Citation Nr: 18158692 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-47 945 DATE: December 18, 2018 ORDER Service connection for a left knee disability, to include as secondary to a service-connected right knee disability, is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for status-post right knee arthroscopy with partial meniscectomy X 2, is remanded. FINDINGS OF FACT 1. The Veteran is currently diagnosed with osteoarthritis of the left knee. 2. With resolution of all reasonable doubt in his favor, the Veteran’s current osteoarthritis of the left knee is proximately due to, or caused by, the service-connected right knee disability. CONCLUSION OF LAW The criteria to establish service connection for a left knee disability are 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 CONCLUSION The Veteran served on active duty from March 1978 to July 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated June 2014 of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In an August 2016 rating decision, the RO increased the initial disability rating for the right knee disability to 10 percent, effective June 2, 2016. In October 2018, the RO denied an initial disability rating in excess of 10 percent for the Veteran’s right knee disability, but amended the effective date for the rating to February 21, 2013. Additional evidence in the form of a December 2018 VA knee and lower leg conditions examination was associated with the claims file after the August 2016 adjudication of the claim, as reflected in the Statement of the Case (SOC). Although the Veteran did not waive initial consideration of this evidence by the RO, the agency of original jurisdiction, the Board is granting service connection for a left knee disability; therefore, the Veteran is not prejudiced by the Board’s consideration of this evidence in the first instance. Further, as the Board is remanding the issue of an entitlement to an initial disability rating in excess of 10 percent for the service-connected right knee disability, the RO will have the opportunity to consider the additional evidence in the first instance. As phrased on the title page of this decision, the Board has recharacterized the issue involving entitlement to service connection for a left knee disability, to include consideration of the claim on a secondary basis, and to better reflect the information contained in the medical evidence of record. Preliminary Matter 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Pertinent Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). Showing continuity of symptomatology since service under 38 C.F.R. § 3.303(b) is an alternative means of linking a claimed disability to service, but is only available for the “chronic diseases” specifically enumerated in 38 C.F.R. § 3.309(a), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, while the Veteran has a diagnosis of left knee osteoarthritis, and arthritis is among the diseases enumerated under 38 C.F.R. § 3.309(a), considering the 22-year gap between the service treatment records (STRs) and the earliest post-service treatment records reflecting the diagnosis of a left knee disability, establishing service connection for the Veteran’s claim pursuant to 38 C.F.R. § 3.303(b) is not for application. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis The Veteran claims that his left knee disability is related to service. See Veteran’s Application for Compensation received February 21, 2013; Statement in Support of Claim received October 27, 2014. The Veteran has a current diagnosis of degenerative joint disease (DJD) and osteoarthritis of the left knee. See VA examination reports dated June 2, 2016 and December 3, 2018. Therefore, the threshold element of service connection is met. There is no evidence in the Veteran’s STRs of complaints, diagnosis, or treatment of a left knee injury or disease. Post-service treatment records reflect that the Veteran was first diagnosed with a left knee meniscal tear in November 2012. At that time, the private physician, noting a reasonable degree of medical certainty, attributed the left knee meniscal tear to a September 2012 work injury. See Private treatment record dated November 29, 2012. In February 2013, the Veteran underwent a left knee arthroscopy and meniscectomy. See Private operative report dated February 5, 2013. During a VA examination in April 2014, the examiner offered no diagnosis, but opined that it was less likely than not that the Veteran’s left knee disability is related to service, noting that the STRs do not reflect an in-service injury, and the Veteran reported during the examination that he injured his left knee in 2012, well after his separation from service. During a VA examination in June 2016, the Veteran was diagnosed with a “left knee condition,” that included a history of left knee arthroscopy and meniscectomy. The examiner opined that it is less likely than not that the Veteran’s left knee DJD is proximately due to or the result of his right knee disability as the medical literature does not support a causal connection between a knee arthroscopy and DJD in the opposite knee. The examiner further noted that the Veteran’s DJD is more likely related to prior post-service knee surgery. In a July 2016 VA addendum opinion, a different VA examiner opined that the Veteran’s left knee arthroscopy with meniscal tear was less likely than not aggravated beyond its natural progression by his service-connected right knee disability as the Veteran’s right knee condition does not cause excess mechanical stress on the left knee. In December 2018, the Veteran was given another VA examination of the knees. The examiner diagnosed left knee joint osteoarthritis, and opined that the disease is at least as likely as not proximately due to the Veteran’s service-connected right knee disability. Notably, the examiner observed that the Veteran has had several surgeries on his right knee for meniscus tears, and concluded that multiple right knee operations could alter the Veteran’s gait from favoring the right knee, in turn causing pain and osteoarthritis in the left knee. The Board emphasizes that to resolve the issue of a causal link between the Veteran’s left knee disability, namely osteoarthritis, and his service-connected right knee disability, the evidence need only be in equipoise. It need not be clearly determined whether a disability is proximately due to a service-connected disorder. 38 C.F.R. § 3.303(a). See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (noting that in a merits adjudication, the evidence need only reach equipoise). Thus, based on the body of evidence in this case, the Board finds that the December 2018 VA opinion, itself, places in relative equipoise the issue of whether the Veteran’ left knee osteoarthritis was proximately caused by his service-connected right knee disability. Under the benefit of the doubt rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the appellant shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). Accordingly, the Board finds that, with resolution of any doubt in the Veteran’s favor, service connection for a left knee disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for status-post right knee arthroscopy with partial meniscectomy X 2. The record does not reflect that the RO has readjudicated the Veteran’s right knee claim after the December 2018 VA examination was associated with the claims file, and there has been no waiver of consideration of this new evidence by the RO, the agency of original jurisdiction. Therefore, the Board may not consider the evidence in the first instance. 38 C.F.R. § 20.1304(c) (2017). The matter is REMANDED for the following action: 1. Ensure that all outstanding treatment records are associated with the claims file. (Continued on the next page)   2. After ensuring any other necessary development has been completed, readjudicate the Veteran’s claim for an initial disability rating in excess of 10 percent the service-connected right knee disability, considering all evidence added to the record since the August 2016 SOC, including the December 2018 VA examination report. Thereafter, return the appeal to the Board. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel