Citation Nr: 1815404 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 13-19 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disorder, to include osteochondritis dissecans. 2. Entitlement to service connection for a right knee disorder, to include osteochondritis dissecans. 3. Entitlement to service connection for a left knee disorder, to include as secondary to a right knee condition. 4. Entitlement to service connection for a bilateral hip disorder, including trochanter bursitis, to include as secondary to a right knee condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service from July 1975 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the Indianapolis, Indiana Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to service connection for right knee and left knee disorders, as well as a bilateral hip disorder. In September 2017, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). FINDINGS OF FACT 1. In a November 1977 decision, the RO denied service connection for osteochondritis dissecans of the right knee. The Veteran did not file an appeal, and the decision is final. 2. Evidence associated with the claims file subsequent to the November 1977 decision is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim. 3. The Veteran's osteochondritis of the right knee, is a congenital or development disease. 4. The Veteran's pre-existing osteochondritis, right knee, did not increased in severity beyond the normal progress of the disorder during active service, not is it attributable to service or any incident in service to include performing duties as a security policeman and/or his reported motor vehicle accident. 5. The Veteran's right knee osteoarthritis and right total knee replacement are not attributable to service or any incident in service to include performing duties as a security policeman and/or his reported motor vehicle accident. 6. The Veteran's left knee disorder did not have an onset in service, nor is it otherwise related to active service or to a service-connected disability. 7. The Veteran's trochanter bursitis of the hips, did not have its onset in service, nor is it otherwise related to active service or to a service-connected disability. CONCLUSIONS OF LAW 1. A November 1977 decision denying service connection for osteochondritis dissecans of the right knee is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. Evidence received since the November 1977 decision is new and material to reopen a claim of service connection for a right knee disorder, to osteochondritis dissecans. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017). 3. The Veteran's osteochondritis dissecans of the right knee pre-existed his period of active service and was not aggravated during active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306 (2017). 4. The Veteran's osteoarthritis of the right knee and right total knee replacement, were not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303 (2017). 5. A left knee disorder was not incurred in or aggravated by service, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.310 (2017). 6. Trochanter bursitis of the bilateral hips, was not incurred in or aggravated by service, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. For the issues decided herein, VA provided adequate notice in a letter sent to the Veteran in March 2010. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. VA has obtained all identified and available service and post-service treatment records for the Veteran, VA examinations were conducted, and a VHA opinion was procured. It appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained, and neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. Neither the Veteran nor his representative 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). In summary, the Board finds that appellate review may proceed without prejudice to the Veteran with respect to his claims. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Application to Reopen a Claim of Service Connection for a Right Knee Disorder Generally, a claim which has been denied and become final may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a November 1977 decision, the RO denied entitlement to service connection for osteochondritis dissecans of the right knee. The Veteran did not appeal from that decision, and it remains final. To the extent that his current claim of service connection for a right knee disorder to, include osteochondritis dissecans, represents an effort to reopen the previously denied claim, the Board finds that new and material evidence has been added to the claims file, and the claim is reopened. III. Factual Background Service treatment records (STRs) show normal findings for the lower extremities during the Veteran's February 1975 enlistment examination. At that time, the Veteran denied having, or having had, a trick or locked knee. In April 1977, the Veteran complained of right knee pain. He was placed in a cylinder cast for four weeks without improvement. In May 1977, a medical board examination was recommended. The Veteran was diagnosed with osteochondritis dissecans of the right knee, lateral femoral condyle and he was deemed unqualified for worldwide duty. In the June 1977 medical board report, it was concluded that his condition was not-incurred in service but existed prior to service and was not permanently aggravated by service. It was noted that the Veteran reported that during high school he had problems with his knee swelling up after wrestling meets. In a June 1977 findings and recommended disposition report, however, it was checked yes in the box that stated "the disability was incurred while entitled to receive basic pay." It was also checked that there was a degree of permanent aggravation of 10 percent. On a VA examination in October 1977, the Veteran was diagnosed was osteochondritis dissecans of the right side. The Veteran denied ever being operated on, and the examiner indicated there was an absence of any traumatic or surgical scar of the right knee. A private medical report revealed that in February 1999, the Veteran underwent right total knee arthroplasty, and the preoperative diagnosis was right knee osteoarthritis. It was noted that the Veteran underwent a previous procedure for operative intervention and fixation of an osteochondritic lesion, which failed, and he subsequently underwent removal, and that since that time he developed a significant amount of osteoarthritis. On a VA examination in November 2010, the Veteran reported that he injured his right knee in a motor vehicle accident off base and that his left knee overcompensates for his right knee. The diagnoses included right knee osteochondritis dissecans old avulsion and surgical replacement with total joint prosthesis. In a March 2011 addendum, the VA examiner noted that the Veteran was in a motor vehicle accident with injury to his right knee while on active duty and that subsequently a diagnosis of osteochondritis dissecans was made. Eventually, the Veteran developed arthritis in the right knee and underwent a total knee replacement. The VA examiner stated that the question was whether or not the Veteran had an aggravated service-connected injury and whether or not the total knee replacement was a result of this or a result of natural causes. As extra evidence prior to his knee surgery was not available, the VA examiner found that it would be speculation on his part that the right knee surgery was from osteochondritis/ degenerative arthritis. Furthermore, the examiner noted that the Veteran also had osteochondritis dissecans in the left knee and that it was a developmental disorder. On an August 2011 VA examination, osteochondritis of the right knee was diagnosed. The VA examiner noted that the Veteran has a history of both a knee injury and osteochondritis of the right knee. The examiner could not determine, however, which of these is the proximate cause of the Veteran's knee condition without resorting to mere speculation. On an August 2014 VA examination, the diagnosis was osteoarthritis of the right knee status post total knee arthroplasty, onset in 1998. The VA examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. The VA examiner reasoned that the Veteran suffered a right knee injury prior to military service which required surgical intervention (meniscectomy). The examiner also found that osteoarthritis was an expected outcome of meniscectomy, and opined that the Veteran's right knee osteoarthritis, which had a total knee arthroplasty done in 1998 and which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by the physical demands of his security policeman MOS. In an opinion from the Veterans Health Administration (VHA), dated in November 2017, the examiner indicated that osteochondritis dissecans is a condition where a small portion of bone under articular cartilage dies, and that this occurred in the knee but also other bones such as the talus in the ankle. The examiner noted that bone was a living tissue with living cells with a blood supply and that these cells made more bone. The examiner noted that the cause of the bone death was unknown, and that when the underlying bone died the articular cartilage can cave in or the whole thing can break loose into the joint, and that this can take some time (months) before this happened and the patient became symptomatic. The examiner noted that the joint was supposed to be smooth and this irregular surface caused the joint to wear out (osteoarthritis), that the onset was usually between ages 10 and 20 years of age, and that this was a bad problem and there was no cure for it. The examiner indicated that there were several surgical procedures for this, including drilling the bone in the hope of it vascularizing the bone, simply removing loose fragments, bone grafting, and research now involving stem cells. The examiner noted that a review of these various treatments was reported in the 2013 Journal of Bone and Joint Surgery and no other treatment was found to give a better outcome than the other, which the examiner noted was another indication that it is a bad problem and treatment helps, but none were outstanding. The examiner indicated that the Veteran developed osteochondritis dissecans of both knees and even though the exact cause of death of the bone was unknown, some people had an increased risk of developing this than others, suggesting a genetic predisposition, and that putting this in the congenital category would be appropriate. The examiner opined that with the Veteran's right knee problems developing in high school, this problem more likely than not occurred before his time in the service. The examiner opined that the Veteran's time or activity in service did not exacerbate or contribute to the natural progression of the condition. The examiner also opined that the Veteran's subsequent problems, including osteoarthritis and total knee replacement were more likely than not from the osteochondritis dissecans and not related to or made worse by his time in the service, including the Veteran's activities as a security policeman and/or his reported motor vehicle accident in the service. IV. Analysis Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain "chronic" diseases, such as arthritis, may also be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for diseases (but not defects) of congenital, developmental, or familial origin. In such cases, service connection is warranted if the evidence as a whole establishes that the familial conditions in question were incurred or aggravated during service within the meaning of VA law and regulations. Specifically, when diseases of congenital, developmental, or familial origin become the basis for a claim for service connection of a disability, such disease, by its very nature, is ordinarily justified in being found to have preexisted the claimant's military service. Typically in such cases, entitlement to service connection should turn on the question of whether manifestations of the disease in service constituted "aggravation" of the condition. That particular question must be resolved by applying the same stringent legal standards which are applicable in cases involving acquired disabilities. See VAOPGCPREC 82-90 (July 18, 1990); see also 38 C.F.R. § 3.306. A pre-existing injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306 (b). 1. Right Knee Disability The Veteran claims that his osteochondritis dissecans of the right knee was caused by service, reporting that during service, he worked as a security policeman, which required walking and guarding aircrafts for eight hours a day. He has denied having any right knee problems prior to service, however, the record shows that his report regarding the onset of his knee problems has been inconsistent. Review of the competent medical evidence of record shows that the Veteran has a current right knee disability, to include osteochondritis dissecans and osteoarthritis. STRs show he was treated for right knee pain, and that he was discharged from service due to his right knee condition, diagnosed as osteochondritis dissecans. With regard to whether the Veteran has a right knee condition that existed prior to service, or had an onset in service, or is otherwise related to service, the Board notes that there are several VA examinations of record, none of which adequately addressed the issues before the Board. In light of the conflicting medical opinions, in September 2017, the Board requested a specialist medical opinion from the Veterans Health Administration (VHA) for the issue on appeal. See 38 C.F.R. § 20.901 (a). The Board requested that the VHA opinion address the following questions: (1) whether osteochondritis dissecans constitutes a congenital or developmental defect and, if so, whether the Veteran incurred a superimposed injury to the right knee in service attributable to service or any incident in service to include performing duties as a security policeman and/or his reported motor vehicle accident during service; (2) if osteochondritis dissecans constitutes a congenital or developmental disease, whether such disorder clearly and unmistakably existed prior to the Veteran's period of service and, if so, whether it clearly and unmistakably was not aggravated beyond the normal progress of the disorder during active service attributable to service or any incident in service to include performing duties as a security policeman and/or his reported motor vehicle accident during service; 3) whether it is at least as likely as not that any other right knee disability independent of osteochondritis dissecans (including osteoarthritis) is attributable to service or any incident in service to include performing duties as a security policeman and/or his reported motor vehicle accident. The Board noted that the Veteran's description of pre-service events and symptoms in the June 1977 medical board report is his most credible recollection of events, and that the examiner should also accept as true that the Veteran was in a motor vehicle accident with injury to his right knee while on active duty even though not documented. In reviewing the foregoing competent evidence, the Board notes that the November 2017 VHA opinion was based on a complete review of the record, to include addressing the conflicting medical opinions of record as well as supporting medical literature, and included an explanation for the opinions rendered. The Board finds that the VHA opinion is more probative and persuasive on the questions regarding the nature and etiology of the Veteran's right knee conditions. In that regard, the VHA examiner concluded that the Veteran's osteochondritis dissecans was a congenital disease that developed prior to service, and opined the Veteran's time and activity in service, to include his duties as a security policeman and/or his reported motor vehicle accident, did not exacerbate or contribute to the natural progression of the condition. The VHA examiner also opined that the Veteran's osteoarthritis of the right knee and right total knee replacement resulted from the osteochondritis dissecans, and were not related to or made worse by his time in the service, including his duties as a security policeman and/or his reported motor vehicle accident in the service. The Board, after having carefully reviewed the record, and weighing the evidence both in support of and against the claim, finds that the most probative and persuasive medical evidence is against the Veteran's claim for service connection for a right knee condition, to include osteochondritis dissecans, osteoarthritis, and total right knee replacement. Thus, entitlement to service connection for a right knee disorder must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Left Knee Condition and Trochanter Bursitis, Bilateral Hips Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a` service-connected disease or injury. 38 C.F.R. § 3.310(a). The Veteran contends that that he has a left knee condition and bilateral hip condition that are related to his right knee condition. A current left knee disability and a current bilateral hip disability have been shown by the competent medical evidence of record. However, as explained above, service connection has not been granted for a right knee condition, thus service connection may not be granted on a secondary basis. With regard to direct service connection, the Board notes that STRs are silent for any report or finding of a left knee or bilateral hip condition. What is missing is competent medical evidence of a link between the Veteran's left knee disability and service and his bilateral knee disability and service. Additionally, there is no indication in the record of how a current left knee condition or bilateral hip condition may be associated with service, thus, VA examinations on this are not warranted or necessary. Accordingly, service connection for a left knee back and for a bilateral hip condition, on a direct basis, is not warranted. Notably, the Veteran has not claimed that his left knee condition or a bilateral hip condition are related to any incident in service, rather, he contends that these conditions occurred because of his right knee disability. The preponderance of the evidence is therefore against the claims, on both a direct basis and as secondary to service-connected disability. The benefit-of-the-doubt rule does not apply, and the claims for service connection for a left knee condition and for a bilateral hip condition must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER New and material evidence having been received, the application to reopen service connection for a right knee disorder, to include osteochondritis dissecans, is granted. Service connection for a right knee disorder, to include osteochondritis dissecans, is denied. Service connection for a left knee disorder is denied. Service connection for a bilateral hip disorder, to include trochanter bursitis of the hips, is denied. ____________________________________________ J. Schulman Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs