Citation Nr: 1754570 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 12-12 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a left knee disorder, to include as secondary to a right knee disability. 2. Entitlement to an initial evaluation in excess of 10 percent for right knee tendonitis. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1990 to July 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an RO hearing in October 2012. Subsequently, he had a Board hearing in June 2014. Thereafter, the Board issued a decision in August 2014 which denied a higher initial rating and earlier effective date for the Veteran's service-connected right knee disability. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The parties to this appeal entered into a June 2015 Joint Motion for Partial Remand (Joint Motion), wherein they agreed not to disturb the Board's denial of an earlier effective date for the right knee disability and that the Board based its denial of a higher initial rating for such disability on inadequate examinations. In an Order dated later in June 2015, the Court granted the Joint Motion and remanded the higher initial rating claim back to the Board. In addition, the Board's August 2014 decision reopened the Veteran's claim of service connection for a left knee disability and remanded it to the RO for additional development. The decision below addresses the Veteran's left knee claim. The remaining issue is addressed in the remand section following the decision. FINDING OF FACT The Veteran's left knee disorder is not related to service and is not caused or aggravated by his right knee disability. CONCLUSION OF LAW The criteria to establish service connection for a left knee disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion 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. § 1110; 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)). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection can be established by sufficient evidence of a continuity of symptomatology between current disability and military service. 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as arthritis). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Facts and Analysis The Veteran reported in an August 2009 notice of disagreement that he had onset of patellar tendonitis in his left knee during service in 1995. He then reported in a November 2011 statement that he was treated for a left knee disorder at the same time he was treated for his right knee disability during service. Thereafter, the Veteran stated at the October 2012 RO hearing that his left knee disorder was caused by jumping off equipment while wearing a backpack and Kevlar vest for nine years during service. He further stated that he had pain during service, but did not realize it was tendinitis. Subsequently, in an August 2013 statement, the Veteran reported that his left knee disorder is related to over compensating for his right knee disability. The Board notes that, while the Veteran's service treatment records (STRs) contain several records related to his right knee in 1995, there are no reports of symptoms or medical findings in regard to his left knee during service. The Veteran was first afforded an examination in regard to this claim in October 2011. The examiner noted that the Veteran's left knee exhibited tenderness. However, the examiner did not diagnose the Veteran with a left knee disorder at such time and appeared to indicate that his left knee findings were not related to his right knee disability. Subsequently, the Veteran was examined by VA in regard to his left knee disorder in March 2013. The examiner diagnosed him with left knee strains and sprains. The examiner reported that there were no in-service records related to a left knee condition and that the Veteran was not treated for such a condition until several years after his discharge from service. The examiner concluded that the Veteran's left knee disorder is less likely than not due to, or the result of, his right knee disability. Thereafter, pursuant to the Board's August 2014 remand, the Veteran was afforded another VA examination in regard to this claim in September 2014. The Veteran told the examiner that he had left knee pain during service and sought medical assistance. He also reported that he first saw a medical provider after discharge for such condition in 2008. The examiner diagnosed the Veteran with degenerative joint disease of the left knee. However, the examiner found that this disorder was less likely than not incurred in, or caused by, an in-service injury, event, or illness. The examiner explained that the Veteran's STRs do not show reports of left knee pain and that the Veteran did not seek treatment for his left knee for many years after his discharge from service. Then, in November 2014, the Veteran submitted an October 2014 examination report from a private physician. This physician reported that the Veteran has chronic left knee pain and diagnosed him with patellar tendinitis of the left knee. However, the physician did not offer an opinion as to causation or aggravation of such disorder. The Veteran's left knee was examined again in July 2015. However, this examiner also did not offer an opinion as to causation or aggravation of the Veteran's left knee disorder. Thereafter, in August 2017, pursuant to 38 C.F.R. § 20.901(a), the Board obtained an expert medical opinion from the Veteran's Health Administration (VHA). Following a review of the record, the examiner accepted a diagnosis of left knee infrapatellar bursitis or tendinitis. He noted that the Veteran's STRs do not contain any complaints or treatment in regard to his left knee. The examiner further noted that, while the Veteran's military occupational specialty involved action which could result in development of tendinitis, there is no record of acute signs or symptoms of such disorder for the Veteran's left knee during service or within a year following his separation from service. Based on these findings, the examiner concluded it was less likely than not that the Veteran's left knee disorder was caused by his activities during service. The examiner further noted that a left knee disorder could be caused or aggravated by a right knee disability. In this regard, he referenced a medical paper written by an orthopedic surgeon. The orthopedic surgeon concluded that limping due to a disability of the opposite leg is the factor which causes abnormal and damaging stress on the uninjured leg. The examiner stated that the Veteran has not been found to have an antalgic gait or other gait disturbance. Based on these findings, the examiner concluded that it is less likely than not that the Veteran's left knee disorder was caused or aggravated by his right knee disability. The Board finds the August 2017 VHA examiner's opinion is clear and unequivocal and is based on the relevant information, including the Veteran's STRs and post-service treatment records. Moreover, the examiner's explanation is logical and follows from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, his conclusion that the Veteran's left knee disorder is less likely than not caused by, or had its onset within one year of, service and is less likely than not caused or aggravated by his right knee disability is highly persuasive and probative evidence. While the Veteran believes that his left knee disorder is related to his service and/or is caused or aggravated by his right knee disability, these are complex medical questions outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case. This nexus question involves complex medical matters requiring expert consideration of the nature of the Veteran's left knee symptoms, his right knee disability, and the medical significance of these factors in the context of his current left knee disorder. These medical questions cannot be considered within the competence of a non-expert lay witness. Thus, the Veteran, as a lay person, has not established the competence needed to rebut the expert medical opinion. See Fountain v. Shinseki, 27 Vet. App. 258, 274-75; Monzingo, 26 Vet. App. at 106. As such, his opinion is not adequate to rebut the VA examiner's opinion, nor is it otherwise sufficiently probative to be considered competence evidence tending to increase the likelihood of a positive nexus between his left knee disorder and service or his right knee disability. See Fountain, 27 Vet. App. at 274-75. Accordingly, the preponderance of the evidence is against the claim on a direct, presumptive, and secondary basis. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection for a left knee disorder is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a left knee disorder is denied. REMAND The Veteran is seeking an initial rating in excess of 10 percent for his service-connected right knee disability. Based on examinations of the Veteran's right knee conducted in October 2011 and March 2013, the Board concluded in its August 2014 decision that his right knee does not exhibit symptomatology indicative of a higher rating under the assigned Diagnostic Code (DC) or a compensable rating under other applicable DCs. Thereafter, in a June 2015 Joint Motion, the parties to the appeal at the Court agreed that the Board erred in relying on such examinations. In this regard, the parties found that such examinations were inadequate because the examiners did not offer findings as to what degree the Veteran's range of motion would be limited during flare-ups of his right knee disability. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Board notes that additional examinations of the Veteran's right knee were conducted in September 2014 and July 2015. However, the examiners stated that they could not offer findings in regard to the Veteran's right knee range of motion limitations during flare-ups without resorting to speculation. In addition, the Veteran submitted an examination of his right knee performed by a private physician in November 2014, but this physician also did not offer findings as to the Veteran's range of motion during flare-ups. The Board further notes that a recent Court holding found that examiners must characterize additional functional loss during flare-ups when the examination is not conducted during a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017) (outlining VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups). In addition, the Court also held that VA orthopedic examinations should include tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing, if applicable. Correia v. McDonald, 28 Vet. App. 158 (2016). However, none of the examinations of record contain such findings. Therefore, the Board finds that a remand is warranted for another examination to obtain findings pursuant to the Court's remand as well as pursuant to the Court's holdings in Sharp and Correia. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA examination by an appropriate medical professional to assess the Veteran's service-connected right knee disability. The examiner should include specific findings regarding pain on range of motion testing and an estimation of functional loss, per Correia and Sharp. The Veteran should be tested for pain in both weight-bearing and nonweight-bearing positions, and on both active and passive motion. If this cannot be performed, the examiner should explain why. If the examination is not conducted during a flare-up, the functional impact of a flare-up should be estimated based on the Veteran's reports. If this cannot be done, the examiner should explain why. 2. Finally, readjudicate the claim remaining on appeal. If the claim is not granted in full, furnish the Veteran and his representative with a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs