Citation Nr: 1800351 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-00 268A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for right knee advanced tricompartmental degenerative joint disease (DJD), to include as secondary to service-connected left knee severe tricompartmental DJD with effusion, pseudo laxity, and scar. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected left knee severe tricompartmental DJD with effusion, pseudo laxity, and scar. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from December 1954 to November 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a June 2014 hearing held via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The matter was previously before the Board in July 2014 and June 2015. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Right knee advanced tricompartmental DJD is not related to or aggravated by service-connected left knee severe tricompartmental DJD with effusion, pseudo laxity, and scar. 2. Low back disability is not related to or aggravated by service-connected left knee severe tricompartmental DJD with effusion, pseudo laxity, and scar. CONCLUSIONS OF LAW 1. Right knee advanced tricompartmental DJD is not proximately due to or aggravated by service-connected left knee severe tricompartmental DJD with effusion, pseudo laxity, and scar. 38 U.S.C. §§ 1110, 1131, 1137 (2012); 38 C.F.R. § 3.310 (2017). 2. Low back disability is not proximately due to or aggravated by service-connected left knee severe tricompartmental DJD with effusion, pseudo laxity, and scar. 38 U.S.C. §§ 1110, 1131, 1137; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that service connection is warranted for right knee and low back conditions as secondary to service-connected left knee severe tricompartmental DJD with effusion, pseudo laxity, and scar. 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Similarly, to establish a right to compensation for a present disability secondary to a service-connected disability, a veteran must demonstrate the existence of (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. 38 C.F.R. § 3.310(a); Wallin v. West, 11 Vet. App. 509 (1998). As an initial matter, the Board notes that the Veteran has not alleged, nor does the record indicate, that his right knee and low back conditions directly result from an injury incurred in or aggravated by active service. Accordingly, the Board will focus on whether service connection is warranted for each condition as secondary to service-connected left knee severe tricompartmental DJD with effusion, pseudo laxity, and scar. Right Knee The first element of a secondary service connection claim - a current disability - is met, as the record shows that the Veteran has right knee advanced tricompartmental DJD. In addition, the second element - a service-connected disability - is met, as the Veteran is service connected for left knee severe tricompartmental DJD with effusion, pseudo laxity, and scar. For the third element - a nexus between the two disabilities - the Board finds this element has not been established. The Veteran's representative stated at the June 2014 hearing that the Veteran's left knee affected his right knee. The Veteran's son testified at the hearing that the Veteran has walked with a limp for many years. These individuals are competent to report symptoms and observations that require only personal knowledge through one's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Such statements are also credible. To the extent these statements attempt to determine the causation of the Veteran's conditions, however, such a determination falls outside the realm of common knowledge of a lay person, as it deals with joint conditions and the interaction of various conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The record does not demonstrate the medical credentials of the lay statement providers to offer such opinions. The Board notes that there are multiple VA examinations associated with the claims file: a May 2011 VA examination, November 2014 VA examination, January 2016 VA examination, and two July 2016 VA examination addenda. There are also two VA medical opinions, received in June 2017 and July 2017. For various reasons, the previous VA examinations have been found inadequate by the Board. The May 2011 VA examination did not provide sufficient rationale for its finding, while the remaining VA examinations did not specifically address the lay statements regarding the effect of the Veteran's left knee on his right knee. Accordingly, the medical analysis will focus on the two VA medical opinions. The VA medical opinion received in June 2017 found it less likely than not that the Veteran's right knee osteoarthritis was caused by his left knee disability, citing instead the aging process as a cause and indicating that "[t]he medical literature does not support the assertion that an abnormal gait alone will cause [right knee osteoarthritis]." The June 2017 VA medical opinion did find, however, that it was at least as likely as not that the Veteran's service-connected left knee disability aggravated his right knee osteoarthritis beyond its natural progression. To support this, the opinion provider noted that the most common ligament injury in "young active people" is a tear of the anterior cruciate ligament and that treatment for such a tear in the 1950s often involved reconstruction techniques that "were not very good" and would lead to "rapid progression to severe arthritis," which would lead to pain and gait abnormalities. The June 2017 VA medical opinion therefore concluded that the Veteran's left knee surgery (and the Veteran's son's testimony of a limp) was consistent with a chronic abnormal gait that could put increased stress on other joints. Accordingly, the increased stress on the right knee joint led to an aggravation beyond the natural progression. In contrast, the VA medical opinion received in July 2017 found that the Veteran's right knee condition was neither caused nor aggravated by the left knee condition. First, the July 2017 VA medical opinion noted that multiple VA examinations of the left knee had found the left knee to be stable, which "would argue strongly against markedly abnormal gait in the left lower extremity resulting in 'abnormal' stresses on the right knee." Second, the medical opinion noted that the Veteran's right knee radiographic evidence showed "advanced tri-compartmental degenerative joint disease, unchanged," which is significant because it shows a "global breakdown" of the right knee that is also on a symmetric basis, similar to the left knee. The VA opinion found that an abnormal gait would result in "preferential breakdown" of one compartment or another, which is not present. The July 2017 VA medical opinion also noted that lumbar radiographic evidence supported this finding, because it showed symmetric, age-related DJD in both knees and both hips. Third, the medical opinion found that there was insufficient evidence that the limp noted by the Veteran's son was a "real gait alteration" that would affect the right knee. The medical opinion pointed out that the cause of the witnessed limp was not known and "there is nothing to indicate that this may have come from the left knee." The medical opinion also emphasized that the left knee was found to be stable on multiple examinations and that the joint breakdown of both knees with symmetrical. After considering this evidence, the Board gives greater weight to the VA medical opinion received in July 2017. This medical opinion relied on the actual state of the Veteran's left knee (rather than conjectured impact of a possible surgery type, as in the June 2017 VA medical examination) to determine that a gait abnormality was not present. Accordingly, the Board finds that the medical evidence weighs against a finding of service connection, and the claim is denied. Low Back Turning to the low back claim, the first element of a secondary service connection claim - a current disability - is met, as the record shows that the Veteran has degenerative arthritis of the spine. In addition, the second element - a service-connected disability - is met, as the Veteran is service connected for left knee severe tricompartmental DJD with effusion, pseudo laxity, and scar. For the third element - a nexus between the two disabilities - the Board finds this element has not been established. The Veteran's representative stated at the June 2014 hearing that the Veteran's left knee affected his spine through his gait: he had to favor his knee, which "put the hips at a different angle." The Veteran's son testified at the hearing that the Veteran has walked with a limp for many years. These individuals are competent to report symptoms and observations that require only personal knowledge through one's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Such statements are also credible. To the extent these statements attempt to determine the causation of the Veteran's conditions, however, such a determination falls outside the realm of common knowledge of a lay person, as it deals with joint conditions and the interaction of various conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The record does not demonstrate the medical credentials of the lay statement providers to offer such opinions. As stated above, the Board notes that there are multiple VA examinations associated with the claims file: a May 2011 VA examination, November 2014 VA examination, January 2016 VA examination, and two July 2016 VA examination addenda. There are also two VA medical opinions, received in June 2017 and July 2017. For various reasons, the previous VA examinations have been found inadequate by the Board. The May 2011 VA examination did not provide sufficient rationale for its finding, while the remaining VA examinations did not specifically address the lay statements regarding the effect of the Veteran's left knee on his low back. Accordingly, the medical analysis will focus on the two VA medical opinions. The VA medical opinion received in June 2017 found it less likely than not that the Veteran's low back degenerative arthritis was caused by his left knee disability, citing instead the aging process as a cause and indicating that "[t]he medical literature does not support the assertion that an abnormal gait alone will cause [low back degenerative arthritis]." The June 2017 VA medical opinion did find, however, that it was at least as likely as not that the Veteran's service-connected left knee disability aggravated his low back degenerative arthritis beyond its natural progression. To support this, the opinion provider noted that the most common ligament injury in "young active people" is a tear of the anterior cruciate ligament and that treatment for such a tear in the 1950s often involved reconstruction techniques that "were not very good" and would lead to "rapid progression to severe arthritis," which would lead to pain and gait abnormalities. The June 2017 VA medical opinion therefore concluded that the Veteran's left knee surgery (and the Veteran's son's testimony of a limp) was consistent with a chronic abnormal gait that could put increased stress on other joints. Accordingly, the increased stress on the low back led to an aggravation beyond the natural progression of the age-related low back degenerative arthritis. On the other hand, the VA medical opinion received in July 2017 found that the Veteran's low back condition was neither caused nor aggravated by the left knee condition. The VA medical opinion noted that the Veteran's pathology "is global in nature," with degenerative disc disease "at all levels," including the "sacro-iliac joints, up to the lower thoracic spine, and even into the hip joints." The VA medical opinion found it "unlikely that such a global spine disease . . . could have been caused by the knee or any subtle changes in gait, nor could it have caused any aggravation." The medical opinion also addressed the Veteran's son's testimony regarding a limp, but found a lay person unqualified to determine the origin of the limp (as is described above in the right knee disability section), including that the Veteran's limp could be solely based on his genetically based Varus (bow legged) deformity of both knees. After considering this evidence, the Board gives greater weight to the VA medical opinion received in July 2017. This medical opinion relied on the actual state of the Veteran's left knee (rather than conjectured impact of a possible surgery type, as in the June 2017 VA medical examination) to determine that a gait abnormality was not present. Additionally, the VA medical opinion considered a fuller picture of the Veteran's condition, as it included the Varus deformity in its analysis. Accordingly, the Board finds that the medical evidence weighs against a finding of service connection, and the claim is denied. ORDER Entitlement to service connection for right knee advanced tricompartmental DJD, to include as secondary to service-connected left knee severe tricompartmental DJD with effusion, pseudo laxity, and scar, is denied. Entitlement to service connection for a low back disability, to include as secondary to service-connected left knee severe tricompartmental DJD with effusion, pseudo laxity, and scar, is denied. ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs