POSTTRAUMATIC ARTHRITIS

Summary

The veteran, who served from September 1988 to September 1992 and May 1993 to November 1996, appeals the denial of an increased disability rating for his right knee condition and service connection for lumbar spine and left knee disabilities, claimed as secondary to his right knee condition. The veteran also asserted direct service connection for his lumbar spine disability due to an in-service motor vehicle accident. The Board reviewed the evidence, including multiple VA examinations and the veteran's testimony. For the right knee, the Board found that the evidence did not support a rating higher than the existing 20 percent, as the veteran's symptoms and examination findings did not meet the criteria for higher ratings under diagnostic codes for instability or limitation of motion. For the lumbar spine, the Board found no evidence of in-service injury or complaints related to the motor vehicle accident, and that the veteran's current back symptoms were not aggravated beyond natural progression by his service-connected right knee. For the left knee, the Board found that while a left knee strain was noted in some examinations, the evidence persuasively weighed against a current disability related to service or aggravated by the right knee condition, with most examinations showing a normal left knee. The Board denied all claims, finding the evidence weighed against the veteran's position and that the benefit of the doubt doctrine was not applicable.

Rationale

Evidence did not support a rating higher than 20 percent.; Examination findings indicated no worse than moderate recurrent subluxation/instability.; Limitation of motion findings corresponded to noncompensable ratings.

Full Decision Text

Citation Nr: 22023089
Decision Date: 04/20/22	Archive Date: 04/20/22

DOCKET NO. 15-35 188
DATE: April 20, 2022

ORDER

Entitlement to a disability rating in excess of 20 percent for right knee meniscal tear with anterior ligament tear and degenerative joint disease (DJD) is denied.

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

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

FINDINGS OF FACT

1. The evidence of record persuasively weighs against a finding that the Veteran's right knee disability has manifested in symptoms worse than dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint.

2. The evidence of record persuasively weighs against a finding that the Veteran's lumbar spine disability had its onset during active service or is otherwise related to active service, to include as secondary to his service-connected right knee disability.

3. The evidence of record persuasively weighs against a finding that the Veteran's left knee disability had its onset during active service or is otherwise related to active service, to include as secondary to his service-connected right knee disability.

CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 20 percent for right knee meniscal tear with anterior ligament tear and degenerative joint disease (DJD) have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 5257, 5258, 5260, 5261.

2. The criteria for service connection for a lumbar spine disability, to include as secondary to the service-connected right knee disability, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310(a).

3. The criteria for service connection for a left knee disability, to include as secondary to the service-connected right knee disability, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from September 1988 to September 1992 and from May 1993 to November 1996.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in February 2015.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a September 2018 hearing. A copy of the hearing transcript has been reviewed and associated with the claims file.

These issues were previously before the Board in March 2019 and June 2021, and they were remanded both times for additional evidentiary development.

1. Entitlement to a disability rating in excess of 20 percent for right knee meniscal tear with anterior ligament tear and degenerative joint disease (DJD)

Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). However, 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). 

Additionally, the Board must consider whether the disability has undergone varying and distinct
 4.10.

In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). However, 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). 

Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or if there is an approximate balance of positive and negative evidence, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *10 (Fed. Cir. Dec. 17, 2021).

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. §§ 4.7, 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Throughout the rating period on appeal, or from September 2014, the Veteran has been in receipt of a 20 percent rating for his service-connected right knee meniscal tear with anterior ligament tear and DJD pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5258.

The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board may not apply a current regulation prior to its effective date unless the regulation specifically provides otherwise. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 307 (1991) to the extent that it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). However, the Board is not precluded from applying prior versions of the applicable diagnostic codes to the period on or after the effective date of the new diagnostic codes if the prior versions were in effect during the pendency of the appeal, as is the case here. See VAOPGCPREC 3-2000 65 Fed. Reg. 33, 422 (2000); see also DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).

Under the pre-February 7, 2021 rating criteria, Diagnostic Code 5010 prescribes that posttraumatic arthritis is to be rated as degenerative arthritis. Diagnostic Code 5003 states that degenerative arthritis is to be rated on the basis of limitation of motion for the specific joint involved. However, when the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. 

Under the current version of Diagnostic Code 5010, posttraumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint.

Under the previous version of Diagnostic Code 5257, a 20 percent disability rating is assigned for moderate recurrent subluxation or lateral instability, and a 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 

Descriptive terms such as "slight," "moderate
 the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. 

Under the current version of Diagnostic Code 5010, posttraumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint.

Under the previous version of Diagnostic Code 5257, a 20 percent disability rating is assigned for moderate recurrent subluxation or lateral instability, and a 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 

Descriptive terms such as "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. According to Merriam-Webster's Collegiate Dictionary (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree.

The current rating criteria for Diagnostic Code 5257 differentiates between recurrent subluxation or instability as opposed to patellar instability. Under the criteria for recurrent subluxation or instability, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear causing persistent instability, without prescription from a medical provider for an assistive device (such as a cane, crutch(es), or walker). A 20 percent rating is warranted for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation.

Under the current criteria for patellar instability per Diagnostic Code 5257, a 10 percent is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1) to Diagnostic Code 5257 stipulates that the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.

Diagnostic Code 5258, which was unchanged by the February 7, 2021 diagnostic criteria revisions, provides a 20 percent rating for dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint.

Under both the previous and current rating criteria, Diagnostic Code 5260 provides a 20 percent rating where leg flexion is limited to 30 degrees and a 30 percent rating where leg flexion is limited to 15 degrees. Under Diagnostic Code 5261, a 20 percent rating is assigned for leg extension limited to 15 degrees, a 30 percent rating is assigned for leg extension limited to 20 degrees, a 40 percent rating is assigned for leg extension limited to 30 degrees, and a 50 percent rating is awarded for leg extension limited to 45 degrees.

The Veteran underwent a VA knee examination in February 2015. He reported regular right knee swelling and stated that his right knee pops out of place 8 to 10 times per day, causing him to lose balance. He reported flare-ups of right knee pain occurring almost daily and lasting hours. His initial right knee range of motion (ROM) was from 0 to 130 degrees with pain. He had no additional functional loss after three repetitions. The examiner was unable to provide an opinion regarding functional loss after repeated use over a period of time or during flare-ups, as the Veteran was not being examined after repeated use of the right knee over time or during a flare-up and her training as a nurse practitioner was insufficient to estimate functional loss in those situations. The examiner noted a history of slight right knee lateral instability, but no recurrent subluxation or effusion. Join stability testing in the right
8 to 10 times per day, causing him to lose balance. He reported flare-ups of right knee pain occurring almost daily and lasting hours. His initial right knee range of motion (ROM) was from 0 to 130 degrees with pain. He had no additional functional loss after three repetitions. The examiner was unable to provide an opinion regarding functional loss after repeated use over a period of time or during flare-ups, as the Veteran was not being examined after repeated use of the right knee over time or during a flare-up and her training as a nurse practitioner was insufficient to estimate functional loss in those situations. The examiner noted a history of slight right knee lateral instability, but no recurrent subluxation or effusion. Join stability testing in the right knee was normal, with no evidence of instability. She also noted a history of right knee meniscal tear, with surgeries in August and December 1995, with frequent episodes of "locking" and pain. The examiner indicated that the Veteran had regular use of a knee brace.

A VA treatment note dated in October 2015 indicates that the Veteran had a right knee ROM from 0 to 115 degrees and that his prone knee flexion in the right knee was 70 degrees.

During his September 2018 Board hearing, the Veteran testified that doctors have told him that his right knee was becoming unstable and would require a knee replacement in the future. He also stated that, without a brace, his right knee pops out of place.

The Board remanded this issue in March 2019 for a new examination to adequately address the Veteran's functional loss after repeated use over time and during flare-ups. A new examination was conducted in November 2019. The examiner indicated that the Veteran did not experience right knee flare-ups; rather, he stated that his reports of flare-ups were essentially waxing and waning of his typical knee symptoms. His initial right knee ROM was from 10 to 120 degrees with pain. He had no additional loss after three repetitions. The examiner stated that the Veteran's right knee flexion was limited to 100 degrees after repeated use over time. He also noted a history of slight recurrent subluxation, but no lateral instability or recurrent effusion. Joint stability testing indicated anterior instability at 2+ (5-10 millimeters) and medial instability at 1+ (0-5 millimeters). The examiner also noted slight recurrent patellar dislocation in the right knee and a meniscal tear, with a meniscectomy in 1995, causing frequent episodes of joint pain. He also indicated that the Veteran had occasional use of a cane.

The Board remanded this issue again in June 2021 for an addendum opinion addressing flare-ups at the time of the February 2015 VA examination and including ROM measurements for weight-bearing, non-weight-bearing, and passive ROM testing, in accordance with Correia v. McDonald, 28 Vet. App. 158, 168 (2016). An addendum medical opinion was rendered in July 2021. The examiner estimated that the Veteran's ROM for weight-bearing, non-weight-bearing, passive, and active motion at the time of the November 2019 examination was 120 degrees. She estimated that the Veteran's ROM during flare-ups was 110 degrees in the right knee, and she stated that this impairment during flare-ups has been consistent since the February 2015 examination.

After considering the relevant evidence, the Board finds that a disability rating in excess of 20 percent is not warranted for the Veteran's right knee disability. In this regard, he is currently in receipt of the highest schedular rating under Diagnostic Code 5258, and the evidence does not support a higher rating under a separate diagnostic code.

The Board finds that a higher rating is not warranted under the previous or current versions of Diagnostic Code 5257. The pre-February 7, 2021 criteria assign a 30 percent rating for "severe" recurrent subluxation or lateral instability. The February 2015 VA examiner opined that the Veteran had a history of slight lateral instability and no recurrent subluxation, with no current joint instability found on examination. The November 2019 examiner noted a history of slight recurrent subluxation, and the examination indicated anterior instability at 2+ and medial instability at 1+. The Board finds that these examination results indicate no worse than moderate recurrent subluxation and lateral instability. While the terms "moderate" and "severe" are not defined in the rating criteria, the examination results and the Veteran's description of symptoms most closely proximate a finding of no worse than moderate recurrent subluxation and lateral instability. The Board also finds that a higher rating is not warranted under the current rating criteria of Diagnostic Code 5257. A 30 percent rating under both the criteria for recurrent subluxation or instability and for patellar instability require the prescription by a medical provider
2019 examiner noted a history of slight recurrent subluxation, and the examination indicated anterior instability at 2+ and medial instability at 1+. The Board finds that these examination results indicate no worse than moderate recurrent subluxation and lateral instability. While the terms "moderate" and "severe" are not defined in the rating criteria, the examination results and the Veteran's description of symptoms most closely proximate a finding of no worse than moderate recurrent subluxation and lateral instability. The Board also finds that a higher rating is not warranted under the current rating criteria of Diagnostic Code 5257. A 30 percent rating under both the criteria for recurrent subluxation or instability and for patellar instability require the prescription by a medical provider for a brace and a cane, walker, or other assistive device. The evidence demonstrates that the Veteran uses a right knee brace, but he has not been shown to have been prescribed any other assistive device. Therefore, a rating higher than 20 percent is not warranted under the current or prior rating criteria for Diagnostic Code 5257.

A higher rating is also not warranted based on limitation of motion. At the time of the February 2015 examination, his flexion was limited to 130 degrees and his extension was 0 degrees. The October 2015 VA treatment record indicates that he had prone flexion of 70 degrees in the right knee. During the November 2019 VA examination, his right knee extension was limited to 120 degrees, and he had flexion to -10 degrees. Finally, the July 2021 VA examiner indicated that his right knee ROM was limited to 110 during flare-ups. These findings correspond to noncompensable ratings under Diagnostic Codes 5260 and 5261.  For this same reason, ratings under both the range of motion code and the code for semilunar cartilage/locking are not for application here.  

In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence persuasively weighs against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; see Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *10 (Fed. Cir. Dec. 17, 2021); 38 C.F.R. § 3.102. Accordingly, the Board finds that a rating in excess of 20 percent for the Veteran's right knee disability is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257, 5258, 5260, 5261.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310.

Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Thus, a necessary element for establishing any claim for entitlement to service connection is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has
 entitlement to service connection is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is no bright line rule prohibiting consideration of evidence dated prior to the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency).

The United Stated Court of Appeals for the Federal Circuit has held that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability under 38 U.S.C. § 1110 if it results in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).

In adjudicating these claims, the Board must assess the competence and credibility of the claimant.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet).  

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).  If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise) the claimant receives the benefit of the doubt." Id. 

2. Entitlement to service connection for a lumbar spine disability, to include as secondary to the service-connected right knee disability

Throughout the period on appeal, the Veteran has been diagnosed with degenerative arthritis of the thoracolumbar spine. Thus, a current disability has been established by the evidence of record. He asserts that his low back disability is related to his active duty service, either due to an in-service motor vehicle accident in March 1995 and/or as secondary to his service-connected right knee disability. 

The Veteran's service treatment records show that he was hit by a motor vehicle while walking in March 1995. Treatment records show that he was hit on the right side and had pain in the right knee and leg. However, none of his service treatment records mention back pain in relation to the motor vehicle accident. The Veteran denied having recurrent back pain in a March 1996 report of medical history, and his separation examination was negative for back problems.

The Veteran underwent a VA examination in February 2015, wherein the examiner opined that his low back disability is less likely than not caused by his right knee disability. In support of this conclusion, the examiner cited medical literature showing that it is unlikely that injuries involving the knee that caused a mild limping over a short period of time would have any major detrimental effect on the lumbar spine. She also stated that leg problems causing a temporary limp of a low magnitude are unlikely to create load transmission of any significant magnitude to cause additional stress on the spine. 

An additional VA medical opinion was issued in October 2018, wherein the examiner stated that there was no new evidence in the claims file to overturn the negative nexus opinion of February 2015.

During his September 2018 hearing, the Veteran testified his back problems had their onset about five or six years prior to the hearing date. He stated that he believes his back disability may be directly caused by the March 1995 in-service motor vehicle accident. He also stated that a VA physician told him that his back problems are related to his right knee disability. 

Another VA medical opinion was rendered in November 2019, wherein the examiner opined that the Veteran's low back
 transmission of any significant magnitude to cause additional stress on the spine. 

An additional VA medical opinion was issued in October 2018, wherein the examiner stated that there was no new evidence in the claims file to overturn the negative nexus opinion of February 2015.

During his September 2018 hearing, the Veteran testified his back problems had their onset about five or six years prior to the hearing date. He stated that he believes his back disability may be directly caused by the March 1995 in-service motor vehicle accident. He also stated that a VA physician told him that his back problems are related to his right knee disability. 

Another VA medical opinion was rendered in November 2019, wherein the examiner opined that the Veteran's low back disability was less likely than not aggravated beyond its natural progression by his right knee disability. He indicated that the limping due to his right knee disability is not of a degree to cause unnatural progression of his spine disability. The examiner stated that the Veteran's current back symptoms are not indicative of pathological injury or permanent aggravation beyond the expected changes associated with aging.

A final VA addendum medical opinion was obtained in July 2021. The examiner opined that the Veteran's low back disability is less likely than not caused by the in-service motor vehicle accident in March 1995. In support of her opinion, the examiner indicated that there is no mention of a spine injury or back pain incurred in the March 1995 accident. Rather, the only injury reported was to the Veteran's right knee. She stated that her opinion is based on a thorough review of the claims file and that, unless there is any information that is not available, there is no evidence that a back injury occurred in service. 

The Board finds that the evidence persuasively weighs against a finding that the Veteran's low back disability was incurred in, or is otherwise related to, his active duty service, to include as caused by the March 1995 motor vehicle accident. His service treatment records, which give a detailed account of his right knee problems, are silent for any complaints of back pain following the motor vehicle accident. Further, the Veteran denied recurrent back pain at separation, and his examination was negative for back problems. As indicated by the July 2021 VA examiner, the evidence fails to show that a back injury occurred in service. In reaching this conclusion, the Board acknowledges the Veteran's hearing testimony that he believes his back disability is related to the in-service motor vehicle accident. However, he has not shown that he has the requisite medical expertise to provide an opinion as to the etiology of his lumbar spine disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, while the Veteran is competent to testify as to his symptoms and experiences, he did not give any indication that his back symptoms had their onset during service or soon after the motor vehicle accident. Rather, he reported an onset around 2012 or 2013. Therefore, the criteria for service connection on a direct basis have not been met. 38 U.S.C. §§ 1110, 1131; Shedden, 381 F.3d at 1167; 38 C.F.R. § 3.303.

The Board also finds that the evidence persuasively weighs against a finding that the Veteran's lumbar spine disability was caused or aggravated beyond its natural progression by his service-connected right knee disability. As the February 2015 examiner stated and the October 2018 examiner concurred, the medical literature indicates that a mild limp due to a knee disability is unlikely to cause a permanent detrimental effect on the lumbar spine or create a load transmission of a significant magnitude to cause additional stress on the spine. Additionally, the November 2019 examiner opined that it is less likely than not that the Veteran's right knee disability aggravated his spine disability beyond its natural progression, as his degree of limping is not significant enough to cause unnatural progression of his spine disability and no aggravation has been shown by the evidence. Rather, his back disability symptoms are not indicative of pathological injury or permanent aggravation beyond the expected changes associated with aging. The Board acknowledges that the Veteran testified that a VA physician told him that his back and knee problems are related, he did not describe why the physician believed the disabilities to be related, identify the physician who told him that, or submit a written medical opinion from that physician. Therefore, the evidence persuasively weighs against a finding that his back disability is secondary to his service-connected right knee disability, and the criteria for secondary service connection have not been met. See Allen, 7 Vet. App. at 448-49; 38 C.F.R. §§ 3.303, 3.310.

In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine
 beyond the expected changes associated with aging. The Board acknowledges that the Veteran testified that a VA physician told him that his back and knee problems are related, he did not describe why the physician believed the disabilities to be related, identify the physician who told him that, or submit a written medical opinion from that physician. Therefore, the evidence persuasively weighs against a finding that his back disability is secondary to his service-connected right knee disability, and the criteria for secondary service connection have not been met. See Allen, 7 Vet. App. at 448-49; 38 C.F.R. §§ 3.303, 3.310.

In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence persuasively weighs against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); 38 C.F.R. § 3.102. Accordingly, the Board finds that service connection for a lumbar spine disability is not warranted.

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

The Veteran asserts that he is entitled to service connection for a left knee disability. He contends that such disability was caused or aggravated by his service-connected right knee disability or was caused by the March 1995 in-service motor vehicle accident.

The service treatment records do not show any complaints of left knee pain. His separation medical examination showed problems in the right knee only.

A VA knee examination conducted in May 2009 showed no problems or diagnosis for the left knee. He had normal flexion and extension of the left knee.

The Veteran underwent another VA knee examination in November 2010. The Veteran reported pain in the left knee, and stiffness and weakness were also noted. However, he had a full range of motion in the left knee with no objective evidence of pain. The examiner noted intermittent left knee strain but stated that it has no effect on his usual daily activities or significant effects on usual occupation. She further opined that the intermittent strain is less likely than not a result of the Veteran's right knee disability, as there was no evidence of gait abnormality.

The Veteran underwent another VA knee examination in August 2012. He had left knee flexion to 135 degrees without objective evidence of painful motion, and the examiner noted no left knee diagnosis and indicated that there is no functional loss for the left lower extremity.

VA imaging reports conducted in November 2010 and August 2014 both show unremarkable left knee examinations. 

Another VA knee examination was conducted in February 2015.  The examiner diagnosed a left knee strain and indicated that the Veteran reported flare-ups of left knee pain. However, a radiology report conducted on the same day was unremarkable with regard to a left knee disability. He had left knee flexion to 130 degrees with pain. The examiner opined that the Veteran's left knee disability is less likely than not due to his service-connected right knee disability. She stated that medical literature shows that unilateral cruciate ligament deficiency did not alter the kinematics of the contralateral uninjured knee during weight-bearing flexion. 

An x-ray performed in August 2018 was negative for left knee arthritis. 

The Veteran underwent another VA knee examination in November 2019. The examiner stated that there was no current evidence of a diagnosed left knee disability and no evidence or known etiology of left knee symptoms. Therefore, the examiner stated that he could not diagnose a left knee disability. The examiner opined that the Veteran's left knee strain is less likely than not caused by his right knee disability. He stated that there is insufficient medical literature to support such a nexus, absent a showing of moderate to severe leg length discrepancy (at least 4-5 cm). He indicated that the left leg muscles may work more at times if the Veteran favors his right knee, causing situational soreness that resolves. However, he cited to medical studies indicating that there is insufficient evidence to conclude that favoring one knee adversely affects the other.

An addendum VA medical opinion was obtained in July 2021. The examiner stated that the Veteran's left knee pain does not cause any functional limitations. She noted that he had no treatment or physical therapy for a left knee problem in at least three years and reported no functional limitations due to his left knee pain. The examiner also opined that any left knee pain is less likely than not related to the Veteran's active duty service, as his service treatment records do not show any complaints of left knee problems due to the March 1995 motor vehicle accident. The examiner also pointed out that there were no complaints of left knee pain until 2014, and that it is "well documented"
 conclude that favoring one knee adversely affects the other.

An addendum VA medical opinion was obtained in July 2021. The examiner stated that the Veteran's left knee pain does not cause any functional limitations. She noted that he had no treatment or physical therapy for a left knee problem in at least three years and reported no functional limitations due to his left knee pain. The examiner also opined that any left knee pain is less likely than not related to the Veteran's active duty service, as his service treatment records do not show any complaints of left knee problems due to the March 1995 motor vehicle accident. The examiner also pointed out that there were no complaints of left knee pain until 2014, and that it is "well documented" by treatment records that his complaint of left knee pain was a new complaint. She stated that his noted left knee strain is not related to the Veteran's military service and appears to be a normal knee finding due to aging and wear and tear for the Veteran's age, and that it does not demonstrate an aggravation of the left knee symptoms by the right knee disability.

After considering the relevant evidence of record, the Board finds that the evidence persuasively weighs against a finding that the Veteran has a left knee disability that is related to his active duty service, to include as secondary to his service-connected right knee disability. VA examinations in August 2012 and November 2019 all showed a clinically normal left knee, and the July 2021 VA medical opinion indicates that the Veteran does not have any functional loss due to left knee pain. However, the November 2010 and February 2015 examiners noted a left knee strain. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that he has had a diagnosed left knee disability during the pendency of his claim. 

However, the Board finds that the evidence persuasively weighs against a finding that the Veteran's left knee disability was incurred in, or is otherwise related to, his active duty service, to include as caused by the March 1995 motor vehicle accident. His service treatment records, which give a detailed account of his right knee problems, are silent for any complaints of left knee pain following the motor vehicle accident. Further, no left knee problems were noted on his separation examination. As indicated by the July 2021 VA examiner, the evidence fails to show that a left knee injury occurred in service. In reaching this conclusion, the Board acknowledges the Veteran's hearing testimony that he believes his left knee disability is related to the in-service motor vehicle accident. However, the Veteran has not shown that he has the requisite medical expertise to provide an opinion as to the etiology of his left knee disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, while the Veteran is competent to testify as to his symptoms and experiences, he did not give any indication that his left knee symptoms had their onset during service or any time soon after the motor vehicle accident. Rather, he reported an onset around 2012 or 2013, and his earliest treatment for left knee symptoms was in 2014. Therefore, the criteria for service connection on a direct basis have not been met. 38 U.S.C. §§ 1110, 1131; Shedden, 381 F.3d at 1167; 38 C.F.R. § 3.303.

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The Board also finds that the evidence persuasively weighs against a finding that the Veteran's left knee disability was caused or aggravated beyond its natural progression by his right knee disability. As stated by the November 2010 examiner, there is no evidence of gait abnormality. Further, the February 2015 examiner indicated that medical studies have shown that unilateral cruciate ligament deficiency does not alter the kinematics of the contralateral uninjured knee during weight-bearing flexion. The November 2019 examiner indicated that, absence a showing of moderate to severe leg length discrepancy, there is insufficient evidence to conclude that a disability of one knee can cause a disability in the other knee. He further explained that favoring the right knee may create situational soreness, but such soreness resolves on its own. Finally, the July 2021 examiner indicated that there is no evidence that the Veteran's left knee symptoms were aggravated beyond their natural progression by his right knee disability. Therefore, the Board finds that the criteria for secondary service have not been met. See Allen, 7 Vet. App. at 448-49; 38 C.F.R. §§ 3.303, 3.310.

In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence persuasively weighs against the
 disability of one knee can cause a disability in the other knee. He further explained that favoring the right knee may create situational soreness, but such soreness resolves on its own. Finally, the July 2021 examiner indicated that there is no evidence that the Veteran's left knee symptoms were aggravated beyond their natural progression by his right knee disability. Therefore, the Board finds that the criteria for secondary service have not been met. See Allen, 7 Vet. App. at 448-49; 38 C.F.R. §§ 3.303, 3.310.

In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence persuasively weighs against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); 38 C.F.R. § 3.102. Accordingly, the Board finds that service connection for a left knee disability is not warranted.

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Pratt

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.