Citation Nr: 1324667 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 07-26 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE 1. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability. 2. Entitlement to service connection for a back disability, to include as secondary to a service-connected right knee disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1982 to November 1986. Additionally, he had a dishonorable period of active service from September 1987 to September 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in October 2010 and August 2012 for further development. They have now been returned to the Board for appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. FINDING OF FACT The relevant competent evidence is in relative equipoise as to whether the Veteran's left knee and low back disabilities are related to his active service, to include his service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. The criteria for service connection for a back disability have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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) (2012). In a claim for secondary service connection, the regulations provide that service connection shall be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. Buckley v. West, 12 Vet. App. 76, 84 (1998). Secondary service connection may also be warranted for a non-service-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Also, with regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Under the benefit-of-the-doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the Veteran's favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1994). In this case, the Veteran contends that his left knee and low back disabilities are related to his first period of active service, to include his service connected right knee disability. Specifically, the Veteran has asserted that due to stress from his right knee disability, his left knee disability has gotten progressively worse which has also caused him to develop problems in his lumbar spine. He has stated that he was told by his chiropractor that his back problems were a result of his bilateral knee problems. A review of the Veteran's service treatment records (STRs) shows that in September 1984 the Veteran suffered a right knee dislocation. His right leg was casted and he was later treated with physical therapy. A January 1985 STR shows the Veteran sought treatment for back pain that had been ongoing for five days. He was diagnosed with a muscle strain and treated with hot packs and Motrin. A subsequent January 1985 STR shows that he was seen for complaints of left knee pain, which he reported began after he twisted the left knee when he was going down a ladder. There was no swelling present, but the knee was tender to palpation. Knee strain was diagnosed and he was given light duty for 48 hours. On November 1986 separation examination, the Veteran reported a "trick" or locked knee, but only described the injury to his right knee. On clinical evaluation, the Veteran's lower extremities and spine were found to be normal. The Veteran was afforded a VA examination in March 2006. At that time it was noted that on September 2005 X-ray mild narrowing of the patellofemoral space was shown in the left knee. He reported that his left knee dislocated in the year 2000 and that he wore a brace on his left knee. There was no examination of the left knee conducted and no diagnosis of any left knee disability was made. The Veteran was afforded another VA examination in August 2006. He reported that he had injured his right knee during active service in 1984 and had been having pain in his left knee since 1998 and that the pain had progressively worsened over the years. On examination, the Veteran was noted to have a normal gait and normal weightbearing. After examination, the examiner diagnosed degenerative joint disease (DJD) of the left knee. The examiner opined that it was less likely than not that the Veteran's left knee disability was a result of the service-service connected right knee disability. The examiner explained that there was no evidence on examination of abnormal weight bearing which would put increased stress on the opposite knee. Additionally, she noted that the first documented medical evidence of left knee problems in the claims file was not until 2000 and because the Veteran's in-service right knee injury was in 1984, the passage of time between the two events made it unlikely that the right knee disability caused the left knee disability. The Veteran's low back was also examined at the August 2006 examination. At that time he reported that he began having pain in his low back in approximately 1999, but that he did not remember any specific injury or event that caused the pain. He reported that the pain had gotten progressively worse over the years. After examination, the examiner diagnosed DJD of the lumbar spine. The examiner opined that the Veteran's low back disability was less likely than not a result of his service-connected right knee disability. She explained that, once again, there was no evidence of an abnormal gait and that the first evidence of low back complaints was not until 18 years following the injury to the right knee in service, and that as such, it was unlikely that the right knee injury caused the low back disability. The Board notes that the August 2006 VA examiner only provided a medical opinion as to whether the Veteran's service-connected right knee disability caused his left knee and low back disabilities. The August 2006 VA examiner did not provide a medical opinion as to whether the Veteran's left knee disability or low back disability was otherwise related to or aggravated by his service-connected right knee disability. As noted above, the Court in Allen, held that secondary service connection may be warranted for a non-service-connected disability in circumstances where such a disability is aggravated by a service-connected disability. See Allen, 7 Vet. App. 439. Additionally, as noted by the Board in the October 2010 remand, the August 2006 examiner failed to provide an opinion as to whether the Veteran's left knee and low back disabilities were directly related to his active service. Therefore, the Board has determined that the August 2006 VA examination is inadequate for rating purposes. The Veteran was afforded a new VA examination in November 2010. At that time he reported that he had daily pain in his left knee, but that it was not as severe as the pain in his right knee. He also reported that he received injections every three months in his left knee for the pain. It was noted that a May 2010 X-ray of the left knee showed a normal right knee. On examination, the Veteran had a normal posture and gait. His left knee appeared normal, but there was mild crepitation with range of motion testing. The examiner diagnosed chronic strain of the left knee. The examiner opined that it was less likely than not that the Veteran's left knee disability was causally or etiologically related to a service-connected disability or to an event or injury during military service. She explained that the Veteran's service medical records showed no evidence of an injury or treatment for a left knee condition while he was on active service and that because the Veteran had reported that his left knee disability began sometime in 1997 or 1998 when it popped out of place while he was at work, it was more likely that the left knee disability began in relation to a postservice work injury. On November 2010 VA examination of the Veteran's low back disability, he reported that his pain was aggravated by bending, crouching, and kneeling, and that he was no longer able to play basketball as a result of both his low back pain and his bilateral knee pain. It was noted that August 2006 X-ray showed mild facet joint arthropathy at L5-S1. On examination, the thoracolumbar spine was normal in appearance. The examiner diagnosed DJD of the lumbar spine. The examiner opined that the Veteran's low back disability was less likely than not causally or etiologically related to a service-connected disability or otherwise related to an event or injury during active service. The examiner explained there was no evidence in the Veteran's service medical records of a low back injury or that he was ever treated for low back complaints. Further, as he reported that his symptoms began approximately 10 years following separation from active service during his employment installing telephone equipment, it was more likely that his low back disability was related to his postservice occupational duties. The Board notes that upon independent review of the claims file, as noted above, there is evidence that the Veteran sought treatment for both his left knee and his low back while on active service. As such, while the November 2010 VA examiner indicated she performed a complete review of the claims file, the Board finds that November 2010 opinion is inadequate as it did not consider all the evidence of record. Further, the Board notes that the November 2010 VA examiner did not provide an explanation of rationale for her opinion that the Veteran's left knee and low back disabilities were not causally or etiologically related to a service-connected disability. Therefore, the Board finds that the November 2010 VA examination is inadequate for rating purposes. The Veteran was afforded a new VA examination in August 2012. After review of the claims file and examination of the Veteran's left knee, the examiner diagnosed DJD of the left knee. The examiner opined that it was less likely than not that the Veteran's left knee disability was incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran sought treatment for a twisted left knee while on active service, but there was no evidence of a chronic left knee condition while on active service. He further noted that the Veteran's separation examination did not show evidence of a left knee condition, nor was there evidence of a left knee disability within two years of separation from active service. Therefore, it was less likely than not that the Veteran's left knee disability was incurred in active service. The examiner went on to explain that while the Veteran was treated for a dislocated right knee while on active service, at the time of his separation, his right knee was noted to be stable. Additionally, the examiner noted that there was no evidence on the March 2006 or November 2010 VA examinations that the Veteran's right knee was unstable or that he had an unsteady gait, which can cause additional stress on the left knee. Therefore, it was less likely than not that the Veteran's left knee disability was related to his service-connected right knee disability. On August 2012 examination of the Veteran's low back, the examiner diagnosed DJD of the lumbar spine. The examiner opined that it was less likely than not that the Veteran's low back disability was incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran's STRs showed that he received treatment for an episode of low back pain in January 1985, which was diagnosed as a muscle strain and treated with heat packs and Motrin, but that there was no other evidence of in-service treatment for back pain. The examiner further noted that the Veteran was not diagnosed with a chronic low back disability during active service or within two years of separation from service, and it was therefore less likely than not that the current low back disability was incurred in active service. Further, the examiner noted that there was no evidence of an unsteady gait or instability secondary to the Veteran's service-connected right knee disability, which could cause additional strain on the back leading to DJD of the lumbar spine. Therefore, it was less likely than not that the Veteran's DJD of the low back was related to his service-connected right knee disability. The Board notes that prior to the August 2012 VA examination, the Veteran was granted service connection for instability of the right knee in the July 2012 Board decision. Further, in a July 2012 rating decision, the RO granted the Veteran a 10 percent disability rating for right knee instability, effective October 12, 2005. In the August 2012 examiner's explanation of rationale, he relied on the premise that there was no instability present on the March 2006 or November 2010 VA examinations to support his opinions that the Veteran's left knee and low back disabilities were not related to his service-connected right knee disability. Notably, both the July 2012 Board decision and the July 2012 rating decision were of record prior to the August 2012 VA examination. As the Board had found that the evidence of record supported a grant of service connection for instability of the right knee and the RO assigned a 10 percent disability rating effective October 12, 2005, the Board finds that there was evidence of right knee instability prior to this examination and, based on the effective date assigned by the RO, prior to the March 2006 and November 2010 VA examinations. As such, the Board finds that the August 2012 VA examiner did not consider all the evidence of record prior to rendering his opinion and the opinion is therefore inadequate. Also of record is a January 2013 private medial examination and opinion performed by Dr. J.E. of the Ellis Clinic in Oklahoma City, Oklahoma. The Board notes that the examiner stated that he performed a review of the Veteran's STRs, postservice medical records, and pertinent VA decisions. Attached to his examination report is a list of records the examiner reviewed in conjunction with the examination. The Board notes that while it does not appear that the examiner reviewed the Veteran's VA medical records or the VA examination reports of record, he did perform a review of the numerous postservice private treatment medical records. Dr. J.E. performed an examination of the Veteran's right and left knees and his low back. Dr. J.E. noted an August 2000 magnetic resonance imaging scan (MRI) of the left knee which showed some abnormalities. He also noted that an MRI was repeated in 2012, showing hypoplastic patellofemoral articulation and posterior patellar chondromalacia. On examination of the back, Dr. J.E. noted that the Veteran had low back pain that radiated down into the back of his right thigh. Following the examination and review of the available records, Dr. J.E. opined that the Veteran's left knee and low back disabilities were at least as likely as not, due to and a consequence of his active service. Dr. J.E. explained that the injury to the Veteran's right knee on active service caused changes in the anatomical structure of the right knee, which in turn resulted in abnormal pressure on the left knee and abnormal stress on the low back and the sacroiliac ligaments. The increased pressure on the left knee caused increased straining, traumatic arthritis, and chondromalacia in the left knee, which caused joint space changes resulting in ligament laxity. Dr. J.E. noted that the abnormal stress on the low back had caused tight muscles and ligaments which were impinging the nerves down his right leg consistent with lumbosacral plexus impingement. There are also numerous VA Medical Center and private treatment records associated with the claims file. These records show that the Veteran receives relatively regular medical and chiropractic treatment for his left knee and low back disabilities. Aside from an October 2005 letter from a private physician, Dr. J.S., these records contain no indication as to whether the Veteran's left knee and/or low back disabilities are/are not related to his active service or his service-connected right knee disability. The October 2005 letter from Dr. J.S. states that the Veteran was told by his private orthopedic surgeon that favoring his right knee for 21 years had caused him to damage his left knee and that he was told by his chiropractor that the problems in his right and left knees had caused problems in his lumbar spine. The Board finds that the record contains evidence both for and against the claim. Notably, the Veteran's STRs showing he sought treatment for left knee pain and back pain while on active service, the Veteran's lay statements made in support of his claim and to his treatment providers, and the January 2013 private medial examination and opinion of record, tend to support his claim that his left knee and low back disabilities are related to his active service, to include his service-connected right knee disability. The evidence against the Veteran's claim consists of the August 2006, November 2010, and August 2012 VA opinions. However, as noted above, the Board has found these opinions to be inadequate for their failures to provide opinions as to aggravation and direct service connection, to provide sufficient explanations of rationale, and for failing to consider all the evidence of record, respectively. Therefore, as the VA opinions of record have been found to be inadequate, they cannot be used to support a denial of service connection. Thus, the Board finds that the evidence of record regarding the issues of whether the Veteran's left knee and low back disabilities are related to his active service, to include his service connected right knee disability, is in relative equipoise, i.e., about evenly balanced for and against the claim. In these situations, the Veteran is given the benefit of the doubt. Consequently, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's left knee and low back disabilities were caused by or are related to his active service, to include his service connected right knee disability. 38 C.F.R. § 3.102. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (under the "benefit- of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue). As such, the Board will grant this appeal. ORDER Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability, is granted. Entitlement to service connection for a back disability, to include as secondary to a service-connected right knee disability, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs