Citation Nr: 1708321	
Decision Date: 03/17/17    Archive Date: 04/03/17

DOCKET NO.  11-26 687	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

Entitlement to service connection for left knee disorder, to include as secondary to service-connected disability. 


ATTORNEY FOR THE BOARD

J. R. Hines, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1990 to January 1993, and in the Army National Guard with periods of active duty for special work (ADSW) from June 2005 to March 2006 and June 2006 to June 2007.

This matter comes before the Board of Veterans'Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, GA.  

In July 2014 and in February 2016, the Board remanded this matter for further evidentiary development.  

The Veteran has filed a motion to advance his case on the docket (AOD) due financial hardship.  Appeals must be considered in docket number order, but may be advanced if sufficient cause is shown.  See 38 U.S.C.A. § 7107 (a)(2) (West 2014); 38 C.F.R. §20.900 (c) (2016).  Sufficient cause includes advanced age (defined as 75 years or more), serious illness, severe financial hardship, or administrative error resulting in a significant delay.  Any motion for advancement should be supported by pertinent documentation.  The Veteran does not meet the requisite 75 year age requirement.  The evidence presented does not demonstrate severe financial hardship such as a pending bankruptcy, home foreclosure, or homelessness, or evidence of administrative error resulting in a significant delay or misinterpretation of a question of law.  Absence of sufficient cause to advance this case, the Veteran's motion is denied.  In accordance with this ruling, the appeal will remain in its current docket number order.


FINDING OF FACT

Resolving all reasonable doubt in favor of the Veteran, a left knee disorder was caused by service-connected right knee degenerative joint disease.  


CONCLUSION OF LAW

The criteria for service connection for a left knee disorder have been met.  38 U.S.C.A. §§ 101(21), 101(24), 106, 1110, 1131, 5107 (West 2015); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.3.310 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §1110; 38 C.F.R. § 3.303.

Active service includes (1) active duty, (2) any period of active duty for training (ACDUTRA)during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA)during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training.  38 C.F.R. § 3.6(a).  Thus, service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA.  38 U.S.C.A. §§ 101 (24), 106, 1110.  

Service connection may be granted on the basis of a post-service initial diagnosis of a disease, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303 (d).  

Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder.  See 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 either (a) was caused by or (b) is aggravated by a service-connected disability.  See 38 C.F.R. § 3.310 (a) (2016); Allen v. Brown, 7 Vet. App. 439 (1995).  

The Veteran has current diagnoses of chondromalacia, left knee strain, and degenerative arthritis of the left knee.  (See the VA examination reports dated in December 2011 and October 2014, and MRI dated in November 2014).  

The Veteran contends that his left knee disorders are secondary to his service-connected right knee residuals of meniscal tear and degenerative joint disease, lumbar spine degenerative joint disease, and bilateral ankle disabilities (residuals of torn anterior talofibular ligament with arthritis, right ankle and status post left ankle Achilles tendon rupture with residual arthralgia).  

After reviewing all of the evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds service connection is warranted.

In support of his claim, the Veteran provided a medical opinion dated in March 2009 from his private treating physician, Dr. H.  Dr. H. expressed the opinion that the Veteran's left knee pain was probably secondary to the chronic low back pain from his degenerative joint disease, and the right knee and ankle injuries sustained in service.  

Additional evidence favorable to the claim consists of medical opinions and findings contained in VA examination reports dated in August 2011 and December 2011.  The August 2011 VA examination report contains objective findings in the 'Remarks' section of the report.  There, the examiner indicated that the right knee findings on examination, which showed loss of motion, at least as likely as not affected the Veteran's left knee due to favoring the right knee.  At the VA examination in December 2011, the examiner's diagnosis was "[L]eft knee chondromalacia.  The subjective factors are the history of right knee over compensation has led to left knee pain."  These opinions and findings are favorable evidence in support of the Veteran's claim and his contentions.

