Citation Nr: 1753735 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 10-12 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder as secondary to a left knee disorder. REPRESENTATION Veteran represented by: Sandra E. Booth, Attorney at Law ATTORNEY FOR THE BOARD J. George, Associate Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from October 1980 to May 1981 and has additional service in the National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April 2008 by the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The appellant's current left knee tricompartmental osteoarthris is related to left knee injuries during ACDUTRA. 2. The appellant's current right knee tricompartmental osteoarthritis has been aggravated by his now service-connected left knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee tricompartmental osteoarthritis have been met. 38 U.S.C. §§ 101, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.306 (2017). 2. The criteria for service connection for right knee tricompartmental osteoarthritis, as secondary to left knee tricompartmental osteoarthris, have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present 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'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disabilities that are secondary to already service-connected disabilities. 38 C.F.R. § 3.310. Service connection is warranted for disabilities that are proximately due to or the result of a service-connected disease or injury, or for an increase in any disease or injury that is proximately due to or the result of a service-connected disease or injury. Id. Active military service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA is full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA is duty other than full-time duty prescribed for Reserves. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6(d). While claimants who served on active duty are presumed to be sound except as to conditions noted on entrance, this presumption does not apply to those whose service consists of ACDUTRA and INACDUTRA. 38 U.S.C. 1111; 38 C.F.R. § 3.304(b). Thus, the Board is to consider the appellant's full medical history to determine whether aggravation occurred during service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Analysis The appellant has a long history of knee problems, some of which predate his ACDUTRA and National Guard service. The appellant notes an injury to his left knee during ACDUTRA and claims that his current left knee tricompartmental osteoarthritis and post-surgical changes are due to that April 1981 injury. He contends that his current right knee osteoarthritis was caused or aggravated by his left knee tricompartmental osteoarthritis and post-surgical changes. In June 1975, the appellant underwent a right knee arthrogram after a basketball injury. He was followed by a private physician, Dr. Ward until December 1975, at which time he was able to resume all normal activities. In a Report of Medical History that the appellant completed in November 1979, the Veteran disclosed his 1975 knee surgery and, after examination, was found to be physically qualified for service. In the claims file, there is also mention of a left knee injury due to a motorcycle accident. The appellant's left knee was injured in a 1978 motorcycle accident. During ACDUTRA, he notes treatment for left knee injuries in November 1980 and April 1981. In March 1982, the Veteran underwent an Ellison lateral extra-articular reconstruction on his left knee. In January 1985, after lifting a heavy log, the appellant's knee buckled, and he had acute discomfort. At this point, his treating physician recommended that he not return to work. There are also indications that the Veteran further injured his knees in 1991 due to weakness, but did not have further surgery. In April 2007, the appellant was afforded a VA examination. At that time he complained of frequent severe pain, weakness, stiffness, swelling, heat, redness, and instability (giving way and locking). The appellant treated his symptoms with over-the-counter medications, and did not use narcotic medication. He denied flare-ups, but symptoms were brought on by use. Upon x-ray taken in October 2006, there was evidence of degenerative tears of the posterior horn of the medial meniscus, moderate chondromalacia, lateral meniscal tear, and absence of the anterior cruciate ligament in the left knee. In the right knee, there was an anterior cruciate ligament deficiency, buckling of the posterior cruciate ligament, marked abnormality of the posterior horn of the medial meniscus, moderate chondromalacia, and multiple other abnormalities. The April 2007 examiner opined that as to the left knee, it was well documented that the Veteran had a left knee condition that pre-existed service. However, it was just as likely as not that the disabling injury to the Veteran's left knee was due to injury during service. The examiner stated that it was impossible to determine the extent to which in-service versus non-service injuries contributed to the current condition. The examiner's opinion as to the right knee is to the same affect, except that he opined that the left knee injury in-service very likely aggravated the right knee. Another VA examination was conducted in October 2008. The examiner noted the Veteran's injury to the right knee requiring surgical repair at the time of the 1975 motorcycle accident. The left knee at that time was completely normal. After ACDUTRA, the appellant required surgery on the left knee in 1982. Both knees were reinjured in 1985, resulting in surgery in 1985 and 1986. The examiner opined that the appellant had some damage to his left knee prior to service, but that the damage was aggravated by the in-service injury. However, the stated that he could not opine without resort to mere speculation the degree to which the appellant's right knee disorder was caused or aggravated by the left knee disability because the appellant had a significant injury prior to service and significant injury post-service. The preponderance of the evidence does show that he had left knee disability preexisting his ACDUTRA periods. However, his current left knee disability is not the same diagnosis. Rather, the persuasive medical opinion evidence relates the current disability, at least in part, to the in-service left knee injuries during ACDUTRA. Thus, the nexus element of the claim is at least in a state of equipoise. When resolving reasonable doubt in the appellant's favor, the Board finds that his current left knee tricompartmental osteoarthris is related to left knee injuries during ACDUTRA. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. It is of no consequence to the service connection inquiry that the examiners have not been able to comment upon the exact extent of causation. It is enough that it exists. As a result, service connection is warranted for the left knee disability. A preponderance of the evidence also shows that the appellant had a preexisting right knee disability. Unlike the left knee claim, the evidence does not establish a nexus to ACDUTRA for his right knee. However, the nexus element of the claim on a secondary basis is at least in a state of equipoise. When resolving reasonable doubt in the appellant's favor, the Board finds that his current right knee tricompartmental osteoarthritis has been aggravated by his now service-connected left knee disability. The Board notes that 38 C.F.R. § 3.310 (b) contemplates a baseline to assess the severity of a nonservice-connected disability that is aggravated by a service-connected disability. However, the Board determines that this is more akin to a downstream rating aspect of the claim that should be addressed in the first instance by the RO following implementation of this decision. ORDER Service connection is granted for left knee tricompartmental osteoarthritis is granted. Service connection is granted for right knee tricompartmental osteoarthritis, as aggravated by left knee tricompartmental osteoarthritis, is granted. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs