Citation Nr: 20052167 Decision Date: 08/06/20 Archive Date: 08/06/20 DOCKET NO. 12-27 731 DATE: August 6, 2020 ORDER Entitlement to service connection for bilateral knee disabilities, diagnosed as degenerative arthritis and residuals of total arthroplasty of the knees, is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's bilateral knee disabilities, diagnosed as degenerative arthritis and residuals of total arthroplasty of the knees, are related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral knee disabilities, diagnosed as degenerative arthritis and residuals of total arthroplasty of the knees, have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1966 to January 1970, which included service in the Republic of Vietnam. The Veteran’s military awards include the Combat Action Ribbon and the Purple Heart. This matter comes to the Board of Veterans’ Appeals (Board) on an appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, the Agency of Original Jurisdiction (AOJ). The December 2011 rating decision denied the Veteran’s claims for service connection for bilateral knee disorder and right foot disorder. A December 2014 Board decision denied the Veteran’s claims for service connection for bilateral knee and right foot disabilities. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) in March 2015. In October 2015, the Court granted a Joint Motion for Remand (JMR) which vacated the December 2014 Board decision and remanded the Veteran’s claim for compliance with the terms of the JMR. The terms of the JMR and the subsequent actions of the Board and the AOJ will be discussed below. This claim was again before the Board in September 2017, when it was remanded for further development, to include affording the Veteran new VA examinations. The Board notes that a January 2018 rating decision granted the Veteran’s claim for service connection for a right foot disability. As this is a full grant of benefits on appeal, the issue is no longer before the Board. This matter was most recently before the Board in March 2018 when it was remanded for a VA examination and opinion. The Board’s directives and the subsequent actions of the AOJ will be discussed below. The claim has now returned to the Board for further appellate consideration. 1. Entitlement to service connection for a bilateral knee disorder Generally, to establish service connection for a claimed disability, three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. Service connection for a disability can be granted on a secondary basis if a Veteran has a (1) current disability, (2) a separate disability already subject to service connection, and (3) the first disability is proximately due to or the result of OR aggravated beyond its natural progress by the service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Analysis The Veteran filed a claim for service connection for a right and left knee injury and a right foot injury on November 22, 2011. The Veteran has asserted that his bilateral knee disorder and right foot disorder were caused by or aggravated by his service as an ammunition technician stateside and in Vietnam. The Veteran’s right foot injury was service connected in a January 2018 rating decision. In March 2018, the Veteran asserted that his bilateral knee disorder was caused by or aggravated by his service-connected right foot disability. As such, the Board’s analysis will focus on the theories of direct and secondary service connection. The Veteran’s service treatment records do not show any complaints, treatment, or diagnoses related to the knees. The Veteran was diagnosed with arthritis of both knees in October 2005, bilateral osteoarthritis in August 2010, and underwent knee replacement surgeries in January 2012, thereby meeting the first element required to establish entitlement to service connection, a current diagnosis. As noted above, following the Board’s December 2014 decision denying service connection for a bilateral knee disorder and right foot disorder, the Court granted the parties’ JMR, vacating the Board’s decision and remanding for further action in accordance with the terms of the JMR. In the JMR, the parties agreed that remand was necessary because the December 2014 Board decision failed, in pertinent part, to provide an adequate statement of reasons or bases in its evaluation of whether service connection was warranted for the Veteran’s bilateral knee disability in that the Board did not properly consider and apply relevant law and evidence related to the underlying claim. The parties agreed that the Board needed to provide an adequate statement of reasons or bases that included consideration of the complete evidence of record, including the February 2005 notation of knee pain. In addition, the parties agreed that the Board should also provide an adequate analysis of the credibility of the Veteran’s lay statements of continuity of symptomatology. See Thompson v. Gober, 14 Vet. App. 187, 188 (2000). (holding the Board must provide an adequate statement of reasons or bases “for its rejection of any material evidence favorable to the claimant”). The Board subsequently remanded to the AOJ in December 2015 to afford the Veteran a VA examination and opinion addressing the relationship, if any, between the Veteran’s bilateral knee disorder and his military service. The subsequent VA examination conducted in April 2016 found that the Veteran’s bilateral knee disorder was less likely than not related to his military service. However, the Board’s decision in September 2017 found the examination was inadequate and remanded for a new examination and for compliance with the 2015 JMR terms. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007). In addition, the Board found that when the Veteran has provided lay testimony of an in-service event, an examiner cannot ignore that lay evidence and base his or her opinion that there is no nexus to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Also, compliance with the remand orders of the Board was required. Stegall v. West, 11 Vet. App. 268, 271(1998). In its decision, the Board also noted that, during the 2016 VA examination, the Veteran attributed his bilateral knee problems to injuries sustained in September 1967 when an “ammo dump” he was working in was under artillery fire. He was unclear on how the injury to the knees occurred in this incident. The Veteran described that he had suffered from intermittent bilateral knee pain since his service. The Veteran was diagnosed with status post total knee replacement, bilaterally, with knee joint osteoarthritis. In its decision, the Board found that the 2016 VA examiner’s opinion rested on the finding that there was no objective evidence of in-service or post-service knee conditions until many years after service and the Veteran’s statements regarding knee symptom onset being vague. However, the Board found that the Veteran’s statements that he has suffered from knee pain since service, and that his knees became consistently painful in the early 2000s, were not ambiguous. His statements established a clear timeline of symptomatology to be addressed on remand. The Board found that the record was not adequate to impeach the Veteran’s lay statements regarding the onset and continuous presence of knee symptoms since his service, a fact noted by the parties to the October 2015 JMR. See Dalton, supra. The Veteran was afforded a VA examination in November 2017. The Veteran denied knee issues prior to military service. He stated that he was deployed o Vietnam for 13 months. He stated he worked at an ammunition storage facility in Dong Ha, Vietnam. The Veteran stated that he injured both knees and his right foot when the “ammo dump came under fire.” He reported that he ran to “find any cover we could,” and while doing so ran into boxes of ammo and equipment, “you’d get tangled up and fall, then get up and run.” He stated that he was running and tripping on uneven ground trying to get to a foxhole “to get below ground.” He was wearing a helmet and flak vest, and combat boots and reported “We did not have safety boots back then.” The Veteran reported that eventually he was able to crawl into a foxhole where he remained for “…eight hours under fire and we were tossed around in the foxhole due to explosions. My helmet blew off and I saw another guy wearing it later.” He stated that “the entire ammo dump went up, when we came out, there were holes you could burn a house in.” The Veteran reported that “something fell on my right foot and later I found it had a broken a bone.” The Veteran reported that he did not seek medical evaluation in Vietnam for either his knees or foot "I was young, you just kept on, you did your duty." He stated that he lost everything he owned in the explosions except the clothes on his back "I had to borrow clothes until I got new ones reissued, our living area was demolished." He stated that they rebuilt the ammo dump in a horseshoe shape and it was hit again in June 1968. After release from military service the Veteran was a farmer in North Dakota until he retired in 2012. He denied injury to his knees or right foot while farming. Veteran stated he was married in July 1970. The Veteran stated his knees bothered "on and off since I got out of the service." He stated that his knees progressively worsened and he eventually sought medical evaluation at the Fargo VA. No other medical evaluations are available for his knees or right foot (other than the VA). Imaging films, bilateral knees, taken on 7/13/2006, show degenerative changes in both knees. The Veteran stated that he was seen by orthopedics, and had Synvisc injections that provided no improvement of knee discomfort. He also tried braces. He ultimately underwent right and left total knee arthroplasty in 2012. He reported improvement of bad knee discomfort, but still has some knee discomfort. Currently, his right knee discomfort is greater than left knee. At baseline, he rates discomfort as 4/10, with increase to 6-7/10 with aggravation. He stated that he takes Aleve, uses cane or walker about once a month when either foot or knees are aggravated. Aggravating factors include: extended standing; extended sitting, stated first steps after sitting "are painful, then gets better with movement;" reported some stiffness; with extended walking, complains of aching after 30 minutes and has to rest; ambulation on uneven ground; ambulation on hard surfaces, like concrete; unable to run; avoids kneeling & squatting – as it is hard "to get up and down." He reported occasional swelling, no locking or falls. In last 12 months he stated there were "a few times" where knees had increased discomfort and he did not go out of his home for the day and” just sat in the recliner.” The November 2017 examiner provided a positive opinion for the Veteran’s right foot disorder, finding that the Veteran’s right foot disorder is at least as likely as not due to or incurred from his reported right foot injury in 1967.” The examiner found the Veteran “credible to give statements regarding this event while in military service.” The examiner noted that in 2010, the Veteran complained of right foot discomfort and imaging films showed degenerative changes most likely consistent with a previous injury to his foot. The examiner found that “No other mechanism can likely account for the degenerative changes and exostosis of the Veteran’s right foot.” The examiner provided a negative opinion for the Veteran’s bilateral knee disorder, finding it was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner found the Veteran credible to give report of his claimed knee injuries in 1967, however his service treatment records are silent for complaints of knee discomfort. Further, his medical records are silent for complaints of knee discomfort until 2005. In addition, the examiner found that after service from 1970 to 2012, the Veteran was engaged in farming, a physically strenuous activity that can contribute to the “development of wear and tear of the joints.” A March 2018 Board decision found the 2017 VA examination inadequate and remanded for a new examination and opinion that discussed the Veteran’s statements regarding the onset of his bilateral knee disabilities and the continuous presence of knee symptoms since his discharge. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board found the 2017 examiner did not specifically address the Veteran’s contentions that his knee pain began in service and has bothered him on and off ever since, which establishes continuity of symptomatology. Additionally, while the Veteran reported that he worked as a farmer, and farming can be considered a physically strenuous activity, the Veteran specifically reported that he did not have an injury to his knees while farming and therefore, the examiner’s opinion is not supported by an adequate rationale. The Board noted that in a March 2018 Informal Hearing Presentation, the Veteran’s representative asserted that his bilateral knee disability is also a consequence of his service-connected disability. Accordingly, an opinion was required to determine whether or not the Veteran’s bilateral knee disability is either caused or aggravated by the Veteran’s now service-connected right foot disability. The Board’s remand directives specifically advised that the Veteran is competent to report injuries and symptoms to include the onset in-service and continuing symptoms after discharge, and the Veteran’s reports must be considered and discussed in formulating the requested opinions. If his reports are discounted, the examiner should provide an explanation for doing so. The Veteran’s statements may not be discounted solely on the basis of the lack of confirmation in the medical records. The Veteran was afforded a VA examination in June 2020. The examiner noted diagnoses of bilateral degenerative arthritis and status post total knee arthroplasty. The 2020 examiner noted that the Veteran served in the Marine Corps from January 1966 to January 1970. After service, he worked as a farmer; developed severe bilateral knee osteoarthritis (diagnosed in 2005) and underwent bilateral total knee arthroplasties in January 2012. The Veteran claimed direct service connection for his bilateral knee osteoarthritis and bilateral knee osteoarthritis secondary to his service-connected right foot degenerative arthritis. The Veteran attributed his bilateral knee condition to injuries sustained to his knees and right foot during an artillery attack in Vietnam in September 1967. He described running and tripping on uneven ground while evading fire. He reported no specific injury and described chronic pain in his knees and right foot following that in-service event. He denied reporting injuries during service and his service treatment records are silent for knee or foot disorders/evaluations. The Veteran described persistent pain since the in-service event. He stated he believes his altered gait resulted from his right foot injury and contributed to his bilateral knee osteoarthritis. As to direct service connection, the examiner opined that the Veteran’s bilateral knee disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized this opinion by noting that the Veteran's service treatment records do not document a medical encounter or treatment of a knee condition while in-service. Additionally, the claims file does not document that a knee condition developed to a compensable degree within 12 months of release from active service. The examiner found a nexus could not be established. As to service connection secondary to service-connected right foot disability, the examiner opined that the Veteran’s bilateral knee disorder was less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service-connected disability. The examiner’s rationale was that there is no clear evidence from review of orthopedic literature (Wheeless' Textbook of Orthopedics) to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5 cm so that the individuals gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. The examiner found this level of severity was not supported based on record review, history or exam. It is not unusual for two joints to share properties in the same person, but one joint's disease does not 'spread' to another or cause damage to it. (Oxford's Textbook on Orthopedics and Trauma.) Thus, the examiner found no clear evidence to support an injury to one joint (in this instance, the right foot) having any significant impact on another joint (right & left knees). Additionally, the examiner noted the primary risk factors for knee osteoarthritis are obesity, previous knee trauma (repetitive use, heavy occupational use, etc.), obesity and older age. Based on the Veteran's civilian occupation and his age at diagnosis of bilateral knee osteoarthritis, it is likely that the progression of this condition is separate and unrelated to his service-connected foot condition. The Board finds that, regrettably, the 2020 examiner, like the prior examiners, continued to afford little or no weight to the Veteran’s lay testimony regarding his claimed in-service combat-related event in relation to his bilateral knee disorder. The 2017 examiner noted that an internet search indicates that a significant ammo dump explosion at Dong Ha in 1967. The examiner found the Veteran credible to give statements regarding this event while in military service. The Veteran’s MOS and service records support his statements. In granting the JMR, the Court provided guidance as to the lay statement credibility determinations, as did the Board in its 2018 decision. Thus, it is clear that the examiner continued to rely on the absence of corroboration of the Veteran’s statements to deny service connection for the Veteran’s bilateral knee disorder, while granting service connection for the Veteran’s right foot disorder with no corroborating service treatment records as to that disorder. These two opinions were based on the same claimed in-service event and the examiner found the Veteran’s lay testimony credible as to that event. The Veteran’s MOS and service records support his statements. While the Board could again remand pursuant to Stegall v. West, 11 Vet. App. 268 (1998), the Board finds that in the present case, a remand to obtain a more adequate and complete nexus opinion amounts to avoidable delay without benefit to the Veteran, which the Court has advised is to be avoided. Soyini v. Derwinski, 1 Vet. App. 540 (1991). Simply put, the Board is able to decide the merits of this appeal based upon a review of the evidence of record. The Board finds that the Veteran’s lay statements as to the etiology of his bilateral knee disorder are competent and credible in that those statements are supported by the circumstances of his service and by his service medals to include a Purple Heart and Combat Action Ribbon. In cases where a Veteran has asserted service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d), ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). The United States Court of Appeals for the Federal Circuit has held that in the case of a combat Veteran, not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id.38 U.S.C. § 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d) ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). The United States Court of Appeals for the Federal Circuit has held that in the case of a combat Veteran, not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). Therefore, as the Veteran’s lay evidence is consistent with the circumstances, conditions, or hardships of his service, the Veteran’s lay testimony is sufficient to meet the second element required to establish service connection, an in-service incurrence. The Board also notes that the VA examiner found the Veteran credible to relate the combat-related event. The final element required to establish service connection is a causal relationship between the current disability and the combat injury. Here, in granting service connection for the Veteran’s right foot disability, based on the VA examination, the RO found that the Veteran’s right foot injury was documented in November 2010 with an assessment noting the disorder as “probably post traumatic arthritis.” Establishing service connection for “post traumatic arthritis” requires a finding that the Veteran’s claimed disorder was caused by or aggravated by in-service trauma, and the only trauma related by the Veteran was the same combat-related incident that formed the basis of his bilateral knee disorder claim. The Board further notes that the 2020 examiner found the primary risk factors for knee osteoarthritis includes previous knee trauma. The Board also notes that the Veteran reported his bilateral knee pain in 2005, five years prior to reporting his right foot injury. The Board finds the reasoning provided in the JMR and the Board’s 2018 remand decision instructive not only to service-connect the Veteran’s right foot disability, but also to service-connect the Veteran’s bilateral knee disorder. As noted in the JMR, the Board previously found that the long period without a claim or treatment weighed against the Veteran’s lay statement credibility, relying on Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As noted in the JMR, using the passage of time to weigh against the credibility of the Veteran’s lay statements is a misapplication of Maxson. Further, the VA examiner and the RO have continued to improperly require the Veteran’s lay statements of continuity of symptomatology to be accompanied by contemporaneous medical records. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The lack of contemporaneous medical records and the passage of time is inadequate to deny the Veteran’s claim for a bilateral knee disorder. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995). In summary, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s bilateral knee disorder is related to his military service. The Board finds that the Veteran’s bilateral knee disorder is related to the same in-service incurrence as his right foot disability and that he has established continuity of symptomatology to warrant service connection for his chronic disability of arthritis and disability arising therefrom. Accordingly, the Board resolves the benefit of the doubt in favor of the Veteran in this case and finds that service connection for the Veteran’s bilateral knee disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Because the Board is granting service connection on a direct basis, which is a greater benefit, it is unnecessary to address entitlement to service connection for the claimed disorder on a secondary basis. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.