DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

PAULA B. MCCARRON · 2022 · Case ID: 22062584

MIXED

Summary

The veteran, who served in the U.S. Army from October 1972 to June 1973, appeals the denial of service connection for a back disability and an acquired psychiatric disorder, as well as an increased rating for his service-connected left knee residuals. The veteran contended that his back and psychiatric conditions were secondary to his service-connected left knee disability. The Board reviewed medical evidence, including VA examinations from 2005, 2009, 2012, 2015, 2017, and a private treatment record from 2009. Key evidence included conflicting medical opinions regarding the nexus between the left knee and the claimed secondary conditions. While a February 2009 private record and April 2017 VA examination suggested a link, June 2017 VA opinions concluded it was less likely than not that the back and psychiatric conditions were related to the service-connected knee. The Board found the June 2017 opinions more probative, citing a lack of severe gait abnormality impacting the back and the greater likelihood of substance abuse influencing the psychiatric condition. The veteran's lay testimony regarding his symptoms and their impact on his life was considered but given less weight than the medical opinions. The Board denied service connection for the back and psychiatric conditions, finding the evidence weighed against a secondary connection. The claim for an increased rating for the left knee was also denied, as the evidence did not support a higher rating under the applicable diagnostic codes, particularly regarding instability. The Board remanded claims for left ankle/foot, left leg, left shin, and left hip disabilities for further VA examination and medical opinions, as well as TDIU, due to the intertwined nature of these issues.

Rationale

Conflicting medical opinions regarding nexus; June 2017 VA opinion found less likely than not related to service; April 2017 VA opinion found at least as likely as not related to service but was deemed less probative

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

17-49 469

Full Decision Text

Citation Nr: 22062584
Decision Date: 11/08/22 Archive Date: 11/08/22

DOCKET NO. 17-49 469
DATE: November 8, 2022

ORDER

Entitlement to service connection for a back disability is denied.

Entitlement to service connection for an acquired psychiatric disorder, to include depression, bipolar disorder, and substance abuse, is denied.

Entitlement to an increased rating greater than 10 percent for residuals of a left knee medial meniscectomy is denied.

REMANDED

Entitlement to service connection for a left ankle / foot disability is remanded.

Entitlement to service connection for a left leg disability is remanded.

Entitlement to service connection for a left hip disability is remanded.

Entitlement to service connection for a shin disability is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran does not have a back disability that is secondary to his service-connected left knee disability, and a back disability was not incurred in or otherwise caused by his active service.

2. The Veteran does not have an acquired psychiatric disorder that is secondary to his service-connected left knee disability, and a back disability was not incurred in or otherwise caused by his active service.

3. The Veteran's residuals of a left knee medial meniscectomy is rated as 10 percent disabling, which is the maximum schedular rating permitted for symptomatic removal of semilunar cartilage.

CONCLUSIONS OF LAW

1. The criteria for service connection for a back disability due to service or service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for service connection for an acquired psychiatric disorder due to service or service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for a rating in excess of 10 percent for residuals of a left knee medial meniscectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5259.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Army from October 1972 to June 1973.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2022. A transcript of the hearing has been associated with the electronic claims file.

The Board notes that in the Veteran's August 2012 notice of disagreement, as well as during his June 2022 hearing, he attributed injuries to his right ankle to his service-connected left knee disability. This claim has not been adjudicated by the RO and will not be addressed further herein.

Service Connection

1. Entitlement to service connection for a back disability

2. Entitlement to service connection for an acquired psychiatric disorder

The Veteran contends that he has a back disability and acquired psychiatric disorder that were caused or aggravated by his service-connected left knee disability.

Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection.

Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310.

The question for the Board is whether the Veteran has a current back disability or acquired psychiatric disorder that is proximately due to or the result of, or was aggravated beyond its natural progress by a service-connected disability.

In October 1972, the Veteran suffered a tear of the left knee medial meniscus and tear of the posterior capsule of the left knee. There was noted instability of the left knee joint that was moderate and rotatory. In a March 1973 Report of Medical History, the Veteran stated, "I am fine except for my left knee which still bothers me..." the Veteran denied a current or past history of back trouble of any kind or joint problems other than his left knee.

August 2005 left knee x-rays showed a spur
Board is whether the Veteran has a current back disability or acquired psychiatric disorder that is proximately due to or the result of, or was aggravated beyond its natural progress by a service-connected disability.

August 2005 left knee x-rays showed a spur arising from the anterior superior aspect. The tibial fracture appeared more extensive than expected from a reported ground level fall. An August 2005 MRI of the lumbar spine showed moderate degenerative disc disease and degenerative joint disease in the lower lumbar spine. In August 2005, the Veteran also reported left-sided back pain with radiation into the left hip.

A January 2009 spine MRI showed multilevel chronic disc degeneration changes in the lower lumbar spine, most advanced at L5-S1, with high-grade left-sided foraminal stenosis.

A February 2009 private treatment record indicated that the onset of the Veteran's low back pain radiating to the left leg and toes occurred in May 2004, when he stepped off an embankment and landed on the left knee, fracturing the tibial plateau, tibia, and fibula. The Veteran reported that the May 2004 injury occurred because he stepped on his left, bad knee and it gave way. In July 2008, the Veteran compounded his problems by falling down the steps and fractured his right ankle.

In January 2012, the Veteran was hospitalized for mental health problems, specifically depression, anxiety, and suicidal ideation. The assessment at the time was depressive disorder with suicidal ideation and substance abuse / dependence. During his hospitalization, he was noted to walk with a steady gait and good balance. Other January 2012 hospitalization records, however, indicated a weak gait. The Veteran also had a somewhat decreased swing and slowed gait. The Veteran indicated that he had fallen about 2 months previously due to an "uneven surface." The gait difficulty had been more recent, over the past few months.

The Veteran was scheduled for VA examinations in January 2012 and April 2012, but failed to appear.

In an August 2012 notice of disagreement, the Veteran stated that he had a back disability that was "directly related to my operation on [the left] knee in 1972. The [left] leg was determined to be [three-eighths of an inch] shorter than the right leg by the VA [] clinic during regular evaluation in 2004 2005 and is documented in my records. I wear a heel lift in my left shoe, VA doctor ordered. I also wear a rigid flexible knee brace. This condition has been aggravated by my left knee since 1972." The Veteran believed his constant limp from his shortened left leg resulted in bulging discs in his spine. The left leg and shin disabilities were due to excessive instability in the left knee following the in-service left knee surgery. After worsening over the years, the left knee instability led to a fall in 2004 resulting in a complete reconstruction of my left tibial plateau and application of a metal appliance attached to the left knee and leg. The metal appliance resulted in constant pain and swelling along with having to wear a rigid flexible knee brace and also aggravated the nerves and muscles in the left lower leg, resulting in nerve pain, muscle spasm, hernia, and foot pain and soreness. The Veteran's depression was associated with residuals of the medial meniscectomy of the left knee. "I have suffered with chronic pain and physical limitations and nerve pain along with muscle spasms since 1972. These conditions have increased in severity and duration steadily over the years leading to reduced activity, physical fitness, and job restrictions. This pain, constant, with so many limitations has led to chronic depression with psychotic tendencies as documented by my VA records." As to the ankles, the Veteran asserted that his problems were with the right ankle and caused by another fall, in 2007, due to the knee problems. After the fall, the right ankle, "has grown back with joint infringement, ankle and heel bone broken."

In May 2015, multiple records indicated that the Veteran's gait was steady. In June 2015, the Veteran's gait appeared normal. In July 2015
1972. These conditions have increased in severity and duration steadily over the years leading to reduced activity, physical fitness, and job restrictions. This pain, constant, with so many limitations has led to chronic depression with psychotic tendencies as documented by my VA records." As to the ankles, the Veteran asserted that his problems were with the right ankle and caused by another fall, in 2007, due to the knee problems. After the fall, the right ankle, "has grown back with joint infringement, ankle and heel bone broken."

In May 2015, multiple records indicated that the Veteran's gait was steady. In June 2015, the Veteran's gait appeared normal. In July 2015, the Veteran's gait was unremarkable. In August 2015, the Veteran had a narrow based gait with reduced arm swing.

VA treatment records indicate that after his initial diagnosis with a depressive disorder during his January 2012 hospitalization that the diagnosis ultimately was changed to bipolar disorder.

In December 2016, the Veteran was walking with a slight limp. He walked with a cane. The assessment was chronic back pain. Another December 2016 record, however, indicated a normal gait.

In March 2017, the Veteran reported a depressed mood, with stressors that included medical issues such as chronic pain. He also faced continuing legal issues and financial challenges.

In April 2017, the Veteran had a normal gait and transferring. In June 2017, the Veteran had a steady gait.

An April 2017 VA back examination report documented lumbosacral degenerative disc disease with osteoarthritic changes. The Veteran reported onset of symptoms in 1995, beginning with pain and soreness in the left cervical area. At present, he had constant lower back, hip, and leg pain. The condition had gotten worse with constant pain and soreness with limited mobility. Following examination, the examiner concluded that it was at least as likely as not that the Veteran's back disability was proximately due to or the result of the service-connected left knee disability. The rationale was, "Based on information reviewed it is at least as likely as not that the veterans left knee with instability contributed to his fall and thus left tibial lateral plateau fracture with residual leg length discrepancy. The latter ultimately contributing to his lower back condition."

The Veteran underwent an April 2017 VA mental health examination. The examiner diagnosed bipolar disorder and stimulant use disorder in remission. The Veteran denied any history of mental health problems prior to service. He believed his symptoms began in the 2000s due to his medical issues and how they significantly impacted his quality of life and resulted in chronic pain. The Veteran also felt that he was affected by his service in the military, due to treating patients who were severely injured and dismembered. Recently, the Veteran had felt depressed, especially about his medical issues and how it affected his ability to work, his finances, and his ability to be in an intimate relationship. Following examination, the examiner concluded that it was at least as likely as not that the diagnosed bipolar disorder was proximately due to or the result of the Veteran's service-connected left knee disability. The rationale indicated that the bipolar disorder was related to the Veteran's medical issues and how they had significantly impacted his life. In addition, manic symptoms could be triggered by cocaine use. The rationale included a reiteration of additional lay contentions of the Veteran (outlined above) and his reported current symptoms.

A June 2017 VA psychiatric opinion is of record. After reviewing the evidence of record, the medical professional concluded that there was no indication that the left knee medial meniscectomy caused a psychiatric condition such as bipolar disorder. "It is therefore less likely than not that his bipolar disorder was due to [] the results of his service-connected left knee medial meniscectomy. He has a history of substance abuse, cocaine [in] particular. There is a greater likelihood conditions such as substance abuse would play a role in the evolution of bipolar disorder as opposed to a musculoskeletal condition."

VA obtained a June 2017 VA back opinion. The medical professional concluded after reviewing the evidence of record that it was less likely than not that the Veteran's degenerative disc disease and osteoarthritis of the lumbar spine was proximately due to or the result of his left knee medial meniscectomy. "There is no indication that he developed such a severe abnormality of his gait so as to impact the pelvis and lower lumbar spine. On the compensation and pension examination he reported his back symptoms began over 20 years following his medial meniscus surgery. I would have expected to see significant therapeutic
abuse would play a role in the evolution of bipolar disorder as opposed to a musculoskeletal condition."

VA obtained a June 2017 VA back opinion. The medical professional concluded after reviewing the evidence of record that it was less likely than not that the Veteran's degenerative disc disease and osteoarthritis of the lumbar spine was proximately due to or the result of his left knee medial meniscectomy. "There is no indication that he developed such a severe abnormality of his gait so as to impact the pelvis and lower lumbar spine. On the compensation and pension examination he reported his back symptoms began over 20 years following his medial meniscus surgery. I would have expected to see significant therapeutic and diagnostic intervention to the lumbar spine over the years following the medial meniscectomy, if the low back became symptomatic as [a] result of that medial meniscectomy. Such documentation is not present."

During his June 2022 Board hearing, the Veteran testified that since his 1972 left knee injury he had problems with his shin and claimed joints. The Veteran had a fall in 2004 where he hurt his shin. During service, the Veteran regularly lifted and moved heavy objects and equipment. He claimed that the low back disability was due to his left knee due to limping when he walked. The left leg was three-eighths of an inch shorter than his right leg. The Veteran had degenerative arthritis in the left hip. The Veteran asserts that all the claimed disabilities on the left side of the body were caused or aggravated by the service-connected left knee disability due to the leg length discrepancy and gait problems.

In his June 2022 Board hearing, the Veteran also testified that his depression had worsened as he got older. He attributed the depression "to me not being able to do what I would like to do and being limited in my abilities to work and stuff like that." The Veteran had worked in jobs dealing with the public, but now that he was not working and interacting with others the depression seemed to get worse. He had sleep issues and anger issues that he kept internally. As to his ability to work, the Veteran testified, "I've been unable to work for a long time and I haven't accepted that, but after a while you accept it and it's affected my economic state quite a lot and because of my physical conditions, I can't do the kind of work I'm good at and sometimes they tried to train me. I went for Voc rehab through the VA back in 2009 and 2008 and did and they tried to make me an office person, business office, you know. But I just I can't even type 25 words a minute and I'm not good at those things. I never had a job at it. I did do good in accounting. I got several accounting degrees, the accounting part of it but I was never able to get a job doing it, no." The Veteran had last worked in about 2005. Since that time, however, he had worked in telemarketing. The Veteran indicated that he had obtained letters indicating that he was unable to work both due to physical disability and due to mental disability. The Veteran had 4 accounting degrees (computerized accounting, payroll accounting, office accounting, and income tax) through VA vocational training and a 10-year automotive degree from a technical school. The Veteran had not completed an associate degree. The Veteran's inability to lift batteries and carry heavy objects prevented him from working at Firestone any longer.

The Board concludes that, while the Veteran has a current back disability and acquired psychiatric disorder, the evidence of record persuasively weighs against finding that either disability is proximately due to or the result of, or aggravated beyond its natural progression by a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a).

The June 2017 VA medical opinions opined that the back and acquired psychiatric disorders were less likely than not proximately due to or the result of the service-connected left knee disability. As to the back, the medical professional explained that the left knee disability did not result in a gait abnormality severe enough to affect the back. Moreover, if the Veteran had been experiencing such gait or other abnormalities due to the left knee problems, the medical professional would have expected significant therapeutic intervention for the back over the years due to the left knee problems. Such was not the case. As to the bipolar disorder, the medical professional discussed how the Veteran's ongoing substance abuse problems were more likely to have caused and otherwise "play a role in the evolution of bipolar disorder" instead of the service-connected left knee disability. The Board finds these opinions the most probative evidence of record as to whether the back and/or acquired psychiatric disorders were caused or aggravated by the Veteran's service-connected left knee disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

By contrast, the Board finds the conclusions reached in the April 2017 VA examination reports of less probative weight. As to the back disability, the medical professional's rationale was merely a conclusory statement that the left knee with instability contributed to his fall and thus left tibial lateral plateau fracture with residual leg length discrepancy. Such a finding, however, is not consistent with the findings of the April 2017 VA examination itself, which found no evidence of instability on examination. The Veteran had reported falls in the past, but they have not been medically attributed to his left knee, to include the 2004 injury relied on by the examiner. As such, the Board affords greater weight to the June 2017 opinion. As to the acquired psychiatric disorder claim, the April 2017 VA examination report the rationale for the conclusion that the diagnosed disability was due to the service-connected left knee disability relied entirely on the Veteran's lay contentions, without any medical analysis or rationale for the provided opinion. The rationale repeatedly discussed what the Veteran "reports" or "states" and failed to provide any actual medical rationale for the opinion reached. As such, the Board finds the June 2017 VA medical opinion of greater probative value.

The Veteran believes that his back and acquired psychiatric disorders were caused or aggravated by his service-connected left knee disability. However, the Veteran in this case is not competent to provide a nexus opinion regarding these issues. The issues are medically complex, as they require knowledge of the interaction between multiple organ systems in the body and anatomical relationships. Therefore, the conclusions reached are outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011).

Consequently, the Board gives more probative weight to the June 2017 medical opinions.

The evidence of record persuasively weighs against finding that the Veteran has a back disability or acquired psychiatric disorder that was caused or aggravated by his service-connected left knee disability. Therefore, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

Increased Ratings

3. Entitlement to an increased rating greater than 10 percent for residuals of a left knee medial meniscectomy is denied.

The Veteran contends that he is entitled to a higher rating because the current rating for the left knee does not accurately reflect the severity of his disability.

The Veteran's residuals of a left knee medial meniscectomy are rated under 38 C.F.R. § 4.71a, DC 5259. Under DC 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259.

The Veteran underwent a VA examination in July 2011. The Veteran could dress and undress himself and could handle his food and toilet. The Veteran was able to walk 200 feet and stated that his doctor had asked the Veteran not to walk more than that because of the left knee. The examiner noted, however, that the previous day the Veteran had gone to look at motor homes with his son and the examiner's impression was that the Veteran had walked extensively more than 200 feet. He could lift 25 pounds. There was no evidence of flare-ups of the left knee. The Veteran reported using a cane, but was not using it at the time of examination. The Veteran also had a knee and back brace. The Veteran used a left heel lift because he had a short left leg, although the examiner did not find any leg length discrepancy on examination. The Veteran described ongoing left knee pain. The Veteran walked with a slight limp, antalgic on the left, and reported that it was due to problems with the left foot, left knee, let hip, and back. On evaluation, there was no swelling and related scars were well healed. Range of motion of the left knee was 0 to 120 degrees, with pain onset from 90 to 120 degrees. There was no further loss of motion with repetitive motion testing. There was no anteroposterior or mediolateral instability.

The Veteran was scheduled for a VA knee examination in April 2012, but failed to appear.

The Veteran's June 2012 TDIU claim indicated that he had last worked full-time in May 2004. He had past work experience as a technician at Firestone, as well as work as a store manager, commercial manager, auto service manager, and a service writer at Sears Auto Service. The Veteran attributed his inability to work to his left knee disability, as well as depression and his claimed back and lower extremity disabilities.

In an August 2012 notice of disagreement, the Veteran stated that his left knee symptoms had greatly increased in severity, including increased pain.

The Veteran was afforded a VA examination in April 2017. The knee problems had gotten worse with excessive loss of mobility in the lower leg, knee, and foot. The left leg was shorter than the right. The Veteran experienced left knee flare-ups described as aching, pain, and soreness with stiffness in the hip and lower back. There was functional loss due to an inability to stand or walk for any amount of time. The Veteran had excessive foot stiffness, numbness, and limited motion. He was unable to bend the knee or crawl. The left knee would give out. Right knee motion was normal. Left knee motion was from 0 to 130 degrees. There was objective pain on flexion and mild tenderness to palpation. There was no further loss of motion with repetitive motion testing. Left knee muscle strength was normal and there was no muscle atrophy. There was no ankylosis. The Veteran had no history of recurrent subluxation or lateral instability. Left knee stability testing was normal (Lachman test, posterior drawer test, medial instability, and lateral instability testing). The Veteran had leg length discrepancy, with the right leg being 1cm longer due to left tibial lateral plateau fracture with residual leg length discrepancy. The Veteran had no history of recurrent patellar dislocation, shin splints, lower leg stress fractures, chronic exertional compartment syndrome, or genu recurvatum. The Veteran had a past history of left meniscal tear, with meniscectomy in the 1970s. Related symptoms to the meniscal disability were discomfort, pain, and decreased range of motion. The Veteran occasionally used a cane and knee sleeve. The functional impact of the left knee disability affected the Veteran's ability to work due to prolonged standing and walking, as well as climbing stairs, could be impacted by discomfort and pain with overuse.

During his June 2022 Board hearing, the Veteran testified that there were no problems he could recall with the last VA examination. The Veteran reported limited motion, stiffness, swelling, and difficulty walking. He also used a cane and flexible knee brace. The Veteran had past experience working on cars, in construction, at a carpet mill, and ultimately worked as a manager at Firestone for 32 years. At Firestone, he worked as automotive manager, parts store manager, and service advisor.

As the Veteran is in receipt of the highest schedular rating for dislocation of
the Veteran's ability to work due to prolonged standing and walking, as well as climbing stairs, could be impacted by discomfort and pain with overuse.

As the Veteran is in receipt of the highest schedular rating for dislocation of symptomatic removal of semilunar cartilage, there is no basis to award a higher evaluation.

The Board has also considered the other DCs pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).

The Board notes that there are other DCs relating to knee disorders, such as DC 5256 (ankylosis of the knee), DC 5257 (recurrent subluxation or [lateral] instability), DC 5258 (dislocated semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (for genu recurvatum).

The Veteran's left knee disability is not manifested by nonunion or malunion of the tibia and fibula, or genu recurvatum. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Veteran is able to move his left knee, albeit with some limitation of motion, so it is clearly not ankylosed. The Veteran has no limitation of extension. There is some limitation of flexion, but even accounting for limitation due to pain, the limitation does not reach the level of a compensable rating under DC 5260. There is no evidence of dislocated semilunar (i.e. meniscal) cartilage during the appellate time period. As such, a separate or higher rating is not warranted under DC 5258.

The Board has considered the Veteran's assertions of instability and/or giving out of the left knee that have resulted in multiple falls over time. The rule against pyramiding (noted above) does not categorically preclude assigning a separate disability rating under pre-amended (i.e. pre-February 7, 2021) DC 5257 for lateral instability when a claimant is already rated under DC 5259 for residuals of a meniscectomy if there are symptomatic residuals of a meniscectomy other than instability that could independently warrant a compensable rating under DC 5259. Walleman v. McDonough, 35 Vet. App. 294 (2022). The Board acknowledges the Veteran's lay reports of left knee instability and/or giving out and recognizes that a compensable rating under DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Board, however, finds the medical evidence in this regard of significantly greater probative value. Testing on multiple occasions by different medical professionals have consistently found no evidence of anterior, posterior, medial, or lateral instability of the left knee. These tests each have taken into consideration the Veteran's lay reports of instability of the knee. The Board recognizes that the Veteran is competent to report symptoms he physically observes; however, the Board affords greater probative weight to the medical professionals' conclusions that the Veteran's lay reports are not representative of lateral instability of the left knee sufficient to warrant a rating under DC 5257. The Board makes this determination based on the greater education, training, and experience of the medical professionals and the complexity of linking any feeling of instability in the lower extremity specifically to left knee lateral instability. Based on all
on multiple occasions by different medical professionals have consistently found no evidence of anterior, posterior, medial, or lateral instability of the left knee. These tests each have taken into consideration the Veteran's lay reports of instability of the knee. The Board recognizes that the Veteran is competent to report symptoms he physically observes; however, the Board affords greater probative weight to the medical professionals' conclusions that the Veteran's lay reports are not representative of lateral instability of the left knee sufficient to warrant a rating under DC 5257. The Board makes this determination based on the greater education, training, and experience of the medical professionals and the complexity of linking any feeling of instability in the lower extremity specifically to left knee lateral instability. Based on all of the foregoing, the Board finds no basis for assigning separate or higher ratings under the pre-amended DC 5257. Under the post-amended DC 5257, a separate rating is not warranted because the Veteran does not have a diagnosed condition involving the patellofemoral complex with recurrent instability, for the same reasons discussed above.

The Board notes that the Veteran's functional loss was considered, as the medical evidence shows that the Veteran has consistently complained of pain in the left knee. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the limitation of motion documented in the medical records as resulting from pain is already contemplated in the disability ratings currently assigned. Consequently, the Board finds that a higher disability rating based on functional loss is not warranted.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for the Veteran's left knee disability. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

1. Entitlement to service connection for a left ankle / foot disability is remanded.

2. Entitlement to service connection for a left leg disability is remanded.

3. Entitlement to service connection for a left hip disability is remanded.

4. Entitlement to service connection for a shin disability is remanded.

The Veteran asserts that he has current left ankle/foot, left leg, left shin, and left hip disabilities that were caused or aggravated by his service-connected left knee disability.

As to the left ankle/foot, left leg, and left shin claims, the Veteran has not been afforded a VA examination. Given the evidence discussed above regarding the Veteran's back and psychiatric disorder and the Veteran's arguments, the Board concludes that a remand is necessary to obtain a VA examination and medical opinion.

An April 2017 VA hip examination report included a diagnosis of left hip strain. The Veteran reported symptom onset in 2005, with aching in the lower back, hip, and leg. He had soreness and pain in the left foot. He was told the left hip and leg was degenerated with a profusely bulging discs in the lumbar spine. The condition had worsened, as evidenced by aching, numbness, and tingling in the lower back and severe pain when lying down, as well as difficulty standing and walking for long periods of time. Following examination, the examiner concluded that it was at least as likely as not that the Veteran's left hip disability was proximately due to or the result of the service-connected left knee disability. The rationale was, "Based on information reviewed it is at least as likely as not that the veterans left knee with instability contributed to his fall and thus left tibial lateral plateau fracture with residual leg length discrepancy. The latter ultimately contributing to his left hip condition."

A June 2017 VA medical opinion is of record as to the left hip. The medical professional noted review of the claims file, including the April 2017 VA hip examination. Following review of the evidence, the medical professional concluded that it was less likely than not that the Veteran's left hip strain was proximately due to or a result of his left knee meniscectomy. "There is no indication of an alteration in gait so severe following that medial meniscectomy that he would have developed a hip strain. In fact, a hip strain diagnosis does not appear in the medical records until the recent compensation pension examination report. I would have anticipated seeing a lot more reference to hip problems, following the knee surgery, if in fact a causal relationship existed."

As to the left hip claim, the Board finds the April 2017
file, including the April 2017 VA hip examination. Following review of the evidence, the medical professional concluded that it was less likely than not that the Veteran's left hip strain was proximately due to or a result of his left knee meniscectomy. "There is no indication of an alteration in gait so severe following that medial meniscectomy that he would have developed a hip strain. In fact, a hip strain diagnosis does not appear in the medical records until the recent compensation pension examination report. I would have anticipated seeing a lot more reference to hip problems, following the knee surgery, if in fact a causal relationship existed."

As to the left hip claim, the Board finds the April 2017 and June 2017 medical opinions insufficient on which to base a decision. The April 2017 opinion, as with the back and mental health opinions discussed above, constituted merely a reiteration of the Veteran's lay statements as a rationale for the opinion, rather than providing an actual medical opinion. The June 2017 medical opinion did not provide an opinion regarding aggravation. While the examiner checked the box indicating that the left hip disability was less likely than not proximately due to or a result of the service-connected left knee disability, the rationale clearly contemplated only causation, as most clearly evidenced by the conclusion that a "causal relationship" did not exist. As such, a remand for an addendum opinion discussing both causation and aggravation is necessary.

5. Entitlement to TDIU is remanded.

Finally, because a decision on the above remanded issues could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the TDIU claim is required.

The matters are REMANDED for the following action:

1. Obtain the Veteran's VA treatment records for the period from August 2017 to the present.

2. Schedule the Veteran for a VA examination or examinations for his claimed left ankle/foot, left leg, and left shin disabilities. The examiner must review the claims file.

If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below.

The examiner is asked to provide a response to the following:

(a) Is any diagnosed left ankle/foot, left leg, or left shin disability (or related symptoms that cause functional impairment) at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) proximately due to the Veteran's service-connected left knee disability?

(b) Is any diagnosed left ankle/foot, left leg, or left shin disability (or related symptoms that cause functional impairment) at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) aggravated, i.e., worsened beyond its natural progression, by the Veteran's service-connected left knee disability?

Provide a rationale to support the opinions.

3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's left hip disability is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) (a) proximately due to service-connected disability OR (b) aggravated beyond its natural progression by service-connected disability.

Provide a rationale to support the opinions. In reaching the above opinion, the medical professional should consider, and reconcile to the extent necessary, the April 2017 and June 2017 VA medical opinions outlined above.

4. After the above is complete, readjudicate the Veteran's claims, to include his claim for TDIU. If a complete grant of benefits is not awarded, issue a supplemental statement of the case (SSOC) to the Veteran and his representative.

PAULA B. McCARRON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. J. Houbeck, Counsel

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.

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