Case A25084132

Summary

The veteran, who served in the United States Army from August 1977 to August 1980, appeals the denial of service connection for thoracolumbar degenerative disc disease and the denial of an earlier effective date for his right knee degenerative arthritis claims. The veteran sought an earlier effective date for his right knee condition, arguing that the VA's examination in August 2022 was inadequate and that the evidence supported a higher rating and earlier effective date than what was granted in November 2023. The Board reviewed the August 2022 and July 2023 VA examinations, finding the August 2022 examination adequate, despite the veteran's assertions. The Board determined that the evidence did not support the claimed earlier effective dates for the right knee condition, as the range of motion and instability findings did not meet the criteria for higher ratings prior to July 24, 2023. For the thoracolumbar degenerative disc disease claim, the Board found that the evidence persuasively weighed against service connection, both directly and secondarily. While the veteran had in-service complaints of low back strain, subsequent examinations, including a January 2018 VA opinion, found no nexus to service. The Board also found the veteran's lay statements regarding continuity of symptomatology not credible due to inconsistencies with normal reserve examination reports. The Board denied the secondary claim for back disability, finding that the veteran's service-connected right ankle disability did not cause or aggravate his obesity, nor did his obesity substantially cause his back problems, as per VA precedent. The Board denied all claims.

Rationale

August 2022 VA exam showed flexion limited to 115 degrees, extension to 0 degrees.; 20 percent rating for flexion requires 30 degrees or less.; 20 percent rating for extension requires 15 degrees or less.; No evidence of recurrent subluxation, instability, or ligament tear.

Full Decision Text

Citation Nr: A25084132
Decision Date: 09/30/25	Archive Date: 09/30/25

DOCKET NO. 240513-440763
DATE: September 30, 2025

ORDER

Entitlement to an effective date prior to July 24, 2023, for the award of an initial 20 percent rating for right knee degenerative arthritis is denied.

Entitlement to an effective date prior to July 24, 2023, for the award of an initial 10 percent rating for right knee degenerative arthritis, limitation of extension, is denied.

Entitlement to an effective date prior to July 24, 2023, for the award of an initial 20 percent rating for right knee degenerative arthritis, instability, is denied.

Service connection for thoracolumbar degenerative disc disease is denied.

FINDINGS OF FACT

1. Prior to July 24, 2023, the Veteran's right knee degenerative arthritis was manifested by painful motion and flexion limited to 115 degrees and extension limited to 0 degrees, at worst, with consideration of functional loss due to pain.

2. Prior to July 24, 2023, the Veteran's right knee degenerative arthritis was not manifested by recurrent subluxation, lateral instability, or patellar instability.

3. The Veteran's back disability is not secondary to his service-connected right ankle disability; was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an effective date prior to July 24, 2023, for the award of an initial 20 percent rating for right knee degenerative arthritis have not been met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.71a, Diagnostic Code (DC) 5003-5260.

2. The criteria for entitlement to an effective date prior to July 24, 2023, for the award of an initial 10 percent rating for right knee degenerative arthritis, limitation of extension, have not been met.  38 U.S.C. §§ 5107, 5110; §§ 3.400, 4.71a, DC 5003-5261.

3. The criteria for entitlement to an effective date prior to July 24, 2023, for the award of an initial 20 percent rating for right knee degenerative arthritis, instability, have not been met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.71a, DC 5003-5257.

4. The criteria for service connection for thoracolumbar degenerative disc disease have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active service in the United States Army from August 1977 to August 1980.

In May 2022, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of service connection for a right knee disability and a low back disability most recently addressed in a May 26, 2021 Board decision that was affirmed in April 2022.  In October 2022, the agency of original jurisdiction (AOJ) issued a supplemental claim decision, which found that new and relevant evidence had been received and denied the claims based on the evidence of record at the time of that decision.

In March 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the October 2022 rating decision.  In June 2023, the AOJ issued a HLR decision finding that a duty to assist error had been made.  In November 2023, the AOJ issued the rating decision on appeal, which granted service connection for right knee degenerative arthritis but denied service connection for thoracolumbar degenerative disc disease based on the evidence of record at the time of that decision.

In the May 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.  Therefore, the Board may only consider the evidence of record at the time of the November 2023 AOJ decision on appeal, as well as any evidence submitted
2 rating decision.  In June 2023, the AOJ issued a HLR decision finding that a duty to assist error had been made.  In November 2023, the AOJ issued the rating decision on appeal, which granted service connection for right knee degenerative arthritis but denied service connection for thoracolumbar degenerative disc disease based on the evidence of record at the time of that decision.

In the May 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.  Therefore, the Board may only consider the evidence of record at the time of the November 2023 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182.  38 C.F.R. § 20.303.  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.303, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision.

Earlier effective dates

Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant's application.  38 U.S.C. § 5110(a).

For increased rating claims, 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) potentially allow for an increase in disability compensation of up to one year prior to the date of claim, if it is factually ascertainable based on all evidence of record that an increase in disability had occurred.  See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010) (referencing the "one-year look-back period").  Otherwise, it is the date of receipt of the claim.  38 C.F.R. § 3.400(o)(2).

1. Entitlement to an effective date prior to July 24, 2023, for the award of an initial 20 percent rating for right knee degenerative arthritis is denied.

2. Entitlement to an effective date prior to July 24, 2023, for the award of an initial 10 percent rating for right knee degenerative arthritis, limitation of extension, is denied.

3. Entitlement to an effective date prior to July 24, 2023, for the award of an initial 20 percent rating for right knee degenerative arthritis, instability, is denied.

On May 27, 2022, the Veteran submitted the supplemental claim for service connection for a right knee disability.  The AOJ denied the claim in the October 2022 rating decision.  He sought a higher-level review in March 2023, and the AOJ found duty to assist error in the June 2023 rating decision.  Following additional development, the AOJ granted service connection for right knee degenerative arthritis in the November 2023 rating decision on appeal.  The AOJ assigned an initial 10 percent rating from May 27, 2022, and 20 percent rating from July 24, 2023, for right knee degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5260; assigned an initial 10 percent rating for right knee degenerative arthritis, limitation of extension, from July 24, 2023 under Diagnostic Code 5261; and assigned an initial 20 percent rating for right knee degenerative arthritis, instability, from July 24, 2023 under Diagnostic Code 5257.

The Veteran argues that the "effective date of July 24, 
 in the November 2023 rating decision on appeal.  The AOJ assigned an initial 10 percent rating from May 27, 2022, and 20 percent rating from July 24, 2023, for right knee degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5260; assigned an initial 10 percent rating for right knee degenerative arthritis, limitation of extension, from July 24, 2023 under Diagnostic Code 5261; and assigned an initial 20 percent rating for right knee degenerative arthritis, instability, from July 24, 2023 under Diagnostic Code 5257.

The Veteran argues that the "effective date of July 24, 2023, for an increase for right knee degenerative arthritis and service connection for right knee instability and limitation of extension is based on the most recent examination. Prior to that, the VA relied on an inadequate examination record to deny service connection and assign a low rating."  See May 2024 Appellate Brief.  He asserts that he should be granted an effective date earlier than July 24, 2023, for the award of an initial 20 percent rating for the knee's limitation of flexion, the award of an initial 10 percent rating for the knee's limitation of extension, and the award of an initial 20 percent rating for the knee's instability.  Id.  The appeal period under review begins on May 27, 2022, the effective date of service connection for right knee degenerative arthritis.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, found in 38 C.F.R. Part 4.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

"Staged" ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods when the service-connected disability exhibits symptoms warranting different ratings irrespective of whether an initial or established rating.  Hart v. Mansfield, 21 Vet. App. 505, (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings).  For initial increased rating claims, those stemming from the decision granting service connection, the most relevant evidence is "the evidence of record from the time of a veteran's application" for service connection.  Fenderson, at 127.

Under Diagnostic Code 5260, for limitation of flexion of the leg, a 10 percent rating is warranted for flexion limited to 45 degrees.  A 20 percent rating is warranted for flexion limited to 30 degrees.  A 30 percent rating is warranted for flexion limited to 15 degrees.

Under Diagnostic Code 5261, for limitation of extension of the leg, a 10 percent rating is warranted for extension limited to 10 degrees.  A 20 percent rating is warranted for extension limited to 15 degrees.  A 30 percent rating is warranted for extension limited to 20 degrees.  A 40 percent rating is warranted for extension limited to 30 degrees.  A 50 percent rating is warranted for extension limited to 45 degrees.

Diagnostic Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability.

For recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.  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 (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.  A maximum 30 percent rating is warranted for unrepaired
 assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.  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 (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.  A maximum 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.

For patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) 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 one of the following: A brace, cane, or walker.  A maximum 30 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 and either a cane or a walker.

Note (1) provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.  Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."  

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

During the August 2022 VA examination, the Veteran was diagnosed with right knee degenerative arthritis.  He reported knee pain with popping and cracking.  He reported he
 record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."  

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

During the August 2022 VA examination, the Veteran was diagnosed with right knee degenerative arthritis.  He reported knee pain with popping and cracking.  He reported he uses Tylenol and ice.  He reported moderate flare-ups of worsening pain that occurred at least once a week that lasted a day or so.  He described his functional loss as "Can't walk long distances without pain, can't go up a lot of stairs without pain, can't run."  He did not report any instability or recurrent subluxation of the knee.  He reported effusion in the knee once or twice a month for a day or so.  The initial range of motion (ROM) test showed flexion to 120 degrees and extension to 0 degrees.  Passive ROM was same as active ROM.  Flexion exhibited pain during active and passive motions.  Active and passive motions exhibited pain; extension, weight-bearing, non-weight-bearing, and on rest/non-movement did not exhibit pain.  Pain did not cause functional loss.  There was crepitus.  There was mild localized tenderness.  He was able to perform repetitive-use testing with at least three repetitions that resulted in flexion to 115 degrees and extension to 0 degrees.  Pain caused the functional loss. The examiner noted that the Veteran was not examined immediately after repeated use over time or during a flare-up, but procured evidence suggested that pain caused functional loss after repeated use over time or during a flare-up; estimated flexion was 115 degrees and extension was 0 degrees.  An additional factor contributing to the disability was disturbance of locomotion, which the Veteran described as "can't walk longs distance or run without pain."

The examiner noted that there was no muscle atrophy or ankylosis.  The examiner noted that there was no recurrent subluxation or persistent instability, and no ligament tear (sprain).  The examiner noted that the Veteran did not require a prescription of cane, walker, crutches, or brace.  Thee examiner noted that there was no patellar instability.  The examiner noted that the Veteran has not had surgical repair of the knee for patellar instability.  The examiner noted that he did not require a prescription of cane, walker, crutches, or brace.  The examiner noted that the Veteran did not have any recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, or any other tibial or fibular impairment.  The examine noted that he did not have a meniscus (semilunar cartilage) condition.  The examiner noted that the Veteran had an arthroscopic washout of the knee in 2016, but that there were no residual signs or symptoms due to meniscectomy, arthroscopic ligament repair or other knee surgery.  The examiner noted that a July 2020 x-ray showed moderate tricompartmental degenerative changes.  The examiner noted that the Veteran's diagnosed condition impacts his ability to work.  He noted that the Veteran would have pain with walking long distances, running, or going up and down a lot of stairs.

During the July 2023 VA examination, the Veteran was diagnosed with right knee joint osteoarthritis, right knee instability, and status post right knee arthroscopic meniscal repair in 2016.  He reported almost constant aching to grinding right knee pain.  He stated that this pain occurred with activities which require kneeling or squatting, with prolonged walking or standing, and with prolonged driving for more than approximately one hour.  He stated his knee was treated by joint injections, physical therapy, knee brace, and Tylenol arthritis.  He reported flare-ups that occurred every 5-6 days with 1-4 hours in duration, comprised of severe stabbing and aching pain.  He described his functional loss as difficulty standing or walking for more than approximately 30 to 40 minutes without experiencing an aching.  The initial ROM test showed flexion to 75 degrees and extension to 5 degrees.  Passive ROM was same as active ROM.  Flexion and extension exhibited pain during active and passive motions.  There was pain with weight-bearing, active motion and passive motion, but not with non-weight-bearing and on rest/non-movement.
.  He stated his knee was treated by joint injections, physical therapy, knee brace, and Tylenol arthritis.  He reported flare-ups that occurred every 5-6 days with 1-4 hours in duration, comprised of severe stabbing and aching pain.  He described his functional loss as difficulty standing or walking for more than approximately 30 to 40 minutes without experiencing an aching.  The initial ROM test showed flexion to 75 degrees and extension to 5 degrees.  Passive ROM was same as active ROM.  Flexion and extension exhibited pain during active and passive motions.  There was pain with weight-bearing, active motion and passive motion, but not with non-weight-bearing and on rest/non-movement.  Pain did not result in functional loss.  There was crepitus and moderate localized tenderness.  He was able to perform repetitive-use testing at least three times, and pain resulted in flexion to 50 degrees and extension to 5 degrees.  He was not being examined immediately after repeated use over time, but procured evidence suggested that pain caused functional loss; the estimated flexion was 50 degrees and extension was 10 degrees.  He was not examined during a flare-up, but procured evidence suggested that pain caused functional loss; estimated flexion was 30 degrees and extension was 10 degrees.  An additional factor contributing to the disability was disturbance of locomotion; the examiner noted that the Veteran was observed ambulating with a moderate antalgic gait which he attributed to his chronic right knee and ankle pain.

The examiner noted that there was no muscle atrophy or ankylosis.  The examiner noted that there was recurrent subluxation or persistent instability, but no ligament tear (sprain); the examiner noted that the Veteran required a prescription of braces for ambulation.  The examiner noted that there was no recurrent patellar instability.  The examiner noted that the Veteran did not have any recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, or any other tibial or fibular impairment.  The examiner noted that the Veteran had an arthroscopic meniscal repair in 2016, and that he had daily knee pain with frequent flare-ups and instability.  The examiner noted that the Veteran used a right knee brace for right knee instability.  The examiner noted that a July 2023 x-ray showed tricompartmental degenerative joint disease.  The examiner noted that the Veteran's diagnosed condition impacts his ability to work.  The examiner noted that the Veteran would be poorly suited to work in a vocation which required prolonged standing or prolonged walking during the course of any given workday as a result of his chronic right knee pain with instability.

The Veteran's VA treatment records intermittently show treatment for right knee condition.  Notably, an August 2022 VA record shows he continues to have right knee pain; it also shows "ROM of the R knee is full there is mild-moderate crepitus no effusion or edema."  A June 2023 VA record shows right knee pain; it also shows that the Veteran "is active, admits to gym about 3-4 days weekly. Is able to accomplish ADL/IADL w/o interference from knee pain."

The claims file did not reveal relevant private treatment records for the appeal period under review.

Upon review of the evidence of record, the Board finds that it is not factually ascertainable that prior to July 24, 2023, the Veteran's right knee degenerative arthritis was manifested by limitation of flexion to 30 degrees or less, limitation of extension to 10 degrees or more, or recurrent subluxation, lateral instability, or patellar instability. 

The August 2022 VA examination report reflects that he had right knee flexion limited to 115 degrees, at worst, even considering functional loss after repeated use over time and during flare-ups.  A 20 percent rating requires flexion to 30 degrees or less, which is far from 115 degrees.  Further, the August 2022 VA record noted, "ROM of the R knee is full."  The August 2022 VA examination report showed extension to 0 degrees even with consideration of functional loss after repeated use over time and during flare-ups.  A compensable rating requires extension limited to 10 degrees, which was not shown during the examination.  The August 2022 VA examiner thoroughly assessed whether the Veteran had any recurrent subluxation, lateral instability, or patellar instability, but the tests were all negative, and he did report any instability during the examination.  Thus, a compensable rating was not warranted.  

In view of the foregoing, the Board finds that it was not factually ascertainable that the Veteran's right knee exhibited flexion limited to 30 degrees or less, extension limited
 R knee is full."  The August 2022 VA examination report showed extension to 0 degrees even with consideration of functional loss after repeated use over time and during flare-ups.  A compensable rating requires extension limited to 10 degrees, which was not shown during the examination.  The August 2022 VA examiner thoroughly assessed whether the Veteran had any recurrent subluxation, lateral instability, or patellar instability, but the tests were all negative, and he did report any instability during the examination.  Thus, a compensable rating was not warranted.  

In view of the foregoing, the Board finds that it was not factually ascertainable that the Veteran's right knee exhibited flexion limited to 30 degrees or less, extension limited to 10 degrees or more, or recurrent subluxation, lateral instability or patellar instability prior to July 24, 2023.  As such, an earlier effective date was not warranted.

The Veteran asserted that prior to [July 24, 2023], the VA relied on an inadequate examination record to deny service connection and assign a low rating.  The Veteran did not further explain as to how the VA examination was inadequate.  

The Board, however, finds the August 2022 VA examination is adequate.  The examination is responsive to the guidance provided in Correia and Sharp.  Further, the examiner considered the Veteran's reports of flare-ups and functional loss and provided ROM estimates.  The examiner thoroughly examined whether the Veteran exhibited any recurrent subluxation, lateral instability, or patellar instability.  The August 2022 VA examiner is a medical expert who recorded his findings based on a concurrent in-person examination. The examination report addressed the Veteran's lay statements and documented relevant clinical findings.  The examiner also indicated that he reviewed the Veteran's claims file.  Therefore, the Board finds that the August 2022 VA examination is adequate for rating purposes.  The evidence of record indicates that the Veteran's right knee condition worsened between August 2022 and July 2023.  It is during that time that his right knee showed instability, abnormal ROM in extension, and significantly more decreased ROM in flexion.

In conclusion, the evidence of record persuasively weighs against the Veteran's claims.  It was not factually ascertainable that the Veteran's right knee exhibited right knee degenerative arthritis with flexion limited to 30 degrees or less, right knee extension limited to 10 degrees or more, or recurrent subluxation, lateral instability or patellar instability prior to July 24, 2023.  As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (2021).

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023).

VA's General Counsel has provided a precedential opinion finding that obesity can be considered "an intermediate step" for service-connection
, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023).

VA's General Counsel has provided a precedential opinion finding that obesity can be considered "an intermediate step" for service-connection if the evidence shows that a service-connected disability "caused the veteran to become obese" and the obesity caused by the service-connected disability "was a substantial factor in causing" the current disability, and that the current disability "would not have occurred but for" the obesity caused by the service-connected disability."  VAOPGCPREC 1-2017. The Board is bound by precedential opinions of VA's General Counsel.

Moreover, in Walsh v. Wilkie, the Court of Appeals for Veterans Claims (Court) further held that the Board needs to consider the obesity-intermediate step theorem predicated on aggravation where appropriate. Thus, the Court held that proper interpretation of VAOPGCPREC 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability caused the veteran to become obese/aggravated the veteran's obesity; (2) if so, whether the obesity/aggravation of obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused/obesity aggravated by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Walsh v. Wilkie, 32 Vet. App. 300 (2020).

Service connection for thoracolumbar degenerative disc disease is denied.

The Veteran contends that his current back disability is secondary to his service-connected right ankle disability, to include as a result of weight gain.  See May 2022 VA Form 20-0995.

Because the AOJ adjudicated service connection on a secondary, as well as a direct basis, in the rating decision on appeal; the Board will also address both theories.

In the prior November 2023 rating decision, and in the current rating decision on appeal, the AOJ made favorable findings that the Veteran has a diagnosis of degenerative disc disease, that he had a back complaint in service, and that he is service-connected for the primary disability of right ankle, lateral collateral ligament status post sprain. These will not be disturbed by the Board. See 38 C.F.R. § 3.104(c).  

Review of the Veteran's service treatment records (STRs) shows that the Veteran was treated for complaints of low back pain in September 1978, when the assessment was muscle strain, and in April 1980, when the Veteran stated that he had back pain after moving lockers. At that time, the assessment was acute low back strain. On July 1980 examination for separation from service, clinical evaluation of the spine was normal. Additional examinations were performed in connection with the Veteran's service in the National Guard.  Those examinations, performed in December 1981, August 1984, and March 1988, all showed clinical evaluations of the spine to be normal.

An examination was conducted by VA in January 2018. At that time, the diagnosis was lumbar strain, status post-surgery in 2000. After examination and review of the record, the examiner opined that the Veteran's lumbar back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale included review of the medical records that showed no restriction on physical training on examinations for National Guard service. The Veteran was noted to have a fall on his back in 1996 and, in 1997, it was reported for clinical purposes that the Veteran had fallen down in January 1996 and had then lifted some scales at work after which he had developed left leg pain radiating to his hip. He had lumbar surgery in 2000 that was not during a period of active duty and less likely due to physical training beginning in 1978. It was noted that the Veteran had undergone surgery in 1997 and 2000 that involved a partial hemi-laminectomy and discectomy of lumbar spinal segments. It was also noted that the Veteran had had progressive back and hip pain beginning about two months ago after moving furniture.
 was noted to have a fall on his back in 1996 and, in 1997, it was reported for clinical purposes that the Veteran had fallen down in January 1996 and had then lifted some scales at work after which he had developed left leg pain radiating to his hip. He had lumbar surgery in 2000 that was not during a period of active duty and less likely due to physical training beginning in 1978. It was noted that the Veteran had undergone surgery in 1997 and 2000 that involved a partial hemi-laminectomy and discectomy of lumbar spinal segments. It was also noted that the Veteran had had progressive back and hip pain beginning about two months ago after moving furniture. Therefore, it was less likely than not service-connected.

An examination was conducted by VA in August 2022.  The Veteran was diagnosed with degenerative disc disease.  He reported the onset of the condition was around 1979.  He stated that one of the wall lockers that he and someone else was moving fell on top of him, and he felt like something popped in his back.  He stated that after getting out of the military, he continued to have pain in his back.  He reported that in early 1980s, he slipped on some ice and re-aggravated his back, and things went downhill from there.  He stated he had a workman's comp claim when he was in the highway patrol.  He reported he had his first surgery in 1999 to decompress his back.  He stated that in 2000, he bent over and picked up a sandwich bag, and he reinjured his back and had to have a surgery in 2000.  A nexus opinion was not provided.

In an October 2022 VA opinion, the examiner opined that the Veteran's back disability is less likely than not due to or the result of his service-connected right ankle disability.  The examiner noted that while the Veteran was noted to have some back issues in service, he self-reported a workman's comp injury affecting his back after service.  The examiner also noted that there is no evidence he could locate in the record that the Veteran's ankle condition affected his back to a significant degree.  The examiner noted that it is for these reasons it is felt that the Veteran's back issues are less likely than not related to his service-connected right ankle condition.

In a July 2023 VA opinion, the examiner opined that the Veteran's back disability was less likely than not due to or the result of his service-connected right ankle disability, including as a result of weight gain.  The examiner reviewed the claims file, including the Veteran's lay statements, and concluded that it is less likely than not that the Veteran's obesity was caused or aggravated by his service-connected right ankle lateral collateral ligament injury, or that his back problems were caused by the Veteran's development of obesity. The examiner provided a lengthy rationale for the opinion.

Analysis

A September 2023 VA record shows the Veteran has degenerative changes in the lumbar spine. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331.

Based on the foregoing, it is not shown that the Veteran's had a lumbar spine disease that was shown to be chronic in service, manifested to a compensable degree within a presumptive period, or that was noted in service with attributable continuity of symptomatology. Medical records show the Veteran was not diagnosed with lumbar spine arthritis until many years after his separation from service and years outside of the applicable presumptive period.

The Veteran is competent to report experiencing symptoms of back pain consistently since discharge; however, the Board finds the reports of continuity of symptomatology not credible. The Veteran's reports are internally inconsistent with the reserve examination reports, which show that clinical evaluation of the spine was normal in 1981, 1984 and 1988. This is well after service and well outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Similarly, although the Veteran has argued that the examination at service separation was cursory, it is again noted that subsequent clinical evaluations of the Veteran's spine during his National Guard service were normal. The Board, therefore, gives more probative weight to the competent medical evidence, which establishes that the Veteran's current back symptoms are instead attributable to post-service back injuries as detailed in the January 2018 VA medical opinion. There is no other medical opinion, or other competent evidence, in the record to the contrary.

Service connection for a low back disability may still be granted on a direct basis; however, the evidence persuasively weighs against finding that a medical nexus exists between the Veteran's post-surgical lumbar
Fed. Cir. 2006). Similarly, although the Veteran has argued that the examination at service separation was cursory, it is again noted that subsequent clinical evaluations of the Veteran's spine during his National Guard service were normal. The Board, therefore, gives more probative weight to the competent medical evidence, which establishes that the Veteran's current back symptoms are instead attributable to post-service back injuries as detailed in the January 2018 VA medical opinion. There is no other medical opinion, or other competent evidence, in the record to the contrary.

Service connection for a low back disability may still be granted on a direct basis; however, the evidence persuasively weighs against finding that a medical nexus exists between the Veteran's post-surgical lumbar disability and any in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. 

This is specifically addressed by the VA examiner who evaluated the Veteran in January 2018. While the Veteran believes his back disability is related to an in-service injury, event, or disease, including the acute back strains in 1978 and 1980, he is not competent as a lay person to provide a nexus opinion in this case. The issue is medically complex, as it requires specialized medical education, including knowledge of the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).

For these reasons, the Board finds that the evidence persuasively weighs against the Veteran's claim for service connection for the lumbar spine disability on a direct or presumptive basis.  

The Board also finds that the evidence persuasively weighs against a finding that service connection is warranted on a secondary basis.  That is, whether the Veteran's back disability was caused or aggravated by his service-connected right ankle disability.

The Board finds the October 2022 and January 2024 VA opinions to be probative.  The October 2022 examiner noted that there is no evidence in the record showing that the Veteran's ankle condition affected his back to a significant degree.  

The January 2024 examiner opined that a causal relationship between the Veteran's service-connected right ankle disability and his current back disability is not shown, even when considering whether obesity acts as an intermediate step between.  The examiner explained, in detail, that obesity is a multifactorial disease affected by many factors. The examiner opined that the Veteran's service-connected right ankle disability did not cause or aggravate the Veteran's obesity. A cogent rationale was provided for this opinion. 

The Veteran has not provided a competent medical opinion to the contrary.

Based on the VA examiner's consideration of the relevant factors, and other factors such as the Veteran's post-service workman's comp injury to his back after service while with the highway patrol, the examiner concluded that the Veteran's current back disorder is not secondary to his service-connected right ankle through the claimed weight gain.  The examiner opined, based on review of the evidence and relevant medical literature, that it is less likely than not that the Veteran's obesity was caused or aggravated by his service-connected right ankle lateral collateral ligament injury. 

The Board finds that the October 2022 and January 2024 VA opinions probative because they were based on review of the Veteran's medical history and claims file, were completed by licensed medical professionals, and include cogent rationale with clear conclusions.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  There are no medical opinions of record supporting the Veteran's contention.

The Board recognizes the Veteran's belief that his back disability is secondary to his service-connected right ankle disability, but finds this of limited probative value in assessing his claim.  Although lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau, 492 F.3d at 1376-77. In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his claimed disability, especially considering the VA examiners' conclusions to the contrary and the fact that the evidence fails to demonstrate the Veteran's back disability was secondary to his service-connected right ankle disability. Because the examiner opined that the service-connected right ankle disability neither caused the Veteran to become obese nor  aggravated the Veteran's obesity,
 of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau, 492 F.3d at 1376-77. In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his claimed disability, especially considering the VA examiners' conclusions to the contrary and the fact that the evidence fails to demonstrate the Veteran's back disability was secondary to his service-connected right ankle disability. Because the examiner opined that the service-connected right ankle disability neither caused the Veteran to become obese nor  aggravated the Veteran's obesity, it therefore stands that the Veteran's claimed back disability is not related to weight gain as a result of the service-connected right ankle disability as he claims. Without a causal relationship between the service-connected right ankle disability and the claimed back disability, service connection on a secondary basis is not warranted. 

Lastly, in the May 2024 Appellate Brief that was submitted along with the May 2024 VA Form 10182, the Veteran raised service connection on a secondary basis to his service-connected right knee disability and submitted an article titled 'What causes and links lower back and knee pain?'  

The Board finds that a remand for development on service connection on a secondary basis to his service-connected right knee disability is not warranted as there was no pre-decisional duty to assist error based on the receipt of this brief.

The Board further finds that the article is not sufficient to establish service connection.  The United States Court of Appeals for Veterans Claims (the Court) has held that "generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive."  Mattern v. West, 12 Vet. App. 222, 228 (1999).  Here, the article submitted is too general in nature and do not specifically address the Veteran's circumstances, nor was it accompanied by an opinion of a medical expert discussing the specific facts of the Veteran's case.  As such, it is not sufficient to establish the required medical nexus between the Veteran's back disability and his service-connected right knee disability.

As the weight of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application to the instant appeal.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  

For the reasons discussed anove, the claim of service connection for thoracolumbar degenerative disc disease, to include as secondary to service-connected right ankle disability, is denied.

 

 

D. JOHNSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Jake Choi, Attorney Advisor

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.