Citation Nr: 1751753 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 11-17 925 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a left knee disorder, to include as secondary to a service-connected right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from January 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Milwaukee, Wisconsin Regional Office (RO). In June 1973, the Veteran testified before the Rating Board sitting at the RO. A hearing transcript is in the record. In June 2012, the Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) sitting at the RO. A hearing transcript is in the record. In May 2014 and February 2017, the Board remanded the appeal to the RO for additional action. FINDINGS OF FACT 1. The Veteran is not presumed sound on service entrance as to any preexisting left knee disorder. 2. The Veteran's preexisting left knee disorder was not permanently aggravated beyond its natural progression by his active service. 3. The Veteran's preexisting left knee disorder was not aggravated by his service-connected right knee disorder. 4. The Veteran's current left knee disorder was not caused by his service-connected right knee disorder. CONCLUSION OF LAW The criteria to establish service connection for a left knee disorder have not been met. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2014). 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.326(a) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claim. VA issued a November 2008 letter to the Veteran which informed him of the evidence generally needed to support his claim; what actions he needed to undertake; and how VA would assist him in developing his claim. The November 2008 letter was issued to the Veteran prior to the May 2009 rating decision. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claim. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014). For these reasons, the Board finds that the VA's duties to notify and to assist have been met. II. Analysis The Veteran argues that his preexisting left knee disorder was either permanently aggravated by active service or aggravated by his service-connected right knee disorder. The Veteran also argues that his current left knee disorder was caused by his service-connected right knee disorder. The Board will deny the claim on all theories of entitlement. A Veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in the examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The provisions of 38 C.F.R. § 3.304(b) clarify that the term "noted" denotes "[o]nly such conditions as are recorded in the examination reports" and that "[h]istory of pre-service existence of conditions recorded at the time of examinations does not constitute a notation of such conditions." Crowe v. Brown, 7 Vet. App. 238, 245 (1994); see also Cotant v. Principi, 17 Vet. App. 116 (2003). In his November 1965 pre-service entrance medical history questionnaire, the Veteran reported having experienced swollen or painful joints, cramps in his legs, and a locked knee. When asked if he had been advised to have any operations, the Veteran indicated "advised to have knee operations." The "physician's summary" section noted the Veteran's left knee was to be operated on, and annotated "cartilage." The Veteran's November 1965 pre-service entrance medical examination indicates both knees had no crepitus/effusion and tenderness. It was also noted that his ligaments were all tight. The "summary of defects and diagnosis" section noted knee complaints and no objective findings. The Veteran was assigned a profile designation of "1" for his lower extremities under the PULHES system. See generally Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); ((observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)); also e.g., Army Regulation 40-501, December 2007 and update August 2010. The November 1965 medical examination report contains a "January 26, 1966" handwritten notation. The date apparently refers to three letters from the Veteran's treating physicians and which were received on January 26, 1966. Jerry R. Salan, M.D. noted the Veteran's history of multiple athletic injuries to both knees in the previous four years and that the Veteran had traumatic arthritis in both knees. Lloyd P. Maasch, M.D. stated that the Veteran had injuries to his knees "on several occasions," from athletics and specifically noted an October 1964 left knee tear of the posterior horn of the lateral semilunar cartilage. Dr. Maasch also observed that the Veteran experienced knee pain during running and rapid walking, and periodic discomfort with weather changes. In his letter, James E. Gmeiner, M.D. stated that in December 1963, the Veteran had chondromalacia in his left knee. Dr. Gmeiner reported that the Veteran was examined in November 1964, and possibly had a left knee tear of the posterior horn of the lateral semilunar cartilage and that radiographic examination were negative for bone or joint pathology. In a March 1966 service clinical record, the Veteran complained of a left knee cyst. However, the service medical examiner reported that the Veteran had recurrent bilateral knee pain with chondromalacia greater in the right than left. A March 1966 medical care record noted the Veteran had an "old injury" and that he experienced bilateral knee pain. The March 1966 medical record from the orthopedic clinic noted that the Veteran had no effusion, full range of motion, stable ligaments, no chondromalacia, good quad strength, and that x-rays showed no abnormalities. An August 1966 medical care record noted that the Veteran had conflicting records as to the existence of chondromalacia in one or both knees. It was also noted that the Veteran had a history of multiple athletic injuries, with crepitus and flexion of his knees. The record further noted that the Veteran reported experiencing pain during walking, particularly during weather change. In August 1966, the Veteran's physical profile record noted a disease in both knees and assigned a profile designation of "3T" - previously a "1" from November 1965 - for his lower extremities under the PULHES system. The Veteran was assigned to duty with temporary limitations, to include no formation marching, walking over one-half mile, running, "double timing," performing physical training ("PT"), jumping, squats and climbing. The Veteran clearly reported traumatic arthritis, chondromalacia