofemoral pain syndrome and bilateral chondromalacia. While the diagnoses changed, it was noted that this was a progression of the Veteran’s previous diagnosis, characterized by increased pain and instability when walking, standing, sitting, driving, climbing stairs, or squatting. The Veteran stated that her knees had become weak and more painful, and would give out sometimes. During flare-ups, her knees felt like giving out. The Veteran also reported functional loss, stating that it hurt to drive and she would often have to stop to stretch. She also felt stiffness and pain when climbing stairs or walking. Range of motion testing showed flexion to 140 degrees and extension to 0 degrees bilaterally. Pain was noted but it did not contribute to functional loss. There was also pain with weight-bearing and objective evidence of crepitus. Pain, weakness, fatigability, and lack of endurance significantly limited functional ability with repeated use and during flare-ups. The examiner estimated range of motion following repeated use over time as flexion to 70 degrees and extension to 0 degrees bilaterally. Estimated range of motion during flare-ups was flexion to 35 degrees and extension to 0 degrees bilaterally. Other factors associated with functional loss included weakened movement; swelling; disturbance of locomotion; and interference with sitting and standing. Muscle strength was normal and there was no atrophy, ankylosis, or instability. The examiner noted no history of recurrent subluxation, lateral instability, recurrent effusion, or shin splints. As to meniscal conditions, the examiner noted bilateral frequent episodes of joint pain. The Veteran reported constant use of a cane for stability and support. The examiner opined that the Veteran’s knee conditions impacted her ability to work in that she required care when climbing stairs, and she used handrails and a cane for ambulation. The Veteran has also submitted lay statements in support of her claims. In a May 2011 statement, the Veteran reported constant knee pain with giving way and stiffness. She also stated that she had fallen due to her knees and she needed assistance getting up from a seated position. In her April 2013 Notice of Disagreement, the Veteran stated that her knees would give out separately at least once a week. She also used a cane and needed assistance with household chores. She further stated that she could not sit for more than 45 minutes without needing assistance to get up, after which she would need to stand still for a few minutes before she could walk a few steps. She also had to lean against the bed to dress herself in order to avoid falling. After consideration of the medical and lay evidence, the Board resolves reasonable doubt in favor of the Veteran and finds that ratings of 20 percent for chondromalacia with instability of the right and left knee are appropriate for the entire appeal period. The Board notes that the Veteran has continuously reported multiple falls throughout the appeal period. At the April 2012 VA examination, it was noted that the Veteran had fallen three times in three months, with several falls in the prior year. The February 2016 VA examiner characterized the Veteran’s recurrent subluxation, lateral instability, and recurrent effusion as “moderate,” consistent with a 20 percent rating under the applicable diagnostic criteria. Throughout the appeal period, the Veteran has reported use of a walker or cane, and has consistently stated that she requires assistance getting up and moves around by holding onto furniture or railings. In light of the medical and lay evidence demonstrating moderate instability and a history of falls, the Board resolves all reasonable doubt in favor of the Veteran and finds that 20 percent ratings, but no higher, are warranted for the Veteran’s bilateral knee disabilities for the entire period on appeal. However, 30 percent ratings are not warranted, as the overall evidence does not show that the Veteran’s bilateral knee instability has been severe in nature. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board also resolves reasonable doubt in favor of the Veteran and finds that separate ratings of 10 percent for limitation of flexion in the right and left knee are appropriate for the entire appeal period. The Board notes that the Veteran had some limitation of flexion at her April 2012 and February 2016 VA examinations that was not compensable. The Board further notes that while the Veteran had full flexion bilaterally at her June 2017 VA examination, the June 2017 VA examiner estimated significant limitations in range of motion with flare-ups, with flexion to only 35 degrees bilaterally. In light of the above, the Board resolves all reasonable doubt in favor of the Veteran and finds that separate 10 percent ratings, but no higher, are warranted for the Veteran’s bilateral knee limitation of flexion for the entire period on appeal. However, 20 percent ratings are not warranted, as the overall evidence does not show that the Veteran’s bilateral knee limitation of flexion has more nearly approximated 30 degrees, even when considering the functional limitations upon repetition and flare-ups. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board has also considered whether the Veteran is entitled to any additional separate ratings for her knee disabilities. The clinical evidence does not establish ankylosis, removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5259, 5262, and 5263 are not for application. Regarding separate ratings for limitation of extension, the Veteran has had full extension in the right knee, even considering functional limitations upon repetition and flare-ups. While the Veteran had 5 degrees extension in her left knee at her February 2016 VA examination, this is not compensable limitation of extension. The overall evidence does not show that the Veteran’s bilateral knee extension has more nearly approximated 10 degrees, even when considering the functional limitations upon repetition and flare-ups, and therefore separate ratings under Diagnostic Code 5261 are not warranted. With respect to dislocated semilunar cartilage, the Board acknowledges that a June 2017 VA examination showed evidence of a meniscal condition with frequent episodes of bilateral joint pain. However, there was no evidence of effusion or frequent episodes of locking. The criteria under Diagnostic Code 5258 are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met). Therefore, the Board finds that a separate rating under Diagnostic Code 5258 is not warranted for dislocated semilunar cartilage. See 38 C.F.R. § 4.71a, Diagnostic Code 5258. Accordingly, resolving all doubt in favor of the Veteran, the Board finds that ratings of 20 percent for chondromalacia with instability of the right and left knee and ratings of 10 percent for right and left knee limitation of flexion are warranted for the entire period on appeal. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Freeman, Associate Counsel
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