Citation Nr: 20023947 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 14-41 108A DATE: April 7, 2020 ORDER Entitlement to service connection for bilateral knee degenerative osteoarthritis is granted. REMANDED Entitlement to a disability rating in excess of 30 percent for left eye extraocular muscle dysfunction with diplopia, status-post surgical revision of orbital fracture, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his bilateral knee degenerative osteoarthritis is at least as likely as not related to active military service. CONCLUSION OF LAW The criteria for service connection for bilateral knee degenerative osteoarthritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1976 to November 1980. During his period of service, he earned the Good Conduct Medal and Expert Rifle Badge (3rd Award). Entitlement to service connection for bilateral knee degenerative osteoarthritis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran contends that he is entitled to service connection for a bilateral knee disability. With respect to the first element of service connection, a current diagnosis, VA treatment records show a diagnosis of osteoarthritis of the bilateral knees. Thus, the current-disability criterion for service connection is met. See Shedden, supra. Next, the Board must consider whether the Veteran sustained a disease or injury in service. Service treatment records show complaints of left knee pain. The Veteran also complained of and was treated for bilateral shin splints. During his January 2018 videoconference hearing, the Veteran testified that he experienced pain in his knees as a result of climbing onto and jumping off of trucks during service. His DD-214 shows that his military occupational specialty (MOS) was automotive mechanic during service. The Veteran is competent to report on his observable symptomatology, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). As climbing onto trucks is consistent with the circumstances of the Veteran’s MOS and service, an in-service injury or event is established. As such, the Veteran has satisfied the second element for service-connection. See Shedden, supra. As to the third element of service connection, medical evidence must establish a nexus between the current bilateral knee disability and the Veteran’s service. A VA medical opinion was obtained in July 2014. The examiner opined that the Veteran’s bilateral knee degenerative osteoarthritis was not caused by or the result of shin splints diagnosed during active military service and shown in the service treatment records. In support of the opinion, the examiner explained that the Veteran was treated for acute knee and shin pain in September and October 1976. The remainder of the service treatment records were silent for diagnosis of or treatment for chronic disability with regard to the knees or shins. The examiner indicated that the condition was acute and transitory, and resolved without residual. The examiner noted that there the medical records were silent for treatment between the Veteran’s in-service treatment for shin splints in September and October 1976 and his current medical care for bilateral knee degenerative osteoarthritis. The examiner explained that the Veteran’s bilateral knee degenerative osteoarthritis was consistent with the normal aging process and was a stand-alone entity, neither due to nor aggravated by his in-service treatment for acute shin splints. A private nexus opinion was associated with the Veteran’s claims file in May 2018. Dr. M. R. opined that the Veteran’s bilateral knee osteoarthritis was as most likely caused by or a result of service. In support of his opinion, the physician explained that the Veteran reported frequent lifting of tires, engine parts, and tools as essential job tasks. The Veteran also reported frequent jumping and climbing off and on vehicles. The physician cited literature which suggested moderate evidence for an increased risk of osteoarthritis with combined heavy lifting, kneeling, and squatting. The Veteran also reported approximately 3,000 miles of running in addition to that required for physical training. Though he observed that the literature was scarce as to whether the running intensity and volume demands of Marine Corps service was consistent with competitive levels, the examiner cited literature which suggested an increased risk for knee osteoarthritis in competitive runners. Based on the cited literature and his professional judgment, the physician indicated that he would strongly consider the Veteran’s history of occupation demand and physical training during service as contributing to his currently diagnosed osteoarthritis. With regard to the final element of the Shedden analysis, the nexus element, the Board finds that the evidence is at least in equipoise as to whether this element is satisfied. The Board acknowledges the negative nexus opinion provided by the July 2014 VA examiner; however, the Board finds the opinion to be inadequate for adjudication purposes. In this regard, the rationale for the negative nexus opinion appears to be based on the lack of contemporaneous treatment records, without adequate consideration of the Veteran’s lay statements regarding continuity of bilateral knee symptomatology since service, thus rendering it of little probative value. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (lack of documented findings is not an adequate basis for a negative opinion). The Board does, however, find the May 2018 private opinion to be of more probative value, as the physician possesses the necessary education, training, and expertise to provide the opinion. Additionally, the opinion is also shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran’s bilateral knee osteoarthritis was related to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”) As such, the benefit of the doubt will be conferred in the Veteran’s favor, and his claim for service connection for bilateral knee osteoarthritis is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Entitlement to a higher rating for left eye extraocular muscle dysfunction with diplopia, status-post surgical revision of orbital fracture Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) (2019) in the first instance, the Board still must consider whether the case should be referred to the Director of Compensation Service. During the Veteran’s April 2019 VA eye conditions examination, the examiner noted constant diplopia from 21 to 30 degrees up, down, and lateral. The diplopia was not correctable with standard spectacle correction. The examiner explained that the Veteran’s eye disability affected his near visual acuity by causing restrictive movements when looking at near objects. The examiner noted that the Veteran’s eye injury resulted in a hypoglobus appearance to his left eye. Other pertinent findings included constant epiphora due to lagophthalmus more than normal and trichiasis due to an inward turning of lashes. The Veteran reported discomfort from the lashes and indicated that they constantly need to be removed. The Veteran stated that he was informed of his inability to undergo additional eye surgeries due to his fascia being too thin. At the time of his January 2018 videoconference hearing, the Veteran reported that his diplopia has interfered with his ability to work. The Board finds that the Veteran’s disability picture for his left eye disability is not contemplated by the schedular criteria and other related factors, such as those provided by the regulation as “governing norms,” are present. As such, referral for extraschedular consideration is warranted. See 38 C.F.R. § 3.321(b); see also Thun v. Peake, 22 Vet. App. 111 (2008). The matter is REMANDED for the following action: 1. 1. Refer the Veteran’s claim of entitlement to a disability rating in excess of 30 percent for left eye extraocular muscle dysfunction with diplopia, status-post surgical revision of orbital fracture, to VA’s Director of Compensation Service for extraschedular consideration in accordance with 38 C.F.R. § 3.321(b)(1). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Joseph, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.