KNEE IMPAIRMENT OF

M. HYLAND · 2017 · Case ID: 1722866

DENIED

Summary

The veteran, who served in the U.S. Army from September 1977 to September 1997, appeals the denial of service connection for a right knee disability and entitlement to TDIU. The right knee disability was claimed as directly related to in-service injuries and pain, secondarily to service-connected low back disability and right tibia stress fracture, and due to obesity and epidural lipomatosis associated with lumbar spine issues. The Board found the evidence weighed against direct service connection, noting that while the veteran experienced knee issues during service, later medical evidence, including a June 2016 VA examination, indicated early osteoarthritis not clearly linked to service. The examiner opined that the knee disability was less likely than not service-related, citing negative bone scans and x-rays, lack of direct trauma, and inconsistent reporting of the 1978 injury. The Board found the veteran's contention of a 1978 knee injury not credible due to contradictory service records and lack of documentation. The Board also found the knee disability was not proximately caused by or aggravated by service-connected lumbar spine issues or tibia stress fractures, as the nexus was not medically established. For the TDIU claim, the veteran argued unemployability due to his back disability and TBI symptoms. However, the Board noted his graduate degrees in business and counseling, suggesting availability of sedentary employment. The Board found his service-connected disabilities did not prevent him from securing substantially gainful employment, especially given his ability to complete an internship for his master's degree. Therefore, service connection for the right knee disability is denied, and TDIU is denied.

Rationale

Weight of competent evidence weighs against service connection.; Veteran's contention of 1978 knee injury found not credible.; Medical evidence shows early osteoarthritis not clearly linked to service.

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

08-00 295

Full Decision Text

Citation Nr: 1722866
Decision Date: 06/20/17 Archive Date: 06/29/17

DOCKET NO. 08-00 295 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina

THE ISSUES

1. Entitlement to service connection for a right knee disability, to include as secondary to service-connected low back disability and right tibia stress fracture.

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

REPRESENTATION

Veteran represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

K. Josey, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from September 1977 to September 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

This case was previously before the Board in July 2011, October 2013, and May 2016, when it was remanded for Agency of Original Jurisdiction (AOJ) development. The case has been returned to the Board at this time for further appellate review.

FINDINGS OF FACT

1. The competent evidence of record does not demonstrate a nexus between the Veteran's current right knee disability and his military service, or between his current right knee disability and his service-connected disabilities.

2. The evidence of record does not demonstrate that the Veteran's service-connected disabilities prevent him from securing and maintaining substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2016).

2. The criteria for a TDIU have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the instant case, VA provided adequate notice respecting the issues on appeal in letters to the Veteran in April 2006 and March 2014.

VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in obtaining relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service, VA, and private treatment records are associated with the claims file. VA also provided relevant and adequate examinations January 2007, September 2011, November 2014, and June 2016.

There is no indication of additional existing evidence that is necessary for a fair adjudication of the claims that are the subjects of this appeal. Therefore, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist.

II. Service Connection for Right Knee 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.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (
Service Connection for Right Knee Disability

Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent with one year from the date of termination of service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

Service connection may be granted on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-14 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995).

The Veteran seeks service connection for a right knee disability. He has been diagnosed with osteoarthritis and degenerative joint disease of the right knee; the first diagnosis was in May 2006 by a private care provider. Right knee problems were noted on his separation examination, and his service treatment records contain notations indicating that his knee slipped and was stiff after long runs, that both knees swelled during a 1978 twelve mile march, that the Veteran dislocated his right knee in September 1983, and that he had tenderness in his right knee in July 1984. In a February 2008 written statement, the Veteran further reported that he injured his right knee during a 1978 2nd Infantry Division Martial Arts Championship, but did not seek treatment for this injury.

The Veteran contends that his right knee disability is directly related to the knee injuries he sustained and the knee pain he developed during service. In the alternative, he contends that his service-connected degenerative joint disease of the lumbar spine affected his gait and limited his mobility, which resulted in an inability to exercise, which in turn resulted in obesity that caused or contributed to his right knee disability. He further argues that his diagnosis of epidural lipomatosis is associated with his service-connected degenerative joint disease of the lumbar spine and contributed to the onset of arthritis in his right knee. The Veteran also contends that his service-connected right tibia stress fractures contributed to the onset of his right knee disability.

The Veteran's osteoarthritis and degenerative joint disease were not diagnosed within one year of his separation from the military, so the chronic disease presumption does not apply. See 38 C.F.R. §§ 3.307, 3.309.

Next, the evidence of record does not support a finding of direct service connection. The latest VA examination, which the Veteran underwent in June 2016, thoroughly addresses the Veteran's lay statements and contentions. To begin with, the examiner opined that the Veteran's right knee disability is less likely than not (less than 50 percent probability) incurred in or caused by his service. The examiner explained that, although the Veteran experienced the same symptoms during service in 1983, many knee conditions can cause similar symptoms, and there is ample clinical evidence that the osteoarthritis did not have its onset in service or shortly thereafter. This clinical evidence includes bone scans done in 1984 showing no evidence of knee osteoarthritis and right knee x-rays negative for osteoarthritis in December 1997 and September 2003. The examiner also noted that the medial joint space narrowing that was first documented by x-ray images in November 2006 was consistent with "very early osteoarthritis." The Board interprets this documentation as indicating that the osteoarthritis found in 2006 was not a longstanding condition, which would weigh against a finding that the osteoarthritis would be related to remote injuries or incidents during the Veteran's military service which ended in 1997.

The examiner further explained that there is no evidence in the claims file of direct trauma to the right knee which might lead to premature osteoarthritis. Although the Veteran reported a knee injury in 1978 during the martial arts competition, the examiner noted a September 1983 medical report that specifically stated "no h/o [history of] leg problems." The Veteran is competent to report the 1978 knee injury. However, the Board finds the Veteran's contention of a 1978 knee injury to not be credible. First, the Board finds that it would be unlikely that a knee injury severe enough to lead to premature osteoarthritis would not be reported or documented, especially considering this Veteran's extensive service treatment records show a propensity to seek treatment for other lingering injuries. Moreover, the record reflects that in September 1983, the Veteran did not report any problem with his right knee, which directly contradicts a history of a right knee injury in 1978.

The VA examiner also opined that the Veteran's right knee osteoarthritis was not caused by or aggravated by his service-connected disabilities. The examiner reviewed the medical articles submitted by the Veteran and addressed them in the opinion. The examiner, citing an article submitted by the Veteran, opined that a direct link has not been found between spinal osteoarthritis and knee osteoarthritis.

The examiner further opined that, while obesity is certainly a risk factor for the development of knee osteoarthritis, the Veteran's obesity is less likely than not proximately caused by his service-connected lumbar spine disability. As rationale, the examiner pointed to the Veteran's weight gain during service, which was documented at a rate greater than the national average, even while participating in a normal level of physical activity during service prior to the onset of back pain. The examiner noted that the Veteran gained a significant amount of weight after his back pain began, but still while he maintained a normal level of physical exertion. The examiner also noted the Veteran's weight fluctuating between 2001 and 2009, indicating that he was able to lose significant amounts of weight even during a period of back pain. The examiner concluded, based on these observations, that the Veteran's obesity was less likely than not caused by his service-connected lumbar disability, and that therefore the Veteran's right knee osteoarthritis was less likely than not proximately due to or caused by his service-connected lumbar disability leading to obesity.

The examiner also opined that the Veteran's right knee disability is less likely than not proximately caused by or the result of his service-connected right tibia stress fracture. The examiner noted that bone scans in April and September 1984 of the Veteran's last documented right tibial stress fracture showed no extension of the stress fracture into the Veteran's right knee, and that an x-ray 19 years later in August 2003 showed no signs of degenerative arthritis yet in the Veteran's right knee. Citing again the Osteoarthritis Prevention article the Veteran submitted, that tibial stress fractures and stress reactions have not been identified as risk factors for developing knee arthritis, the examiner opined that the Veteran's right knee disability is less likely than not caused by his service-connected history of tibial stress fracture. The Board notes that the examiner in the November 2014 VA examination opined that repetitive stress injuries are among the risk factors for degenerative joint disease of the knee
documented right tibial stress fracture showed no extension of the stress fracture into the Veteran's right knee, and that an x-ray 19 years later in August 2003 showed no signs of degenerative arthritis yet in the Veteran's right knee. Citing again the Osteoarthritis Prevention article the Veteran submitted, that tibial stress fractures and stress reactions have not been identified as risk factors for developing knee arthritis, the examiner opined that the Veteran's right knee disability is less likely than not caused by his service-connected history of tibial stress fracture. The Board notes that the examiner in the November 2014 VA examination opined that repetitive stress injuries are among the risk factors for degenerative joint disease of the knee; the examiner did not cite any medical treatise to support this point or make clear whether the stress injuries increasing the risk of osteoarthritis are to the joint itself or neighboring extremities as well. For these reasons, the Board finds that the June 2016 VA examiner's opinion regarding stress injuries carries more weight than that of the November 2014 VA examiner.

Finally, the June 2016 VA examiner opined that the Veteran's service-connected disabilities less likely than not aggravated his right knee osteoarthritis beyond its natural progression. The examiner supported this opinion by reasoning that tibial stress fractures, stress reaction, obesity, and back conditions are not risk factors for the progression of knee osteoarthritis. The examiner also noted that gait abnormalities are not risk factors either when they result from conditions other than leg length discrepancy, which is not present in this case. The examiner compared the Veteran's current right knee osteoarthritis to a baseline established by x-ray in September 2003, which did not show any osteoarthritis or degenerative joint disease.

The examiner also noted that the Veteran's knee problems during service were consistent with tendonitis, but that tendonitis is intermittent in nature and that the Veteran does not currently have tendonitis in his right knee. The Board further notes that the Veteran is not service connected for epidural lipomatosis, so any effect this condition had on his right knee is irrelevant to this analysis.

The Board notes that the Veteran is competent to identify certain medical conditions, to report a contemporaneous medical diagnosis, and to describe symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, although the Veteran argued cogently that his knee injuries during service had the same symptoms as his current osteoarthritis, and that his obesity contributed to the onset of the arthritis, he is not competent to render a medical opinion regarding the nexus between those conditions and the onset of his arthritis. Similarly, the March 2016 letter from the Veteran's treating physician at the Durham VA Medical Center cannot be considered a nexus opinion for the purposes of establishing service connection, as it is not based on a review of the claims file and it contemplates only the source/etiology of the Veteran's leg and back pain, not his knee pain.

Therefore, the Board acknowledges the Veteran's arguments in favor of service connection for his right knee osteoarthritis, but finds that the weight of the competent evidence weighs against a finding that the Veteran's current knee disability is related to his military service.

III. TDIU

VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992).

The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a).

The regulations provide that if there is only one
employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a).

The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a).

Moreover, because it is established VA policy that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, the Board will submit to the Director of Compensation and Pension Services (Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a case to the Director for consideration of an extraschedular rating under section 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008) (citing Thun v. Peake, 22 Vet. App. 111, 115 (2008)).

Section 4.16, in contrast to extraschedular evaluation under 38 CFR § 3.321(b)(1), does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. VAOPGCPREC 6-96 (August 16, 1996).

Here, the Veteran argues that he has not worked since January 2005, when he was laid off from a job as a warehouse coordinator. He noted in a December 2007 statement that his back disability limits his ability to perform physical labor, and argued that completing an internship for his graduate program would "cause severe problems" with his back disability as it would require him "to be at a place of employment for 8 continuous hours." The Veteran reported that starting in 2005, he was in graduate school for professional counseling training. The record indicates that the Veteran has an undergraduate degree in business and a master's degree in marriage and family therapy. Specifically, in May 2015 and February 2016, the Veteran reported to VA medical personnel that he had a master's degree in marriage and family therapy.

The Veteran's February 2009 VA spine examination noted that he was incapable of lifting or carrying anything greater than 25 pounds, which had significant effects on his work as a warehouse coordinator. Nonetheless, the examiner did not address the lumbar spine disability's effect on sedentary work, and the Veteran's reported symptoms did not mention sitting as exacerbating the pain.

The Veteran's October 2016 VA traumatic brain injury (TBI) examination noted objective evidence of mild impairment of memory, attention, and concentration, in that he was forgetful of names and recalling tasks. It further noted that the Veteran's symptoms included mild to moderate headaches on a daily basis, frequent insomnia, and hypersensitivity to sound and light; these were reported to mildly interfere with work, daily living activities, and/or close relationships. Finally, the examiner commented that the Veteran's TBI had a functional impact on his ability to work, noting, "The TBI causes social and occupational impairment due to poor concentration, headaches, forgetfulness, and poor task completion and agitation reactions." The Veteran reported feeling irritable and agitated, but the examiner noted that he had neurobehaviorial effects that occasionally interfere with workplace interaction and/or social interaction, but do not preclude them.

In March 2014, VA provided the Veteran with a second Form 21-8940 with which to update his TDIU claim, but the Veteran did
and hypersensitivity to sound and light; these were reported to mildly interfere with work, daily living activities, and/or close relationships. Finally, the examiner commented that the Veteran's TBI had a functional impact on his ability to work, noting, "The TBI causes social and occupational impairment due to poor concentration, headaches, forgetfulness, and poor task completion and agitation reactions." The Veteran reported feeling irritable and agitated, but the examiner noted that he had neurobehaviorial effects that occasionally interfere with workplace interaction and/or social interaction, but do not preclude them.

In March 2014, VA provided the Veteran with a second Form 21-8940 with which to update his TDIU claim, but the Veteran did not return the form or provide the requested updated information. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not a one-way street"); 38 C.F.R. §§ 3.159 (c)(1)(i) (requiring claimant to cooperate fully with VA's efforts to obtain non-federal records).

Given his undergraduate and graduate business and counseling degrees, it appears that a wide variety of sedentary jobs could be available to the Veteran even considering the mild interference with work and workplace interaction resulting from his TBI symptoms. This is supported by the fact that the Veteran asserted in 2007 that achieving the master's degree required completion of a full-time internship, and the record indicates that by 2015 the Veteran reported having a master's degree, implying that he was able to secure and complete such an internship in spite of his service-connected disabilities. Therefore, the Board finds the Veteran's service-connected disabilities do not prevent him from securing or following a substantially gainful occupation. Accordingly, the Board finds that referral to the Director for consideration of an extraschedular rating under section 4.16(b) is not warranted.

ORDER

Service connection for right knee disability is denied.

TDIU is denied.

____________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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