Subsequent VA examiners provided medical opinions that do not support a causal nexus.  A VA examiner in August 2011 opined that the Veteran's service-connected back disability had not caused his current diagnosis of left knee strain.  A VA examiner in October 2014 stated there is no gait disturbance of sufficient severity, nor leg length discrepancy, to suggest either the lumbar spine or the right knee as an etiology for the Veteran's left knee strain.  An April 2016 VA examiner opined that the Veteran's left knee disorder was not related to his service-connected bilateral ankle disabilities because on previous examination (in October 2014) there was no evidence of any gait disturbance.  This examiner further explained that without alteration of the Veteran's gait or biomechanics while walking, he was unable to determine any increasing stress to the left knee was proximately related to the service-connected ankles. 

The Board must weigh the favorable nexus opinions against the negative opinions offered by the 2014 and 2016 VA examiners.  The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is fully articulated, that is, unequivocally stated, whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008).  

Upon careful review, the Board finds that the October 2014 and April 2016 opinions are of lessened probative value because they are not supported by the historical clinical findings as shown in the record.  It appears that the October 2014 examiner only considered the clinical evidence, or lack thereof, of a gait disturbance as shown at the 2014 examination.  The Board, however, observes that an August 2011 VA examination report shows the Veteran had an abnormal gait due to knee pain and an unsteady walk.  The Veteran's walk was also noted to be unsteady at the December 2011 VA examination, and he reported use of a cane and brace due to his back pain.  The April 2016 examiner relied on the inaccurate factual premise as stated by the 2014 examiner, in rendering his opinion.  The inaccurate factual premise relied on by the 2014 and 2016 VA opinions greatly lessens their probative value.  See Reonal v. Brown, 5 Vet. App. 458, 460-461 (1993) (An opinion based upon an inaccurate factual premise has no probative value.). 

Dr. H.'s March 2009 medical opinion is speculative in nature, and therefore is not, by itself, of sufficient probative weight to warrant service connection.  Speculative language such as "probably" does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship and does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Warren v. Brown, 6 Vet. App. 4, 6 (1993).  Nonetheless, it is favorable evidence of secondary causation, and the Board finds that it is bolstered by the cumulative clinical findings shown in the service and post-service treatment records and the 2011 VA medical opinions.  

Service treatment records reveal that the Veteran tore his left Achilles tendon in August 1999 and required surgical repair.  Medical records between 2001 and 2002 show complaints of left knee pain and chronic low back pain that radiated to both legs.  A September 2001 treatment record shows the Veteran reported all of his left knee pain began in 1999 after surgery for his Achilles tendon and subsequent use of crutches.  In December 2001, the Veteran reported he had experienced left knee pain off and on for years.  Additional service records reveal that the Veteran hurt his right knee playing football in December 2006 and injured his right ankle in February 2007.  Treatment records dated from February 2007 show ongoing complaints of right knee and ankle pain, and reflect MRI findings of right knee internal derangement and right ankle sprain.  A post-service private treatment record from Dr. M. of TGH dated in March 2010 shows the Veteran had difficulty standing and walking and that he walked with a limp due to his low back pain.

The 2011 VA medical opinions, while not models of clarity, do reflect the examiners' clinical impression that the Veteran's left knee problems were caused by his service-connected right knee disability.  Those impressions were based upon their review of the claims file and the Veteran's medical history and clinical presentation.  

The Board further finds the Veteran's general testimony about the onset and progressive nature of his left knee pain following his in-service injuries to be credible.  His competent lay statements as to the onset of his left knee symptoms following his left Achilles, right knee, and right ankle injuries- and the progressive nature of his pain throughout the years due to those now service-connected disabilities- further supports claim on the basis of secondary service connection.  His credible lay testimony, coupled with Dr. H.'s March 2009 opinion and the August 2011 and December 2011 VA medical opinions as discussed above, support a finding of a causal connection between his current left knee disability and his service-connected right knee disability specifically.

A claim will be denied only if the preponderance of the evidence is against the claim.  If the evidence for and against a claim is in equipoise, the claim will be granted.  See 38 U.S.C.A. § 5107.  The evidence pertaining to a causal nexus between the Veteran's left knee disorder and his service-connected right knee disability is in relative equipoise.  Resolving reasonable doubt in the Veteran's favor, service connection for a left knee disability is warranted.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 3.310.


	ORDER

Resolving all reasonable doubt in favor of the Veteran, service connection for a left knee disability is granted subject to the laws governing the grant of monetary benefits.



____________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs