Citation Nr: 21000561 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 11-20 402 DATE: January 5, 2021 ORDER Service connection for a left knee osteoarthritis is granted. FINDINGS OF FACT 1. The Veteran has a current diagnosis of left knee osteoarthritis. 2. The Veteran developed problems with giving way and pain of the left knee during service. 3. The Veteran experienced symptoms of left knee arthritis that began during service and have been continuous since service separation. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for left knee osteoarthritis have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from April 1969 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for a left knee condition. In May 2013, the Veteran testified at a Board videoconference hearing from the RO in Cleveland, Ohio. The hearing transcript has been associated with the record. The judge who held that hearing has since retired. An October 2020 letter advised the Veteran that the judge who held the May 2013 is no longer with the Board and that he may request a new hearing before another judge. The Veteran was advised that he must return the attached hearing selection form within 30 days or the Board would presume he does not want a new hearing. To date the Veteran has not returned the hearing selection form or provided written notice requesting another hearing; therefore, the Board may proceed in deciding the matter on appeal. This case was previously before the Board in May 2014, February 2017, December 2017, and May 2020. In May 2020, the issue on appeal was remanded to obtain an addendum medical opinion from a VA examiner. While cognizant of its responsibilities under Stegall v. West, 11 Vet. App. 268 (1998), as the Board grants service connection for the left knee disability, which is a total grant of benefits as to the issue on appeal, any questions of remand compliance are rendered moot. Service Connection for a Left Knee Disability The Veteran contends that he began to have problems with the left knee during basic training in 1969. The Veteran specifically reports that he was required to do a lot of jogging and marches during boot camp and had multiple episodes of falls due to his knee “collapsing” during boot camp, and that the left knee continued to pop and collapse when he arrived in Vietnam, but he did not seek treatment initially because the left knee was not painful. The Veteran asserts that he sought medical treatment after the left knee collapsed while he was coming down a ladder, causing him to fall down the ladder and injure his back. The Veteran testified that he incurred pain in the left knee at this time. The Veteran asserts that he has continued to have problems with the left knee collapsing as well as pain and swelling in the left knee intermittently since service separation, primarily with prolonged walking and weightbearing activities. The Veteran testified that he has managed chronic symptoms of left knee pain, swelling, and giving way with Ibuprofen since service separation because he did not have health insurance. See May 2013 Board hearing transcript; July 2009 Statement in Support of the Claim. Under the relevant laws and regulations, 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; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. The current diagnosis is left knee osteoarthritis, which is considered “arthritis” recognized as a “chronic disease” under the presumptive service connection provisions of 38 C.F.R. § 3.309(a); therefore, in the case, the chronic disease presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the claim for service connection for a left knee osteoarthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The evidence shows a current disability of osteoarthritis in the left knee, as reflected in the February 2012 VA treatment note and the December 2014 VA examination report. Service records show a fall from a ladder in July 1969 due to the left knee collapsing, as well as reports of multiple episodes of the left knee collapsing prior to the July 1969 injury. After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether symptoms of left knee osteoarthritis have been continuous since service. The March 1969 enlistment examination shows normal clinical evaluation of the lower extremities, and the Veteran denied any problems with “trick” or locked knee. A July 1969 note indicates that an orthopedic consultation was requested to assess problems with a collapsing left knee. The Veteran reported that he had about seven episodes of the left knee collapsing and reported that he recently injured his back when his left knee collapsed, and he fell down a ladder. An August 1969 orthopedic consultation shows that there was full range of motion in the left knee with no popping or snapping; however, there was tenderness below the left patella and some swelling, as well as palpable clicking of the left knee upon examination. See March 1969, July 1969, August 1969 service treatment records. The Veteran and his spouse have provided credible lay statements and testimony that he has continued to have problems with collapsing or giving way of the left knee, as well as pain and swelling, since service separation, which he has generally managed conservatively with ibuprofen due to a lack of insurance. See March 2013 Board hearing transcript; July 2009 Statement in Support of the Claim. Post-service treatment notes also indicate contemporaneous lay reports, for the purpose of treatment, of giving way of the left knee since boot camp, which was the cause of him falling down a ladder in service. The Veteran reported problems with the left knee “going out” on and off over the years, as well as lateral left knee pain and swelling that increases with weight bearing activities. Examination of the knees revealed a left knee with lateral prominence slightly larger than the right knee, and pain with palpation over the lateral aspect under the patella. Imaging of the left knee showed osteoarthritis in the left knee for which physical therapy and conservative treatment were recommended. See June 2009, July 2009, October 2009, December 2011, February 2012, April 2012 VA treatment records. A VA examination was provided in December 2014. The examiner in December 2014 indicated that he was unable to render an opinion regarding the left knee without resulting to mere speculation, but the examiner did not explain why such opinion was not possible. Addendum medical opinions were provided in March 2017 and December 2017, which were deemed inadequate in assessing whether the current left knee condition is related to service due to failure to adequately consider the evidence of record, including the Veteran’s lay reports of left knee symptoms of giving way and pain during service that have continued since service separation and the currently diagnosed left knee osteoarthritis. See December 2014, March 2017, December 2017 VA examination reports; see also February 2017, December 2017, May 2020 Board decisions. VA provided an addendum opinion in March 2020. The VA examiner opined that it is less likely than not that the Veteran’s current knee condition is related to service. The examiner reasoned that a July 1969 service note reported some swelling and pain to palpation below the patella with full range of motion in the left knee but no medial or lateral joint line pain, indicative of some type of internal derangement that could have resulted in traumatic arthritic changes. The VA examiner noted the left knee examination suggested that the Veteran had a minor injury of the left knee consistent with a contusion that would have more likely than not resolved without residuals in several weeks. The VA examiner also indicated that the Veteran had no complaints or diagnosis of the left knee for a forty year period from 1969 to 2009, so it’s less likely than not that the Veteran’s left knee condition is related to service. See May 2020 VA examination report. The VA examiner’s opinion is of no probative value as the VA examiner did not consider the Veteran’s credible lay history provided during a service medical encounter of having multiple episodes of collapsing or giving way of the knee prior to the July 1979 in-service ladder injury. Moreover, the specific ladder injury occurred on July 28, 1969, and an orthopedic consultation request was placed at that time; however, the Veteran was still noted to have tenderness, palpable clicking, and swelling in the left knee when he was seen for the orthopedic consultation one month later on August 21, 1969. Additionally, the VA examiner did not consider the Veteran’s credible lay reports, including post service lay reports made for the purpose of treatment, of a history of symptoms of giving way, pain, and swelling in the left knee during service that continued on and off since service separation, which he has managed conservatively with ibuprofen for many years due to a lack of health insurance. As the purported opinion was based on materially inaccurate factual assumptions that included a single left knee injury during service and no left knee symptoms for many years after service separation, the opinion is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis, but cannot reject the opinion solely because the history was from the veteran). Moreover, while the VA examiners in March 2017, December 2017, and May 2020 rendered negative nexus opinions on the direct service connection question, such opinions are rendered moot by the grant of presumptive service connection based on continuous post-service symptoms of left knee osteoarthritis. Because the Board has resolved reasonable doubt to find continuous post-service symptoms of left knee osteoarthritis, and is granting presumptive service connection on that basis under 38 C.F.R. § 3.303(b), all other theories of service connection are rendered moot, including direct service connection. This obviates the need for direct nexus opinions (March 2017, December 2017, May 2020) to relate the left knee osteoarthritis to service. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for presumptive service connection for left knee osteoarthritis have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore 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.