and a tear of the posterior horn of the lateral semilunar cartilage in the left knee during his service entrance examination. Three treating physicians detailed the Veteran's relevant pre-service medical history and clinical evaluations. Although the Veteran was accepted for service, his PULHES profile indicates that he was excused from fully performing training because of these noted defects. The Veteran is therefore not presumed sound upon service entry. The remaining question is whether the evidence shows that the Veteran's preexisting left knee disorder was permanently aggravated beyond its natural progression during active service. Under 38 U.S.C.A. § 1153, aggravation of a preexisting injury or disease is presumed where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. However, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). To support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). The Veteran's service treatment records (STRs) indicate no complaints or treatment for a left knee injury or other onset during service. The relevant STRs dated March 1966, May 1966, August 1966 and February 1967 indicate the Veteran reported recurrent bilateral knee pain - the occurrence of a symptom. In his August 1967 pre-separation medical examination report, no left knee abnormalities were noted and the Veteran was assigned a profile designation of "1" for his lower extremities under the PULHES system. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). In February 1973, the Veteran underwent a VA examination that focused on whether the Veteran's now service-connected right knee disorder caused his current left knee disorder. However, the "history" section of the examination report indicates that the Veteran told the examiner he experienced daily locking, effusion and pain - all symptoms - in his left knee approximately one year ago. During a June 1973 hearing, the Veteran testified that post-service, his left knee was "very stable" and that he runs track. In an April 1981 private progress note, the Veteran reported bilateral knee discomfort and pain. In May 1981, the Veteran underwent private orthopedic treatment. Although no diagnosis was given, the Veteran reported recurrent left knee pain. The radiology report indicated medial joint narrowing with early spur formation, and the examiner noted a possible chronic tear of the lateral meniscus. A VA medical certificate, dated January 1996, indicates the Veteran reported bilateral knee pain. The Veteran was diagnosed with degenerative joint disease (DJD) in both knees. No etiology opinion was provided. A private radiology report dated October 1997 indicated the Veteran lacerated his left knee with a chainsaw. He was diagnosed with status post-surgery, degenerative changes. The radiology report indicated no fracture or dislocation. In February 1998, the Veteran underwent right knee joint replacement and staple removal. Although the surgery was not focused on the left knee, the Veteran was diagnosed with chronic pain and arthritis in both knees. No etiology opinion was provided. In April 2011, the Veteran underwent a VA examination. The Veteran was diagnosed with bilateral knee post operation total joint arthroplasty. The examiner opined that the Veteran's left knee disorder is "related to" his "pre, during and post service events." However, the examiner's opinion is contradictory because it also indicates there was "no service event to [the] left knee." The opinion is therefor of little probative value. However, the examiner noted that the Veteran reported being able to bike five miles and walk one mile on a treadmill in January 2011. In a May 2011 addendum to the April 2011 VA examination, the examiner opined, in pertinent part, that the Veteran's left knee disorder was not permanently aggravated by service. The examiner also noted that the word "during" was a typographical error and the Veteran's current left knee disorder naturally progressed due to pre-service and post-service events. In a letter from Earl Anderson, M.D. dated June 2011, the physician opined that the Veteran's "knee pain" was aggravated by service and post-service events. However, Dr. Anderson's opinion is of little probative value because it is not factually informed. While the physician observed that there was "some potential for injuries" that occurred prior to service, there is "no evidence that these led to any permanent injuries while he was inducted into the service." However, Dr. Anderson does not note that relevant STRs dated March 1966, May 1966, August 1966 and February 1967 indicate the Veteran reported recurrent bilateral knee pain that service medical examiners had diagnosed chondromalacia. VA medical records dated January 2011 to August 2014 indicate the Veteran underwent treatment. No etiology opinion was provided. In July 2014, the Veteran was afforded another VA examination. The Veteran was diagnosed with status post total knee surgeries with prosthetic knee. The examiner opined, in pertinent part, that the Veteran's left knee disorder was not permanently aggravated by service. The examiner explained that the Veteran's in-service football injury was "recurrent both knees strain MCL right [greater than] left," and that a ligament strain was unlikely to cause permanent aggravation of a preexisting disorder, and such strains usually heal with little to no residuals. In April 2017, the Veteran was afforded another VA examination. The Veteran was diagnosed with left total knee replacement. Although the examiner did not opine as to whether the Veteran's preexisting left knee disorder was permanently aggravated by his active service, the examiner noted that the Veteran's first left knee surgery in 1972 was an inevitable result of the Veteran's preexisting left knee disorder. The examiner also noted that arthritis and degenerative change in the left knee would inevitably develop as a result of the 1972, post-service left knee surgery. A preponderance of the evidence is against a finding that the Veteran's preexisting left knee disorder was permanently aggravated beyond its natural progression during active service. Two VA examinations concluded that the Veteran's preexisting left knee disorder was not permanently aggravated beyond its natural progression by the Veteran's active service, and one VA examination concluded that arthritis and degenerative change would have inevitably occurred due to the Veteran's 1972 left knee surgery. Therefore, service connection is not warranted and the claim is denied. Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran asserts that due to his right knee disorder, he had to favor his right knee by walking with an abnormal gait to utilize his left knee more, which either aggravated his preexisting left knee disorder or caused his current left knee disorder. However, the STRs contain no complaints or treatment to the left knee that relate to the Veteran's assertions. In January 1973, the Veteran underwent a private orthopedic examination. The Veteran was diagnosed with a torn anterior cruciate and menisci in the left knee. The examiner opined that the Veteran's right knee instability "may have played some contributing factor to the injury of the left knee, which also resulted in the tearing of the anterior cruciate and the menisci." The examiner's January 1973 observation is speculative. It does not mention any pre-service left knee history, and is essentially expressed in speculative terms. Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (a medical opinion is speculative when it uses equivocal language such as "may well be," "could," or "might"). In February 1973, the Veteran was afforded a VA examination. The Veteran was diagnosed with unstable left knee with laxity of cruciate ligaments, status postoperative. The examiner opined that the Veteran's right knee instability was not likely to cause ligament or cartilage deterioration in the left knee. The Veteran stated that both knees felt unsteady; however, a radiology examination indicated the left knee was within normal limits. In September 1975, the Veteran was afforded a VA examination. He was diagnosed with postoperative status, laxity of medial and lateral collateral ligament in his left knee. The examiner opined that the Veteran's right knee did not cause his left knee difficulties. The examiner noted that the Veteran walks with a normal gait. It was also noted that the Veteran's left knee contained no ligamentous instability, fluid effusion, enlargement, crepitation, or other abnormality. In January 1979, the Veteran was afforded another VA examination. Although the examination was not focused on the left knee, the examiner noted that the Veteran stands and walks in good coordination, and both knees have minor instability. In June 1982, the Veteran was afforded a VA examination. He was diagnosed with an unstable left knee, status post-operative with degenerative change. The examiner opined that the Veteran's left knee diagnosis was "probably connected" to his right knee disorder. The examiner's opinion is of low probative value because it speculates on the question of etiology. Polovick, supra. In August 1992, the Veteran underwent private orthopedic treatment. The Veteran was diagnosed with medial collateral and cruciate instability in the left knee greater than the right knee. No etiology opinion was provided. In August 1998, the Veteran underwent a private orthopedic evaluation. Although no diagnosis was provided, the examiner opined that it was "difficult to correlate" the progression of his left knee disorder to his right knee disorder. This opinion is of low probative value because it speculates on the issue of etiology. Polovick, supra. In a January 2009 letter, Dr. Anderson opined that the Veteran developed abnormal gait due to his right knee, which resulted in his left knee deterioration. This opinion is conclusory and does not provide the Board with sufficient analysis to consider and weigh the opinion. It does not account for the Veteran's pre-service history. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). In a February 2009 letter, the Veteran's private provider J. Doty, D.P.M., opined that the Veteran's original right knee injury caused altered gait and degenerative changes in the left knee. This opinion is also conclusory and does not provide the Board with sufficient analysis to consider and weigh the opinion. It does not account for the Veteran's pre-service history. Id. In February 2009, the Veteran was afforded another VA examination. In direct contradiction to the opinion of Dr. Doty as to the Veteran's altered gait, and although the examination was not focused on the left knee, the examiner noted the Veteran's gait as normal. In June 2014, the Veteran underwent a VA physical evaluation. Although no diagnosis was provided, the examiner noted the Veteran did not have normal gait due to his total knee replacements but did not otherwise comment on the causality of the left knee dysfunction. No etiology opinion was provided. In July 2014, the Veteran was afforded another VA examination. The Veteran was diagnosed with status post total knee surgeries with prosthetic knee. The examiner opined that the Veteran's left knee disorder was not caused or aggravated by his service-connected right knee disorder. In April 2017, the Veteran was afforded another VA examination. The Veteran was diagnosed with left total knee replacement. The examiner opined, in pertinent part, that the Veteran's left knee disorder was not caused or aggravated by his service-connected right knee disorder. The examiner explained that the Veteran's service-connected right knee disorder is unlikely to result in a torn anterior cruciate ligament in the left knee, and that the 1972 left knee surgery was a continuation of the surgery the Veteran was recommended to undergo before entering service. A preponderance of the evidence is against a finding that the Veteran's preexisting left knee disorder was aggravated by the Veteran's service-connected right knee disorder and that the Veteran's current left knee disorder was caused by his service-connected right knee disorder. Four VA examiners concluded that the Veteran's left knee disorder was not caused or aggravated by his service-connected right knee disorder. Contrary to the Veteran's assertions, four VA examiners observed the Veteran's gait as normal. Moreover, the Veteran's June 2012 testimony is undermined by his prior statement made to the April 2011 VA examiner. Therefore, service connection is not warranted and the claim is denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for a left knee disorder, to include as secondary to a service-connected right knee disorder, is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs