Citation Nr: 1807906 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 13-26 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a right knee disorder, to include as secondary to a service-connected left knee disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran had active service from July 1979 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In April 2015, the Veteran testified at a Travel Board Hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record in the Veterans Benefits Management System (VBMS). Thereafter, the case was remanded by the Board in June 2015 for additional development. That completed, the matter has been returned to the Board for appellate consideration. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. FINDING OF FACT The most probative evidence weighs against a finding that right knee disorder had onset during active service, manifested within one year of service discharge, is otherwise related to active service, or was caused or aggravated by the Veteran's service-connected left knee disorder. CONCLUSION OF LAW The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1101, 1113, 1131 (2014); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in April 2015. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. In that regard, the Board also finds that there has been compliance with the prior June 2015 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). II. Service Connection The Veteran claims that a right knee disorder is proximately due to, the result of, or aggravated by his service-connected right knee disorder. The Board will consider all relevant theories of entitlement. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. § 3.303(a) (2017). 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)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2014); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2017). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2017). An April 1996 VA examination for the left knee documents X-ray images of the bilateral knees. The report documents normal findings of the right knee joint. VA treatment records from July 1997 document the Veteran complaining of right knee pain above the patella. An examination showed right knee tenderness at the superior pole of the patella. The Veteran was referred for physical therapy for quadriceps exercises of the bilateral knees. July 1997 VA Physical therapy notes document an initial visit for what was diagnosed as right leg quadriceps tendonitis. An April 2004 VA primary care note documents the Veteran complaining that his right knee was starting to "act up". The Veteran indicated that it was aching. A June 2004 VA MRI report showed minimal increased signal at the posterior parts of both menisci. However, this did not extend to the articular surface. The appearance was consistent with minimal degenerative change. The presence of any tear in the menisci was not suspected. The cruciate ligaments and the medial and lateral collateral ligaments were normal. The remainder of the examination was also within normal limits. The impression was that the presence of any meniscal tear was not suspected. The remainder of the examination was within normal limits. In a follow-up visit with VA in July 2004, the Veteran reported that he had stepped in a hole, hyperextending his right knee. Since then, his right knee had been slowly improving. It was considerably better per the Veteran's reports, but not quite well. The physician diagnosed sprained right knee, resolving. An August 2008 VA note documents a right knee X-ray. The knee was relatively unremarkable with a mild narrowing of the medial compartment. Degenerative changes were otherwise subtle. A January 2009 VA X-ray report documents minimal medial joint space narrowing. Otherwise, the right knee was normal. The Veteran initially requested service connection for a right knee disorder in January 2009. Then, he claimed that his weight had been shifting to his right knee as a result of his service-connected left knee disorder, causing right knee pain. VA provided an examination in February 2009. The examiner noted the Veteran's medical history. The Veteran reported the onset of right knee pain five to six years previously. The examiner diagnosed degenerative joint disease of the right knee, mild and opined that it was not as likely as not that the right knee pain and minimal to mild degenerative joint disease was the proximate and direct result of his service-connected left knee disability. The examiner supported this opinion by noting that review of the medical literature revealed no accepted medical studies that supported such a relationship that favoring one extremity will result in an injury to the opposite lower extremity. Such data available suggested that this unlikely. Shortly thereafter, a February 2009 MRI showed a one centimeter ganglion cyst medial and adjacent to the base of posterior cruciate ligament. In a February 2009 addendum, the VA examiner relayed this new diagnosis. The impression on the MRI was otherwise unremarkable. VA provided an examination April 2012. The examiner opined that the Veteran had moderate degenerative joint disease in the right knee which was most likely wear and tear, which occurs with time and obesity. In a May 2012 statement, Dr. LL opined that the Veteran's right knee disability was more likely than not related to his left knee disability due to a prolonged altered gait and overcompensating the balance of his body weight from his left side to his right, causing undo wear. No accompanying rationale was provided. In another May 2012 opinion from Dr. LM, a VA physician, the same opinion was provided with no accompanying rationale. VA provided another MRI in June 2012. At that time, the images showed a lateral meniscus tear suspected in the right knee, involving the body with extension into the anterior and posterior horns, abnormal signal in the lateral tibial plateau hyaline cartilage suggesting mild, grade I chondral lesion, mild degenerative osteophytes, and a stable one centimeter ganglion cyst, medially and adjacent to the base of the posterior cruciate ligament. VA obtained a medical opinion in September 2012 to reconcile the conflicting opinions of record. The VA examiner cited to his review of the May 2012 positive opinions. He explained that the opinions provided no rationale for their conclusions and were not supported by the medical literature. The examiner cited to a medical article by a nationally recognized expert in the field of disability and impairment evaluation in support of this statement. Thus, the examiner opined that it was not as likely as not that the Veteran's right knee condition was the direct and proximately result of his service-connected left knee condition or was aggravated by the service-connected left knee condition. The examiner opined that it was more likely than not that the underlying degenerative changes in the opposite extremity would manifest themselves over time, but he relationship was not that of the "injured" lower extremity contributing to an "injury" of the opposite extremity. At the April 2015 Board hearing, the Veteran testified that he placed more weight on his right knee over time as a result of his service-connected left knee disorder. Veteran presented an excerpt from a medical textbook, which his representative contended showed that an altered gait as a result of an injured knee could cause disability in the opposing knee. VA provided an examination in June 2015. The examination report documents an extremely thorough and lengthy opinion. Based on a review of the record and a clinical examination, the examiner provided diagnoses of each right knee disorder diagnosed or previously diagnosed and assessed whether each disorder is etiologically related to service or proximately due to, the result of, or aggravated by the Veteran's service-connected left knee disorder. First, however, the examiner addressed the research submitted by the Veteran's representative at the April 2015 Travel Board Hearing regarding primary osteoarthritis and secondary osteoarthritis. The examiner explained that the Veteran's representative applied the research incorrectly. Primary osteoarthritis had no known cause. Secondary osteoarthritis had causes related to infection, other inflammatory arthritis, or seronegative arthropathies, or injury such as bony injury, fracture bone, or soft tissue such as ligament tear or meniscus tear. The examiner explained that secondary arthritis was unilateral in the affected joint, not in a different joint than the one injured. Secondary osteoarthritis included post-traumatic arthritis, but is not synonymous, as secondary osteoarthritis is also used to refer to arthritis following infection, arthritis with other inflammatory arthritis, and seronegative arthropathies. The examiner noted that the minimal right knee sprain in June 2004 was not sufficient to cause the development of arthritis because it was very minimal. Further, the finding of "minimal degenerative change" in the meniscus by radiology description and "degenerative fraying of menisci in the posterior horns" by the orthopedist description in June 2004 was the effect of wear and tear. The examiner noted that the Veteran's representative believed that the Veteran had secondary osteoarthritis. However, the examiner found that the Veteran clearly had primary osteoarthritis. The examiner assumed, for the sake of argument, that the Veteran actually had right knee arthritis that was secondary to his June 2004 right knee sprain and the degenerative fraying of menisci. The first subsequent finding of osteoarthritis of the right knee in August 2008 was within reason for the development of either primary or secondary osteoarthritis. The examiner noted that the representative's argument, that osteoarthritis of the right knee was secondary to the left knee injury, was not discussed in any research submitted by the representative. The examiner noted that if secondary osteoarthritis develops, it is in the same joint that sustained the injury, not in the opposite joint. Any discussion of secondary osteoarthritis would apply solely to the injury of the right knee causing arthritis in the right knee, not the injury in the left knee causing arthritis in the right knee. The only right knee injury described post-service occurred well after the Veteran left military service and was clearly due to him stepping in a hole while cutting grass. The examiner reiterated that if the osteoarthritis of the right knee that developed in 2008 is truly secondary osteoarthritis, it is not related to the left knee, and it occurred well after the Veteran left military service. The examiner concluded that the Veteran had primary osteoarthritis, which is age and obesity related. Secondary osteoarthritis occurs in the same joint as the injury, not a different joint. Second, the examiner discussed the onset of arthritis in the right knee. He referred to the August 2008 diagnosis of osteoarthritis, which was the first radiographic finding of this condition. The examiner found that there was no right knee condition diagnosed while the Veteran was on active duty from 1979 to 1982. There was no right knee injury described as occurring while in any summer camp or any monthly meeting during the Veteran's service in the reserves. The first mention of right knee complaints was an undated orthopedics VA Medical Center note that the examiner dated in July 1997. The note documented a normal right knee examination with the exception of tenderness at the superior pole of the patella. No diagnosis was made, though the Veteran was referred for physical therapy for quadriceps exercises bilaterally. The examiner found that, most likely, the Veteran had transient quadriceps tendon strain at insertion to proximal patella. The examiner noted that there was no mention found afterward of continuation of pain in the right knee until 2004. Regarding all previous and current right knee diagnoses, the examiner listed them as follows: 1) a likely diagnosis in July 1997 of quadriceps tendon strain at insertion to proximal patella, transient and resolved; 2) a right knee sprain not strain, transient and clearly resolved, in response to an acute injury in June 2004; 3) radiographic findings of osteoarthritis in the right knee in August 2008; 4) a finding of a one centimeter ganglion cyst adjacent to and at the base of the posterior cruciate ligament, incidental finding on MRI, in February 2009; and 5) a June 2012 MRI showing suspected right knee lateral meniscus tear. The examiner noted that the diagnoses or symptoms found in July 1997 and June 2004 had resolved. The quadriceps tendon strain at insertion to proximal patella in 1997 was not followed by subsequent treatment. Regarding the June 2004 right knee sprain, not strain, transient and clearly resolved, the examiner noted that this diagnosis was provided after an acute injury after the Veteran stepped in a hole and hyperextended the right knee. July 2004 radiographs showed normal results in the right knee. The examiner further explained that no peer reviewed medical evidence suggests that a sprain in one knee is due to, the result of, or caused by opposite knee injury of any type. The examiner reiterated that the Veteran's 2004 right knee sprain was not caused or aggravated by any service-connected left knee disorder. Further, there was no current diagnosis of right knee sprain. Regarding present diagnoses, the examiner first started with the diagnosis of right knee osteoarthritis, first confirmed in August 2008 radiographs. The examiner noted that the radiographs showed a relatively unremarkable right knee with mild narrowing of the medial compartment and otherwise subtle degenerative changes. The radiographs in April 2004 showed no abnormality of the right knee, though the same films were interpreted in May 2004 as showing very mild osteoarthritis. The examiner referred to the June 2004 MRI showing no osteoarthritis, noting that the reference to minimal degenerative changes was in reference to minimal increased signal demonstrated at the posterior parts of both menisci not extending to the articular surface. The final finding from the June 2004 MRI was that the presence of any tear in the menisci was not suspected, and the remainder of the examination was normal. The examiner concluded that, based on the formal MRI report, with MRIs capable of detecting very minimal arthritic changes, there was no arthritis in 2004. The examiner then discussed that osteoarthritis was first found in the right knee over 20 years after the Veteran separated from military service. It did not begin in the military, was not related to the military, and was not otherwise causally or etiologically related to service. The examiner explained that osteoarthritis was the most common chronic condition of the joints, affecting approximately 27 million Americans. Factors that contribute to the development of osteoarthritis include genetics, body weight, injury, overuse, and certain bone and joint disorders. Various genetic traits increased the likelihood of osteoarthritis, such as a defect in the production of collagen, inherited defects affecting the way bones fit together, and inherited defects causing rapid cartilage degeneration. The examiner opined that the osteoarthritis of the right knee was not caused by or aggravated by the Veteran's service-connected left knee disorder, to include as a result of altered gait. The examiner noted that there was no peer-reviewed research that proves that any disorder of one knee, including osteoarthritis and limping, causes or aggravates disability of the other knee. Based on this rationale, the examiner opined that right knee osteoarthritis was not causally or etiologically related to service. He also found that right knee osteoarthritis was not caused by or aggravated by the service-connected left knee disorder, to include as a result of the Veteran's altered gait. Moving to the diagnosis of ganglion cyst adjacent to and at the base of the posterior cruciate ligament, diagnosed in February 2009, the examiner noted that the ganglion cyst was more likely than not an incidental finding. The Veteran's symptoms were not suggestive of a base of the posterior cruciate ligament lesion, as a ganglion cyst of the knee very rarely caused pain, even when significantly larger or in more superficial location such as infrapatellar fat pad. The Veteran's ganglion cyst was asymptomatic. Further, opined the examiner, it was significantly less likely as not that the cyst had been present for over 20 years, and it was significantly less likely as not that the cyst was causally or etiologically related to service. The examiner finally opined that the ganglion cyst of the right knee was not caused by or aggravated by his service-connected left knee disorder, to include the resulting altered gait. The examiner explained that there was no peer reviewed data showing that any knee disorder would cause development of a ganglion cyst in the contralateral knee. Last, regarding the suspected right knee lateral meniscus tear in the June 2012 MRI, the examiner noted that the meniscal tear was not definitely present, but he assumed that the Veteran had this diagnosis as the examination was suggestive. The examiner noted that this lateral meniscus tear was first found in the right knee over 20 years after the Veteran left military service. It was not causally or etiologically related to service. The examine further opined that the right knee lateral meniscus tear was not caused or aggravated by the service-connected left knee disorder, to include the resulting altered gait. The examiner noted that if the meniscal tear was a result of "fraying", as it was claimed to have been found in 2004, the tear was related to the acute injury that occurred when the Veteran stepped in a hole and injured his right knee prior to presentation for treatment in 2004. In any event, found the examiner, the right knee meniscus tear was not caused or aggravated by the service-connected left knee disorder, and there was no peer reviewed data showing that any knee disorder would cause the development of a meniscus tear in the contralateral knee. The examiner then addressed those records identified by the Board in the June 2015 remand. Regarding the April 1996 VA examination showing a limp favoring the left knee, the examiner noted that the Veteran had not suffered from a limp consistently since that date. He had been described with normal gait after that time. Further, he would use a cane at times. The examiner acknowledged that there is a common belief that limping caused arthritis to develop on the side not being favored. The examiner noted that this had not been proven by peer-reviewed medical literature. In fact, there were no peer-reviewed studies showing that a limp favoring one knee will cause the opposite knee to develop arthritis or other injury. Regarding the May 2012 statements by Dr. LL and Dr. LM, the examiner first noted that the Veteran was diagnosed with right knee moderate arthrosis in May 2012 by Dr. LM. The doctor had opined that the right knee disability is more likely than not related to the left knee disability due to prolonged altered gait and overcompensating the balance of body weight from the left side to the right side, causing undue wear. The May 2012 opinion from Dr. LL reiterated this opinion. The VA examiner noted that Dr. LL in January 2013 indicated that he had no opinion as to whether the Veteran's right knee disability was secondary to his left knee disability. The examiner noted that the Veteran's representative had explained this omission by asserting that VA Medical Center employees other than compensation and pension physicians were prohibited from providing medical opinions or nexus statements. The examiner refused this argument, explaining that there was no national or medical center directive known to him or to the chief physician stipulating that VA Medical Center employed physicians were prohibited from proving medical opinions. The examiner further noted that Dr. LL and Dr. LM did not provide rationale for their opinions, and upon review of the medical literature, there is no peer-reviewed research found that proves that any disorder of one knee can cause or aggravate a condition in the opposite knee. The Board has conducted a thorough review of the record, to include a review of VA treatment records. While documenting treatment for the Veteran's right knee, they do not otherwise provide pertinent information in the instant claim. The Board finds that service connection is not warranted for a right knee disorder on direct, secondary, or presumptive theories of entitlement. First, there are current right knee diagnoses. The VA examiner in June 2015 identified osteoarthritis, a meniscus tear, and a ganglion cyst. The present disability element of service connection is met. Regarding the presumptive and direct theories of entitlement, the Board notes that service treatment records do not document any right knee event or injury. In addition, the records are otherwise silent for right knee complaints until many years after the Veteran's service. Indeed, at the February 2009 VA examination, the Veteran reported the onset of right knee symptoms as occurring five to six years earlier. The June 2015 VA examiner clearly opined that each present diagnosis did not have onset in service and did not manifest until over 20 years after the Veteran separated from service. His opinions are supported by an extremely detailed and thorough rationale, and the Board accords them significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The preponderance of evidence supports a finding that each diagnosed right knee disorder did not have onset in service and is not otherwise etiologically related to service. Further, the preponderance of evidence is against a finding that right knee arthritis manifested to a compensable degree within one year of the Veteran's separation from active service. The earliest diagnosis of osteoarthritis in the record is from an August 2008 VA X-ray report. The Veteran does not contend that his right knee disorder had onset in service, shortly after service, or is otherwise related to service. Rather, he claims that a right knee disorder is secondarily related to his service-connected left knee disorder. The Board finds that service connection is not warranted on this basis. Simply put, the probative medical evidence of record demonstrates that there is no nexus, whether causation or aggravation, between the Veteran's right knee and left knee disorders. The September 2012 VA examiner cited to there being no peer-reviewed medical literature that supported a causal or aggravating relationship between the contralateral joint and the injured joint. This relationship was discussed in extreme detail in the June 2015 VA opinion. The June 2015 VA examiner provided thorough rationale for his conclusions that osteoarthritis of the right knee, a right knee meniscus tear, and a right knee ganglion cyst were not caused or aggravated by his service-connected left knee disorder. The Board accords the June 2015 VA opinions significant probative weight. Nieves-Rodriguez v. Peake, supra. Based on the June 2015 opinion, the Board finds that the preponderance of the evidence is against a finding that a right knee disorder is proximately due to, the result of, or aggravated by the Veteran's service-connected left knee disorder. In making this finding, the Board has considered the May 2012 opinions by Dr. LL and Dr. LM. However, these opinions are not supported by any rationale. Further, the June 2015 VA examiner, in echoing the September 2012 VA examiner, adequately explained that the peer-reviewed literature simply does not support the May 2012 opinions. Further, the literature submitted by the Veteran and his representative at the April 2015 Board hearing does not change this finding because the June 2015 VA examiner explained thoroughly that the representative's interpretation of the excerpt at the April 2015 Board hearing was incorrect. In making these findings, the Board is cognizant of the Veteran's lay statements that relate his right knee disorder to his service-connected left knee disorder. In this regard, the Board finds that they are not competent as to a nexus. Although it is error to categorically reject a lay person as competent to provide a diagnosis or nexus opinion, not all such questions are subject to non-expert opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a medical opinion depends on the facts of the particular case. "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). But here, the linking of a right knee disorder, which is an internal medical process not capable of lay observation, to a left knee disorder, is clearly distinguishable from ringing in the ears, a broken leg, or varicose veins, all of which are capable of lay observation. See Jandreau, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). As such, the Veteran's lay statements pertaining to these issues are not competent lay evidence. Regardless, the Veteran's assertions are outweighed by the medical evidence of record, which is more probative as it is based upon medical expertise. Accordingly, service connection for a right knee disorder is not warranted. There is no reasonable doubt to be resolved in this matter. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a right knee disorder is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs