Citation Nr: 1318002 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 05-00 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a left knee disability, to include as secondary to the service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to January 1987. This matter comes before the Board of Veterans' Appeals (Board) from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In May 2007, the Board remanded for additional development and due process concerns. FINDING OF FACT The left knee disability, currently diagnosed as osteoarthritis, has been aggravated by the service-connected right knee disability. CONCLUSION OF LAW The criteria for service connection of a left knee disability, currently diagnosed as osteoarthritis, have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Under section 3.310 of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service connected disease or injury. Disability which is proximately due to or the result of a service connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service connected disability aggravates a nonservice connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Pre-service private medical records indicate that in March 1964, osteoporosis was found in the Veteran's knees which was attributed to rickets and scurvy. The osteoporosis was no longer demonstrated by June 1964, though there was a healed genuvarus deformity. A November 1964 record notes that examination of the knees indicated that the previously reported periostitis had healed and the epiphyses appeared to be developing normally. The Veteran was assessed with scurvy and rickets, which had shown good healing. In November 1975, the Veteran complained of bilateral knee pain. X-ray images were consistent with bilateral Osgood-Schlatter disease. A March 1977 treatment record reflects a finding of quiescent Osgood-Schlatter's Disease. A March 1983 service enlistment examination record indicates that clinical evaluation of the lower extremities was normal and that the Veteran denied a history of "trick' or locked knee." A July 1984 treatment record reflects the Veteran's history of painful left calf for 12 hours. After examination, he was assessed with tendonitis. An August 1984 treatment record reflects the Veteran's history of pain in both knees. The Veteran reported that he had an "old knee injury" eight years earlier. After examination, the Veteran was assessed with bilateral chondromalacia patella. A consultation with a physician was ordered. The consultation report reflects the Veteran's "long history of knee problems" with a recent injury playing basketball. The record notes that the mechanism of injury was medial stress/flexion, which resulted in swelling, pain, and tenderness over the left medial and infrapatellar area. After examination, the Veteran was diagnosed with left medial collateral ligament strain, rule out left medical meniscus tear. An orthopedic consultation was ordered. The orthopedic consultation record reveals a diagnosis of mild chondromalacia patella with no evidence of medical cruciate ligament strain. The record adds that a radiologist saw early degenerative joint disease of the patellar femoral joint, no other changes. A December 1984 service X-ray report reveals a finding of Osgood-Schlatter disease. February 1986 service treatment records and Medical Board report reflect treatment for a knee injury. The records indicate varus/valgus stress tests were negative and there was no apparent effusion. Although one record notes an impression of left knee injury of questionable etiology, the other records, including an orthopedic consultation report, indicate that the injury affected the right knee, and the Veteran subsequently underwent a right knee arthroscopy. An April 1986 service treatment record reflects the Veteran's history of torn meniscus of the left knee, and a July 1986 treatment record reflects the Veteran's history of arthroscopic surgery on the left knee. However, previous and subsequent treatment records indicate that it was the right knee, not the left, which was treated for a suspected torn meniscus and underwent an arthroscopy. Further, a September 1986 entry appears to correct the diagnosis from left lateral meniscus tear to chondromalacia patella lateral femoral condoyle of the right knee. A September 1986 treatment record reflects the Veteran's history of prior problems with the left knee to at least 1984 with questionable Osgood Schlatter disease and valgus stress in February 1986 while playing basketball. Examination revealed full range of motion, no gross atrophy, no clicks, and no instability. The Veteran was assessed with probable "CMP." However, a subsequent September 1986 record indicates that the Veteran presented for follow up of the right knee, suggesting the earlier findings were related to the right knee and not the left knee. A March 1987 VA treatment record reflects the Veteran's history of a valgus-type injury to the bilateral knee, approximately one year earlier while playing basketball. The record notes that the Veteran underwent an arthroscopy which resulted in a diagnosis of torn lateral meniscus. The Veteran reported that he continued to have locking, pain, swelling, and clicking. Examination revealed no effusion, normal range of motion, and negative varus-valgus and Lachman's tests. A December 1987 enlistment examination record reflects a negative history as to "trick' or locked knee." The Veteran did report a history of injury and treatment for the right knee. A January 1989 VA treatment record reflects a history of left knee pain. A December 1989 VA examination given in conjunction with a claim for service connection for a right knee disability revealed that neither knee had evidence of fracture, dislocation, or other bony destruction, and both joint spaces were preserved. A September 1990 private treatment record reflects the Veteran's history of left knee swelling after playing football. He denied any type of injury or collision or previous problems with the left knee. After examination, the Veteran was assessed with second degree torn medical cruciate ligament, possible torn medial meniscus. Follow-up evaluation in October revealed pain and tenderness with varus stress but no laxity. See Landsdowne Orthopedic Group treatment records. The Veteran underwent magnetic resonance imaging (MRI) and an arthroscopy of the left knee in December 1990, resulting in a diagnosis of degenerative tear of medial meniscus. The December 1990 records reiterate the Veteran's history that he developed pain, swelling, and catching in the left knee after playing football. He again denied injury. See December 1990 D.H.S. treatment records. A February 1991 VA treatment record reflects the Veteran's history of bilateral knee stiffness, worse in the left knee, for the previous two to four weeks. He also reported a history of locking and indicated that he had undergone arthroscopic surgery on each knee. After examination, he was assessed with osteochrondritis ossicans. A March 1991 VA treatment record reflects the Veteran's history of pain, popping, and stiffness in the left knee. After examination, he was assessed with arthritis. An April 1991 VA examination record reflects the Veteran's history of arthroscopic surgery on the left knee in November 1990. The Veteran stated that he had not had any injuries to his left knee and that his left knee disability was due to problems with the abnormal distribution of weight resulting from his right knee disability. Physical examination revealed that the Veteran walked with a limp favoring his right lower extremity; however, his posture and carriage were normal and the size, contour, and muscular development were normal. There was no swelling, tenderness, or deformity of either knee but there was evidence of old Osgood-Schlatter disease over the tibial tubercles. There was crepitus over the medial portion of the left knee but full range of motion. The diagnosis was history of arthroscopic surgery of the left knee that was symptomatic with no functional impairment noted. A left knee x-ray revealed minimal to moderate osteoarthritis with no other bone or joint pathology. May and June 1991 VA treatment records reflect the Veteran's history of bilateral knee pain and locking. After examination, the Veteran was assessed with patellofemoral pain with questionable meniscal tear or loose body based on the history of locking. An August 1991 arthrogram revealed no meniscal tear, fracture, or bone destruction. April 1991 radiographic images revealed minimal to moderate osteoarthritis. A March 1993 VA treatment record reflects the Veteran's history of "long-term" bilateral knee pain. The record reflects a determination that it was believed the chronic knee pain was related to overuse. July 1996 treatment records reflect the Veteran's history of pain and intermittent buckling and popping. The Veteran also reported a history of bilateral knee trauma "years ago." The report reflects a post-operative diagnosis of left knee synovitis and chondromalacia, lateral femoral condyle. Subsequent records reflect continued complaints of knee pain and findings of arthritis and internal derangement. See, e.g., May 2001 VA treatment record; March 2002 VA radiographic report. A March 2002 VA examination record notes treatment for bilateral knee pain beginning in August 1984, which was diagnosed as bilateral chrondromalacia patella. The record reports that the Veteran slightly favored his right knee when walking. After examination, the examiner diagnosed postoperative status lateral meniscectomy left knee dating from 1989. The examiner reported that the "finding of a radial lateral meniscus tear was substantiated in an arthroscopy of 1989 with suggestion that there had been chondromalacia of the left knee in 1986 and 1987." X-ray images showed minimal degenerative changes. A June 2003 VA examination record reflects the Veteran's history of problems with his left knee since 1990. The Veteran reported his belief that his left knee disability was related to favoring his left knee due to his right knee disability. After examination, the assessment was chronic residuals of left knee meniscus tear and cruciate ligament repair. The examiner opined that it was not at least as likely as not that the left knee pathology was related to compensatory changes secondary to the service-connected right knee disability. The examiner explained that the pathologies were traditionally of traumatic nature. The examiner noted that the Veteran specifically denied any traumatic injuries or issues regarding the left knee. The examiner added, "therefore, compensatory changes are not traditionally the causation of this form of pathology, thus providing the foundation upon which this opinion is rendered." A February 2005 surgical report indicates that an arthroscopy and partial medial meniscectomy were performed, which revealed a medial meniscus tear of the left knee. The physician who performed the surgery, and who had previously treated the Veteran, submitted a statement expressing his opinions that the left knee "ha[d] taken a bit of abuse" and that the right knee disability had "exacerbated his underlying conditions and made [the Veteran's] left knee a little worse." See March 2005 Anderson statement. A June 2005 VA treatment record reflects an orthopedic physician's opinion that the right knee injury likely contributed to great left knee stress and the development of left knee pain. The assessment was likely moderate meniscal resection and cartilage malacia. An April 2008 VA examination record reflects the examiner's determination that the conditions noted prior to the Veteran's entrance into service "would have had no bearing on the subsequent knee conditions." The examiner explained that the metabolic conditions noted in 1965 and the Osgood-Schlatter disease in 1975 were not related to any intra-articular pathology and had resolved prior to the Veteran's entry into military service. The examiner noted that the previous VA examiner determined the left knee disability was not likely secondary to the right knee disability because the left knee pathology was secondary to trauma after he left the military. The examiner further noted that a private physician provided a positive opinion in February 2005. The examiner found the private opinion "very nonspecific," explaining that there was "no indication that [the opinion] was based upon knowledge of the Veteran's prior right knee surgeries or right knee injuries or specific knowledge of the prior left knee history." The examiner concluded that the "non-specific comments of 'taken a bit of abuse over time' and 'made the left knee a little worse' [were] quite non-specific and cannot be concluded to determine any specific opinion based upon fact." After examination, the examiner diagnosed chondromalacia and mensical tears of the left knee. The examiner opined that the Veteran's left knee condition began after trauma. The examiner found no evidence in the claims file or on physical examination that the Veteran had cruciate ligament pathology. The examiner opined that the Veteran's left knee condition developed after service and was related to injuries incurred after service and was not related to the right knee disability. The examiner stated that it would be speculative to give an opinion about aggravation and that one could "just as well speculate that the left knee was making the right knee worse." In a September 2008 addendum, the examiner noted review of newly obtained records associated with the left knee arthroscopies but reported that the new evidence contained "no information that provides any additional data than that already discussed." A March 2009 VA treatment record indicates that X-ray imaging revealed osteoarthritis of both knees. A May 2009 opinion from the examiner who performed the April 2008 VA examination indicates that the examiner reviewed all available records. The examiner indicated that it was "known and accepted by medical records that the Veteran's left knee was injured in football in 1990 after leaving the military." The examiner explained that there was no relationship between the current left knee disability and service. The examiner believed the left knee disability was the result of the football injury in 1990. Based on that finding, the examiner believed the left knee disability was not caused by the right knee disability. Regarding any aggravation, the examiner found it less likely than not that the left knee condition had been aggravated by the right knee disability. The examiner expressed a belief that the private physician's opinion as to aggravation was "rather vague" and should not be "taken as truth." A November 2009 opinion from a VA orthopedic physician reflects a finding that the right knee disability "contributed" to the Veteran "putting extra stress on [the] left knee" which "lead to the development of problems with both knees." A March 2010 VA examination record reflects the examiner's findings that the Veteran's subjective complaints were "way out of proportion to the objective X-ray and known physical findings." After examination, the examiner diagnosed bilateral chondromalacia of the patella. The examiner determined that the Veteran did have symptoms of pain during service. However, the examiner did not think the Veteran had a "significant disability" in the left knee as a direct result of events which occurred while on active duty. An October 2011 VA examination record reflects a diagnosis of degenerative joint disease. The examiner determined that the in-service diagnosis of chondromalacia was wrong. The examiner explained that a diagnosis of chondromalacia is not valid outside an arthroscopy or MRI. The examiner added that chondromalacia of the patella was not shown on arthroscopy in 1996. The examiner determined that the in-service diagnosis should have been retropatellar pain syndrome. The examiner reported that, based on the evidence of record, to include the 8-year history of knee pain following injury from 1984, there was no justification for service connection of the left knee condition. The VA examiner provided an addendum in July 2012. The examiner reported that the claimed left knee disability was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran had Rickets as a child with genu vara in 1965 and Osgood Schlatter in 1975, which produce knee pain and contribute to progressive arthritis. The examiner reported that the Veteran injured the knee playing football in 1990 and that findings in December 1990 arthroscopy showed stable knee with no patella abnormality; there was only a meniscal abnormality. The examiner added that a July 1996 arthroscopy showed chondromalacia of the femoral condyle laterally without evidence of chondromalacia of the patella. The examiner found the patella diagnosis in service was refuted by the subsequent examination and that chondromalacia patella could not have existed in 1984. In other words, the physician found the in-service diagnosis of chondromalacia was wrong. The examiner added that service did not aggravate the natural course of the left knee. The examiner also opined that the claimed left knee condition was less likely than not due to or the result of the right knee disability. The examiner explained that the left knee condition existed prior to service and the progression was not affected by the right knee injury. The examiner found the main injury to the left knee occurred in 1990 after service. The examiner again noted that the 1990 arthroscopy only revealed degenerative meniscus and that the subsequent arthritis could be contributed to the multiple arthroscopies since 1990 from subsequent sports injuries. The examiner stated that the right knee disability did not and had not contributed to the condition of the left knee. Another VA medical examination was done in February 2013. The examiner diagnosed early osteoarthritis, chronic patellar tendonitis, and degenerative medial meniscal tearing. The examiner added that the diagnosis of chondromalacia patellae was also appropriate but only as of the 2005 arthroscopy. The examiner explained that the December 1990 and July 1996 operative reports note that the patella was "normal," which indicated that the surgeon found no evidence of chondromalacia at those times. The examiner added that the pre-service Rickets condition was treated and cured when the Veteran was under one year old. The examiner noted the previous examiner's determination that Rickets can contribute to arthritis. The examiner explained that if a genuvarus deformity caused by Rickets continued into adulthood it would result in a higher risk for developing arthritis due to altered stress on the knee. The examiner found no such risk in the Veteran because the genuvarus deformity noted in June 1964 had corrected with growth. The examiner explained that this determination was based on the adult X-rays images which showed normal alignment. The examiner also found the pre-service Osgood-Schlatter resolved with further growth except for some mild localized tenderness remaining over the prominent tibial tubercles which was not worsened by service. The examiner opined that the left knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the record "clearly shows that [the] left knee problems were [. . .] caused by football injury in September 1990." The examiner explained that although the Veteran exhibited symptoms in service which were diagnosed as chondromalacia patella, the December 1990 and July 1996 arthroscopies refuted that diagnosis. The examiner added that the pain is common in physically active individuals. The examiner further opined that the left knee disability was less likely than not proximately due to or the result of the Veteran's right knee disability. The examiner explained that other than the pre-existing Osgood-Schlatter condition, the Veteran did not have a left knee condition until his injury in September 1990. The examiner explained that the diagnosis of chondromalacia patella in service was wrong. The examiner added that the current left knee condition was not the result of aggravation beyond normal progression by the service-connected right knee disability but was a direct result of the 1990 injury and subsequent surgeries. However, although the left knee disability was not the result of the right knee disability, the examiner found it "fair to state that the left knee condition since 1990 is aggravated by the pressure of [the] left knee problems causing him to limp and put more stress on the left knee as he favored the right until recently." Service connection is warranted for a left knee disability. Initially, the Board acknowledges the record includes competent opinions that the right knee disability did not cause the left knee disability and that the left knee disability is not related to service (either through date of onset, aggravation, or causation), to include the in-service findings of chondromalacia patella and degenerative changes. These opinions are highly probative, and the Board finds the left knee disability is not related to service and was not caused by the right knee disability. The Board further acknowledges that the record includes competent opinions that the right knee disability has not aggravated the left knee disability. However, the record also includes competent opinions that the right knee disability has aggravated the left knee disability, notably that of the 2013 VA examiner, and based on these opinions and the evidence of an antalgic gait, and giving the Veteran the benefit of the doubt, the Board finds service connection is warranted on a secondary basis due to aggravation. VA has a duty to notify and assist claimants for benefits. The decision grants service connection. As such, there is no further need to discuss compliance with the duties to notify and assist. ORDER Service connection for a left knee disability, diagnosed as osteoarthritis, is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs