Citation Nr: 1415162 Decision Date: 04/07/14 Archive Date: 04/15/14 DOCKET NO. 10-36 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a left knee disability, to include as secondary to a service connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kimberly A. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to January 1971, to include service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois which denied service connection for a left knee disability. The case was remanded by the Board in January 2013 for additional development. That was accomplished, and in an April 2013 supplemental statement of the case, the RO continued the denial of service connection for a left knee disability. FINDING OF FACT The Veteran's current left knee disability is aggravated by a service-connected right knee disability. CONCLUSION OF LAW A left knee disability is aggravated by a service-connected right knee disability. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In some cases, service incurrence and relationship to service may be established through a demonstration of continuity of symptomatology for certain specific chronic disabilities. 38 C.F.R. § 3.303(b) (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for chronic disabilities listed in 38 C.F.R. § 3.309(a) (2013). Arthritis is considered a chronic disease. 38 C.F.R. §§ 3.303(b), 3.309(a) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disability. 38 C.F.R. § 3.303(a) (2013). Moreover, service connection will also be presumed for chronic disabilities, such as arthritis, if manifest to a compensable degree within one year after separation from service. 38 C.F.R. §§ 3.307, 3.309 (2013). In addition, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran has not claimed that his currently diagnosed left knee disability is a direct result of his military service, and there is nothing in the record which suggests that the left knee disability was incurred in or aggravated during service. The service medical records show no complaint of or treatment for any left knee disability during service and the record does not have any competent evidence showing that it is at least as likely as not that any current left knee disability is related to service. Instead, the Veteran contends that a left knee disability is secondary to a service-connected right knee disability. A February 1975 radiographic report shows the left knee was negative for any abnormalities. In June 1975, the Veteran experienced an on-the-job injury and sustained a dislocated left patella and torn left medial meniscus. A June 23, 1975, treatment note shows that two days after the injury the Veteran reported that he tripped at work and twisted his left knee. A July 1975 treatment report shows the Veteran reported his two most recent dislocations were due to the right side giving way. In July 1975, the Veteran underwent surgery on his left knee to repair a torn medial meniscus and left patella. An August 1975 treatment note reports that the Veteran gave a history that his left knee gave way due to weight bearing on the left knee as a result of a right knee injury. A February 2008 VA joints examination report shows that the Veteran reported he had been favoring his left knee due to his right knee injury. He complained of constant pain in his left knee with an 8/10 pain level. The Veteran reported flare-ups twice weekly, lasting several hours, with a 9/10 pain level. He said the flare-ups were triggered by activity and alleviated only by rest. He used a knee brace and utilized over-the-counter pain medication. On physical examination there was joint-line tenderness. He had full extension and his flexion was to 130 degrees. Imaging showed diffuse and severe degenerative joint disease. There was no additional functional impairment due to pain, pain on repetitive use, fatigue, weakness, lack of endurance, or incoordination. The diagnosis was bilateral knee degenerative joint disease. The examiner noted the Veteran's right knee had become more problematic since the prior visit. In regard to the left knee, the examiner opined the degenerative joint disease was not likely due to his service-connected right knee, but due to his meniscal and anterior cruciate ligament (ACL) surgery in 1974. A June 2010 VA joints examination shows that the Veteran reported that he believed his left knee problems were a result of overcompensating for his right knee disability. He stated his left knee pain was constant and a 7 to 8 out of 10 on the pain scale. He denied having flare-ups. On physical examination, there was nominal tenderness to palpation of the joint line. Sensation was normal to light, no atrophy was noted. Range of motion of the left knee revealed full extension at 0 degrees and 100 degrees of flexion with no pain throughout or with repetitive testing. Imaging of the left knee showed severe tricompartmental degenerative joint disease with medial subluxation. There was no additional functional impairment due to pain, pain on repetitive use, fatigue, weakness, lack of endurance, or incoordination. The diagnosis was left knee degenerative joint disease. The examiner opined that it was less likely than not that the Veteran's left knee disability was due to his service-connected right knee disability and more likely than not related to the post-service 1975 surgery. The rationale provided was that the Veteran had a significant surgery in 1975 which was an ACL repair and a meniscal repair. There was no specific incident documented in the record regarding his right knee causing the left knee injury at any time. As the June 2010 VA examiner did not address whether the Veteran's service-connected right knee disability aggravated the Veteran's left knee disability, in January 2013 the Board remanded for a new VA examination to address aggravation. A September 2011 private examination shows that the Veteran reported a history of chronic pain in both knee joints. He stated his left leg was not problematic until 1975 when his right leg gave out. On physical examination there was crepitus with full range of motion, and medial joint line tenderness. X-rays showed severe arthritic joint changes in the left knee. The examiner assessed chronic knee disease secondary to trauma, initially sustained in service on the right knee, with the left knee caused by the instability of the right knee as a result of subsequent surgeries. The examiner opined that both knees were a result of service-related injuries. No rationale was provided, nor was the claims file reviewed. A March 2013 VA knee examination shows that the Veteran reported constant pain in the left knee at 8 of 10 on the pain scale. He had patellar instability when not wearing his brace. The pain was worse with walking more than half a mile or standing for more than an hour. Climbing stairs or bending was difficult due to pain and stiffness. The Veteran stated he used a pillow between his knees at night to prevent popping in his knee. He reported flare-ups two to three times a month with extended walking or standing. Pain during a flare-up was up to 10 of 10. The examiner noted that the Veteran had an antalgic gait. On physical examination of the left knee, there was tenderness or pain to palpation. Medial-lateral instability was 1+ in the left knee. There was also evidence of moderate patellar subluxation. Range of motion of the left knee revealed full extension at 0 degrees and flexion to 105 degrees with evidence of painful motion at 90 degrees. On repetitive testing full extension was 0 degrees, and flexion was to 105 degrees. Functional loss after repetitive use on the left side was noted as less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. It was noted that the Veteran had a left knee meniscectomy in 1975. Residuals of that surgery include left knee degenerative joint disease, swelling, and painful popping. The Veteran regularly used a cane and brace for his knee pain. Imaging of the left knee showed evidence of degenerative arthritis. The diagnosis was degenerative joint disease. The examiner opined that the Veteran's current left knee disability was more likely than not due to his post-service 1975 injury and subsequent treatment. The rationale provided was that the Veteran did not have an in-service injury to the left knee. A post-service injury led to an open meniscectomy and patellar stabilization procedure that has continued to worsen the left knee pain from advanced arthritis. The examiner further stated that open meniscectomies are associated with increased rates of arthritis like the Veteran had. The Veteran has maintained that his left knee became injured as a result of overcompensating for his right knee that occasionally gave way. However, the first complaints of a left knee injury began in June 1975, more than four years after the Veteran's discharge from service. A June 23, 1975, treatment note shows that two days after the injury the Veteran stated he injured his knee while working on a farm. He said he tripped and his knee may have twisted at the same time. He also stated that he had no previous trouble with his left knee. Later reports show the Veteran claimed his left knee injury was the result of his right knee giving way. The evidence of record shows that a private physician offered an opinion as to the Veteran's knee disability and service connection. According to the August 2011 treatment note, the Veteran provided a history of his knee complaints, X-rays were taken and reviewed, and a physical examination was conducted. The physician opined that both knees were a result of service related injuries. However, the Board notes that there was no rationale provided to support that opinion. Additionally, there is no evidence that the Veteran's claims file was available for review. In contrast, the Veteran had three VA examinations for his left knee disability. The Board finds the VA examiners' opinions more probative, who after thorough review of the claims file, the Veteran's history, physical examination, and rationales based on a discussion of the pertinent evidence of record, opined that it was less likely than not that the Veteran's left knee disability was caused by the Veteran's service-connected right knee disability. In addition to the medical evidence, the Board has considered the Veteran's statements as to the alleged etiology of the Veteran's left knee disability. The Board notes that while the Veteran is competent to state symptoms related to his knee disabilities, he is not competent to provide a medical nexus opinion. That is a matter within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134 (1994). As the Veteran is not shown to be other than a layperson without the appropriate medical training and expertise, he is not competent to render a probative opinion on a medical matter requiring specialized knowledge regarding the etiology of a knee disability. Grottveit v. Brown, 5 Vet. App. 91 (1993). The evidence does not show, nor does the Veteran contend, that he had a chronic left knee disability in service or continuity of symptoms following service. The separation examination found no abnormalities of the left knee and the Veteran did not report symptoms at that time. In addition, a left knee disability was not shown within one year of separation from service. The preponderance of the evidence is against a finding that the Veteran's service-connected right knee disability caused the Veteran's current left knee disability. Nevertheless, the Board finds that service connection is warranted for the left knee disability on the basis that it has been aggravated by the service-connected right knee disability. A September 2011 private treatment note stated that the Veteran's chronic knee disease was secondary to trauma initially sustained in the military to the right knee. However, that opinion is given low probative weight as no rationale was provided to support the opinion concerning etiology, nor speak to aggravation. A March 2013 VA examiner stated that the Veteran's service-connected right knee disability temporarily aggravated the pain for his left knee degenerative joint disability due to intermittent gait difficulties. The examiner further rationalized that because the gait difficulties were intermittent, there was no permanent aggravation. The Board notes that while the Veteran's gait difficulty is intermittent, it is expected to continue, thereby continuing to aggravate his left knee pain. While the gait disturbance is intermittent, that gait disturbance is a permanent feature of the service-connected right knee disability and is expected to continue to be present. There is no evidence of record to suggest that the Veteran's gait disturbance will resolve or improve, considering the severity of his knee disabilities. The Board finds that the Veteran's gait disturbance due to the right knee disability occurs with such consistency, and aggravates the left knee disability with that consistency, that it can be considered a permanent aggravation. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's left knee disability is permanently aggravated by his service-connected right knee disability. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for a left knee disability, which has been aggravated by a service-connected right knee disability, is warranted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2013); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). ORDER Service connection for a left knee disability, which has been aggravated by a service-connected right knee disability, is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs