Citation Nr: 1322959 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 00-22 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability. WITNESS AT HEARING ON APPEAL The Veteran REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 1992 to November 1994. The case was originally before the Board on appeal from a January 2000 rating decision of the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for a right knee disorder. The Atlanta, Georgia RO now has jurisdiction of the claims file. In December 2001, a hearing was held before a Decision Review Officer at the RO. A transcript of the hearing is associated with the Veteran's claims file. In October 2003 and April 2005, the Board remanded the case to the RO for additional development. In a May 2006 decision, the Board denied the Veteran service connection for a right knee disability. She appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and in December 2007, the Court vacated the May 2006 Board decision and remanded the matter for readjudication consistent with instructions outlined in a December 2007 Joint Motion for Remand by the parties (VA Secretary and the Veteran). In June 2008, the Board remanded the case to the RO for additional development. In March 2009, the Board promulgated another decision, denying the Veteran's claim of service connection for a right knee disability. She appealed that decision to the Court, and in December 2009, the Court vacated the March 2009 Board decision and remanded the matter for readjudication consistent with instructions outlined in a December 2009 Joint Motion for Remand by the parties. In April 2010 and April 2011, the Board remanded the case to the RO for additional development. In April 2013, the Board requested a medical expert opinion from the Veterans Health Administration (VHA) pursuant to 38 C.F.R. § 20.901(a). As the opinion was inadequate, an addendum opinion was requested in June 2013. Such opinion has been received. FINDING OF FACT There is competent medical evidence showing that the Veteran currently has a right knee disability, diagnosed as a patellofemoral pain disorder, that has been related medically to her military service. CONCLUSION OF LAW Service connection for a right knee disability, diagnosed as a patellofemoral pain disorder, is warranted. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. As the decision regarding the claim of service connection is favorable to the Veteran, no further action is required to comply with the VCAA. II. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. For certain chronic disorders, such as arthritis, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in service. This may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be warranted for disability proximately due to or the result of a service-connected disorder and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran, who is the appellant, served on active duty from May 1992 to November 1994. The service treatment records indicate that she complained of having had right knee pain for ten days in December 1993. Physical examination and X-rays at that time focused on the left knee and hip and did not include findings regarding the right knee. An April 1994 service record indicates she had a past medical history of degenerative joint disease of the knees, which was possibly arthritis. A follow up May 1994 examination report lists a diagnosis of a left knee disability. The Veteran complained of right knee pain in June 1994. Physical examination of the knee was negative for heat, discoloration, effusion, and McMurray's sign. It was noted that the right knee was positive for a grind and "medial tibial flare tenderness." Her quadriceps strength was rated as five out of five. An assessment of bilateral leg pain was given. X-rays of the right knee in August 1994 were negative, while a September 1994 bone scan report noted "[mild] generalized increased activity within both knees . . . which may be secondary to overuse/high activity level. No stress fracture or findings suggestive of degenerative disease are seen." After service, at the time of a January 1995 VA general medical examination, the Veteran reported a history of pain in her knees. Upon physical examination, it was noted that the knees had a full range of motion with some crepitus. The diagnosis was "[s]uspected degenerative joint disease of lumbar spine, hips and knees." The examiner recommended knee X-rays, but none were taken. VA medical records from August 1999 to November 2008 show complaints of right knee pain and provisional diagnoses of pain and osteoarthritis in both knees. In August 1999, a treating physician diagnosed degenerative joint disease, but subsequent X-ray reports of both knees noted "no bone or joint abnormality" and provided an impression that the knee was normal. In November 1999, the Veteran complained she had suffered from bilateral knee pain for over a year, but denied any injury or trauma to her knees. Knee X-rays were normal and physical examination found the knees were within normal limits, except for complaints of pain when performing straight leg raises. It was noted that the Veteran was wearing a right knee brace. A September 2001 VA treatment record notes that the Veteran had some inflammation of her right knee and moderate clicking in both knees. A VA whole body scan in September 2001 was suggestive of multiple site (including the knees) osteoarthritis. Based on these results, a nurse practitioner in December 2001 noted that multiple site osteoarthritis was "possibly connected to the strenuous, impact maneuvers from [the Veteran's] active status and compensation from [a] left knee injury." Social Security Administration (SSA) records include an October 2001 disability evaluation, which showed normal range of motion of the knees. The examiner indicated that the Veteran may have had ongoing radiculopathy of the right lower extremity, right posterior tibial tendonitis, and right trochanteric bursitis. No right knee disability was diagnosed. An October 2001 SSA disability determination noted a secondary diagnosis of "osteoarthritis knee." At a December 2001 hearing, the Veteran testified that her right knee constantly gave out and that because she favored her right knee over her left knee, her right knee had become worse than her left one. The Veteran was seen in April 2003 for left ankle and bilateral knee pain after having fallen down on pavement. VA X-rays at that time noted a minor abnormality and the interpreting physician provided an impression of "probable mild arthritis of the knee." The X-ray report does not specify whether these results were for the left knee or right knee. At the time of a February 2004 VA examination, the Veteran reported that when she placed more weight on her right knee than her left knee "it cause[d] pain, but to a lesser degree than on the left." She stated that walking, standing, and climbing increased her pain, which was characterized by swelling and stiffness. Physical examination found no joint effusion, weakness, redness, or abnormal or guarded motion; there were negative pivot shift tests, McMurray's sign, anterior and posterior drawer sign, and torsion sign both laterally and medially; there was no meniscal tenderness; and there was a slight patellofemoral crepitus associated with mild pain, but no medial or lateral instability. The Veteran could extend her right leg to zero degrees and flex the leg to 120 degrees. The examiner noted flexion was limited by the girth of the leg and not by pain. X-rays taken during the exam were normal and showed "no signs of any joint degeneration, joint narrowing or osteophytosis." After reviewing the record and examining the Veteran, the examiner provided a diagnosis of mild patellofemoral pain syndrome in the right knee and opined that it was "not likely as not that any present disability or disorder of the right knee [was] related to active duty." An April 2005 VA treatment record indicates the Veteran has osteoarthritis; however, the anatomical location of the arthritis was not shown. At the time of a June 2005 VA examination, the Veteran noted that she had marked swelling and throbbing pain in her right knee every morning, with flare-ups every evening, and that her knee would buckle and lock, causing her to fall. She told the examiner that while she was jogging in 1993 her right knee locked up; after her initial in-service treatment, she did not seek medical treatment for her right knee until 1999. On physical examination, the examiner explained the Veteran's pain: "She has exquisite pain with mild pressure over the proximal third of the right tibia, which she states shoots down to her leg. At times she screamed with pain with pressure applied over the medial meniscus, but when distracted, however, pressure in the same area caused no pain at all." X-rays taken of the right knee during the examination showed "normal bone, joint, and soft tissue". The examiner provided a diagnosis of subjective right knee pain and provided the following etiological opinion: "In my opinion, it is not likely that any current right knee disorder was either caused or aggravated by the Veteran's service-connected left knee disability. It is noted that nurse practitioner [K. S.] stated on December 13, 2001 a possible connection of a right knee problem to her left knee. I do not find at this time any right knee disorder, and do not find any relation of her right knee complaint to her left knee condition." This opinion is based on review of her file, her history and physical examination and 13 years practice as an active orthopedic surgeon. A September 2008 VA treatment record shows the Veteran had chronic pain; the assessment included degenerative joint disease - knees. On June 2010 VA examination, the examiner gave the Veteran a diagnosis of right knee strain with no objective findings. He found that, apart from the Veteran's complaints of pain, a physical examination of her knee was normal. X-rays were interpreted as essentially normal except for a finding of some diminution in cartilage space in the medial compartment. The examiner also reviewed X-ray findings from February 2004 and June 2005, and stated that they were essentially normal as well. In a June 2010 addendum opinion, the examiner stated that he had reviewed the claims file, which included an August 1994 bone scan showing general activity in both knees and ankles, an April 2004 X-ray that was negative, a June 2005 X-ray that was negative, and the report from a June 2005 VA examination when the examiner opined that the Veteran's right knee problems were not related to her service or her service-connected left knee problem. Based on these findings, the examiner requested an MRI scan. In a July 2010 addendum opinion, the examiner reported that the MRI scan of the right knee showed a ganglion cyst at the anteromedial aspect of the ACL tibial insertion. Therefore, the diagnosis for the Veteran's current right knee condition was right knee ganglion cyst at the anterior cruciate ligament insertion. He then opined that this disability was not related to trauma during service, and was not caused or aggravated by her service-connected left knee disability. The VA examiner, however, did not discuss and reconcile the various findings from the Veteran's September 2001 bone scan results (which revealed osteoarthritis of the "knee joints"), the February 2004 VA examination report (wherein mild patellofemoral pain syndrome of the right knee was diagnosed), and the June 2005 VA examination (wherein subjective pain of the right knee was diagnosed). The VA examiner also did not discuss the February 2004 VA examiner's diagnosis of mild patellofemoral pain syndrome; provide an explanation as to whether this diagnosis reflects an underlying disability entity; provide an explanation of the rationale for his opinion that the Veteran's right knee ganglion cyst was not related to (or aggravated by) her service or to her service-connected left knee disability; or comment on the observations made in the December 13, 2001 VA treatment record. Thus, the record was returned for another medical opinion to address the deficiencies in the examination reports. A subsequent VA medical opinion rendered in February 2012 did not clarify matters. In view of the unresolved issues and the inconsistent medical opinions containing incomplete rationale, the Board in April 2013 sought a VHA medical expert opinion. In the opinion request, the Board asked that the VHA examiner identify any and all chronic right knee disabilities the Veteran has had during the appeal period (i.e., since the filing of her service connection claim in September 1999). The VHA examiner was asked to reconcile the various right knee findings of record and opine (with explanation of rationale) whether the evidence shows the Veteran now has (or at any time during the appeal period had) a right knee disability. The Board asked that the explanation include comment as to whether the diagnosis of patellofemoral pain syndrome reflects that there is an underlying disability entity (or merely reflects complaints of pain). Moreover, for each past and/or current chronic right knee disability identified, the VHA examiner was asked to provide the proper diagnoses for such disabilities and provide responses to the following questions: (a) is it at least as likely as not (i.e., 50 percent or greater probability) that the right knee disability was/is related to an event or injury during service?; and (b) is it at least as likely as not (i.e., 50 percent or greater probability) that the right knee disability was/is either caused or aggravated by (increased in severity due to) the Veteran's service-connected left knee disability? In May 2013, a VHA examiner (an orthopedic surgeon) responded that the Veteran's right knee disability during the appeal period was patellofemoral pain, which reflected an underlying disability entity. He commented that findings on bone scan and X-rays were normal findings and did not indicate osteoarthritis. He opined that as there were no complaints of right knee pain during service, it was "at least as likely as not that the right knee disability wasn't/isn't related to an event or injury during service." Further, he opined that as the findings on bone scan and X-rays were actually normal, there would be no connection with activity while in service and that thus it was "at least as likely as not that the right knee disability wasn't/isn't either caused or aggravated by the Veteran's service-connected left knee disability." As the May 2013 opinion was incomplete, nonresponsive to the standard of proof required and sought, and apparently based on an inaccurate factual background, the Board in June 2013 sought an addendum opinion from the VHA examiner. The Board requested that the VHA examiner furnish an explanation of rationale for some conclusions (noting that he did not furnish comment on a ganglion cyst found in an MRI scan and calling attention to the fact that service treatment records do show complaints of right knee pain) and that the correct standard of review be used ("at least as likely as not the disability was/is [not wasn't/isn't]..."). In response in July 2013, the VHA examiner remarked that a ganglion cyst found on MRI was an incidental finding, that a specific cause for it had not been determined, and that a connection to either acute or chronic trauma had not been made. The VHA examiner amended his opinion, in light of complaints of right knee pain while in service, and stated that it was "at least as likely as not that the right knee disability is related to an event or injury during service." Regarding the question of whether a right knee disability was secondary to (caused by or aggravated by) the service-connected left knee disability, the examiner appeared to opine that the right knee disability was not secondary to the left knee disability. He cited to an unnamed article in the medical literature and stated (using an incorrect standard of proof, however) that it was "at least as likely as not that the right knee disability wasn't caused or aggravated by the service connected left knee disability." In view of the foregoing, there is satisfactory proof that the Veteran's right knee disability, diagnosed as a patellofemoral pain disorder, is related to her period of military service. As noted, there are medical opinions of record, with inconsistent findings or inadequate rationale, that are unfavorable to the claim. To reconcile the disparities, the Board sought a medical opinion through the VHA which ultimately found that the evidence was at least in equipoise that the right knee pain complaints during service signaled the onset of her current right knee patellofemoral pain disorder. Notwithstanding that it applies an incorrect standard of review for consideration of a secondary service connection theory of entitlement, the opinion is adequate and supportive of the claim on a direct service connection basis. Acknowledging the conflicting medical evidence in the file that weighs both for and against the Veteran's claim for service connection, the Board nevertheless finds that the comprehensive review and consideration of the VHA examiner, in a report received in July 2013, is particularly probative and entitled to great weight. Accordingly, there is competent evidence to support the claim that the Veteran's right knee disability is etiologically related to her period of military service on a direct service connection basis. As the claimed condition is due to disease or injury that was incurred in service, service connection for a right knee disability, diagnosed as patellofemoral pain disorder, is warranted. ORDER Service connection for a right knee disability, diagnosed as a patellofemoral pain disorder, is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs