Citation Nr: 1817882 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 17-41 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to the service-connected pes planus. 2. Entitlement to service connection for a right knee disability, to include as secondary to the service-connected pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1958 to July 1962. This matter came before the Board of Veterans Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veteran's Law Judge during a November 2017 Travel Board hearing. The transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's left and right knee disabilities were caused by his service-connected bilateral pes planus. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1157, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310(a) (2017). 2. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 1157, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS A full grant of benefits sought on appeal is granted herein. As such, the Board finds that any error related to the VCAA with regard to the issue on appeal is moot. See 38 U.S.C. § 5103, 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 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. § 1110; 38 C.F.R. § 3.303(a). Secondary service connection may be granted for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For benefits to be denied, "the preponderance of the evidence must be against the claim." Id. at 54. In the present case, the Veteran contends that his left and right knee disabilities are caused or aggravated by his service-connected bilateral pes planus, and does not contend that he is entitled to direct service connection. The Board will therefore consider whether he is entitled to service contention on a secondary basis. First, the Board finds that the Veteran has current left and right knee disabilities. The July 2016 VA examination notes bilateral knee osteoarthritis with total knee arthroscopy on both knees. Second, the Board notes that the Veteran is service-connected for bilateral pes planus. The Veteran had a VA examination in July 2016. The examiner was asked to opine whether the Veteran's right knee condition was secondary to his service-connected bilateral pes planus. No opinion was requested regarding the Veteran's left knee disability and the Board notes that the opinion is specific to the right knee. In rendering an opinion on the right knee, the July 2016 examiner noted the Veteran's contentions that he had knee problems for many years and that both knee disabilities were caused by his severe bilateral pes planus. The examiner found that the Veteran's knee disability was less likely caused by his service-connected disability. As a rationale, the examiner stated that literature showed that older adults with flat feet are more likely to report knee pain, but that articles do not link pes planus directly to knee osteoarthritis. The examiner concluded that because there was a paucity of medical literature showing pes planus as etiology, and because aging is the most common cause of osteoarthritis and Veteran is over 70 years old and service treatment records are silent for knee complaints, it is less likely that the right knee is secondary to or aggravated by SC pes planus. The Board notes that while the examiner found that there was no aggravation, the associated rationale deals solely with causation, not aggravation. As the examiner did not provide a proper rationale regarding aggravation, the opinion regarding the right knee is inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran submitted a March 2016 letter from his private physician. The letter notes that total knee arthroplasty was being discussed as the Veteran had gross varus internal rotation deformity, crepitus and effusion. The physician noted that the Veteran has severe pes planus bilaterally and in his opinion the pes planus is most likely contributing to his knee pain. The private provider submitted a supplemental statement in August 2017, which noted that he had reviewed the Veteran's treatment records since separation from service and found that the Veteran's degenerative joint disease was likely caused by his feet. The statement was partly illegible, so a clarifying statement from the provider was submitted in December 2017. This offered as an opinion on causation that the Veteran's hyperpronation of the feet is extreme flat foot, which causes varus (bow-leggedness of the knees), which puts pressure on the inner compartments, which causes osteoarthritis. The letter then states that the cause is the nature of his foot causing the knee disability. At the outset, the Board finds that the opinions provided by the Veteran's private provider in his March 2016 and, August and December 2017 letters, taken as a whole, are adequate for appellate review. There is no evidence that the private provider was not competent or credible, and as the reports are based on review of the Veteran's medical records, in-person examinations and the examiners' observations and provide a clear rationale, the Board finds they are entitled to significant probative weight with respect to the etiology of the Veteran's knee disabilities. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008). The Board also notes that the private provider's statements regarding hyperpronation of the Veteran's feet are consistent with the evidence of record regarding the severity of the Veteran's service-connected bilateral pes planus, including the February 2016 rating decision that found marked pronation associated with pes planus. The Veteran testified at his November 2017 Travel Board hearing that he had knee replacement on both knees (his left in September 2004 and his right in May 2016) and that his provider told him that his flat feet were likely contributing to his knee pain. The Veteran also submitted a statement in August 2017 that his knees started bothering him in his mid-30s, long before he reached 70 years old. The Board notes that while the Veteran is not competent to provide an etiological opinion, the Veteran is competent to attest to the onset of his knee pain. Clyburn v. West, 12 Vet. App. 296, 301 (1999) (veteran is competent to testify regarding continuous knee pain since service). The Board therefore accords his statements regarding the onset of his symptoms significant probative weight. As the July 2016 VA opinion regarding the right knee has been found to be inadequate and no VA opinion was provided regarding the left knee, the Board is left with a single competent medical opinion of record providing an analysis of the relationship between the Veteran's service connected bilateral pes planus and his current left and right knee disabilities, the opinion provided by the Veteran's private doctor in his March 2016 and August and December 2017 letters. The Board therefore finds that the competent medical evidence of record indicates that the Veteran's left and right knee disabilities were caused by his service-connected bilateral pes planus and that service connection for left and right knee disabilities is warranted. 38 C.F.R. § 3.310(a). ORDER Service connection for a left knee disability, secondary to service-connected bilateral pes planus, is granted. Service connection for a right knee disability, secondary to service-connected bilateral pes planus, is granted. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs