Citation Nr: 21001975 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-41 482A DATE: January 12, 2021 ORDER Service connection for left knee patellofemoral syndrome is granted. Service connection for right knee chondromalacia (patellofemoral syndrome) is granted. REMANDED Entitlement to service connection for status post cholecystectomy, claimed as gallstones is remanded. Entitlement to a temporary total disability rating due to surgery necessitating convalescence is remanded. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, her currently diagnosed left knee patellofemoral syndrome is related to her military service. 2. Resolving all doubt in favor of the Veteran, her currently diagnosed right knee chondromalacia (patellofemoral syndrome) is related to her military service. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee patellofemoral syndrome have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right knee chondromalacia (patellofemoral syndrome) have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2001 to October 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in May 2012, May 2014, and May 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran testified at a RO hearing before a Decision Review Officer (DRO) and, in April 2018, she testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the record. In March 2019, the Board remanded the claims on appeal as well as a claim for service connection for arthritis of the left foot for additional development. While on remand, in a September 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for arthritis of the left foot. Thus, as such is a full grant of the benefit sought with respect to the claim for service connection for such disorder, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The remaining issues now return for further appellate review. The Board also observes that, since the issuance of the most recent supplemental statement of the case in September 2020, additional evidence, to include a VA audiological examination and private treatment records, have been associated with the file and the Veteran has not waived AOJ consideration of such evidence. However, the Board finds that there is no prejudice to the Veteran in the Board proceeding with a decision on the issues decided herein as they are granted in full. Additionally, the AOJ will have an opportunity to consider such newly received records in the readjudication of the remanded claims. Furthermore, the Board observes that the Veteran has also perfected an appeal as to the issues of entitlement to an increased rating for adjustment disorder with mixed anxiety and depression and an earlier effective date for such rating; however, as she requested a Board hearing before a Veterans Law Judge in connection with such appeal, those issues will be the subject of a separate Board decision issued at a later date, if otherwise in order. 1. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected left foot disability. 2. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected left foot disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). The Veteran contends that her currently diagnosed left and right knee disorders are directly related to her military service in that they resulted from her duties as a security forces journeyman. Alternatively, she alleges that such disorders are caused or aggravated by her left foot disability as a result of an altered gait. In this regard, as the Board herein awards service connection on a direct basis, the Veteran’s alternative theory of entitlement need not be further addressed. In this regard, the Veteran’s service treatment records (STRs) reflect that, on her July 2001 Report of Medical History, she reported that she had or was then having knee trouble, and her knees hurt sometimes, but a physician never told her she had bad knees. The examiner noted that the Veteran’s snapping in the knee did not cause any problems, and there was no weakness, pain, or injuries. A contemporaneous July 2001 enlistment examination reflected a normal clinical evaluation of her lower extremities, and no defects or diagnoses were noted. Therefore, the Board finds that the Veteran was presumed to have been of sound condition upon entrance into service. Thus, to rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the Veteran’s currently diagnosed left and right knee disorders existed prior to service and were not aggravated by service. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. § 3.304, 3.306. The Veteran’s STRs also reflect that, in December 2004, she injured her left knee while snowboarding and a possible meniscus tear of the left knee was noted. During her September 2005 pre-discharge examination, the Veteran was diagnosed with bilateral knee patellofemoral syndrome. Following the Veteran’s separation from service, she was again diagnosed with left knee patellofemoral syndrome by a March 2012 VA examiner and right knee chondromalacia (patellofemoral syndrome) by a February 2015 VA examiner. In this regard, the March 2012 VA examiner opined that the Veteran’s left knee disorder was the natural progression of her patellofemoral syndrome, which was a condition that existed prior to service. However, as the Veteran was presumed to have been of sound condition upon entrance into service, clear and unmistakable evidence was needed to rebut such presumption, and the examiner did not explain what clear and unmistakable evidence led to his conclusion that the Veteran’s left knee disorder pre-existed her military service. With regard to the Veteran’s right knee disorder, the February 2015 VA examiner opined that such disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, the examiner explained that the Veteran’s current right knee pain was not related to the single documented left knee injury in December 2004. Further, she noted that the September 2005 examination documented a normal examination and X-rays. The examiner also noted that the Veteran’s subsequent post-service treatment records were silent for complaints of right knee pain, workup, diagnosis, or treatment. However, the Board found that such opinion was inadequate as the Veteran’s September 2005 examination noted that she had a diagnosis of bilateral knee patellofemoral syndrome. Additionally, the Veteran submitted a September 2012 treatment record from Dr. E.E., who noted an impression of bilateral knee chondromalacia most likely secondary to activities while in the military. In April 2018, Dr. J.R. opined that the Veteran’s bilateral knee pain was a direct result of chondromalacia that developed and was associated with her active duty service and heavy loadbearing as a security force specialist. Dr. J.R. also noted that the underlying condition was aggravated by a skiing injury in 2003. However, none of the private physicians offered a rationale for their opinions. Consequently, the Board may not rely upon such to award service connection for the Veteran’s bilateral knee disorders. Nonetheless, pursuant to the March 2019 remand, an addendum opinion was provided in August 2020. At such time, the VA examiner opined that it was less likely than not that the Veteran had a pre-existing knee condition. In support of such determination, he stated that, while the Veteran reported occasional bilateral knee pain on entry to service, she also indicated that a diagnosis had not been rendered and she was asymptomatic upon examination. Thus, the examiner found that it did not appear that she had a pre-existing knee disorder; rather, she only had subjective intermittent pain. The examiner further opined that it was less likely than not that the Veteran’s current knee diagnoses were related to service. In this regard, he indicated that there was no evidence in the STRs of patellofemoral syndrome or chondromalacia, and the Veteran served from 2001 to 2005 without evidence of a chronic knee condition. Furthermore, while she reported a twisting injury to the left knee as a result of a snowboarding accident in December 2004, such appeared to have been acute and self-limited as there was no further mention of such injury. The examiner further observed that, while the Veteran reported bilateral knee pain at separation, X-rays were negative. Additionally while bilateral patellofemoral syndrome was diagnosed in September 2005, records from 2006 to 2009 were negative for any knee disorder. The examiner further explained that the Veteran’s current diagnoses of patellofemoral syndrome and chondromalacia are considered overuse, strain-type injuries, usually due to repetitive flexion under a load, such as running, ruck marching, etc. However, once the activity is curtailed, the condition tends to resolve or ameliorate. Thus, the examiner found that, while the current diagnoses are similar to those in 2005, there is no evidence of care until 2011 when the Veteran received injections. Here, he explained that, while it was more likely that such were continuous conditions, they had a new onset in 2011. The examiner further noted that strenuous activity in the military is a given; however, the STRs did not reflect any particular event in service responsible for the Veteran’s diagnosis of patellofemoral syndrome in 2005. However, in a private opinion received in October 2020, Dr. R.M. opined that the Veteran’s bilateral chondromalacia and patellofemoral syndrome was at least as likely as not due to her time in-service. Specifically, he noted that, as stated by the VA examiner, patellofemoral syndrome and chondromalacia were considered overuse, strain-type injuries due to repetitive flexion under a load such as running, ruck marching, etc. However, he explained that, according to medical literature from Harvard health, chondromalacia was usually a permanent problem because articular cartilage healed poorly, and a medical study published in the Eurasian Journal of Medicine found that the symptom severity worsened and knee functions declined as the chondromalacia stage advanced. Thus, he found that it was reasonable that the Veteran did not seek treatment until her symptoms had progressed, and it was likely that the conceded strenuous physical activity in the military caused her chondromalacia and patellofemoral syndrome. After a review of the above, the Board finds the evidence of record is in equipoise as to whether the Veteran’s bilateral knee disorder is related to her military service. In this regard, the Board finds that the evidence does not clearly and unmistakably establish that such bilateral knee disorder pre-existed the Veteran’s military service and was not aggravated therein. Thus, the presumption of soundness has not been rebutted. Moreover, the VA examiner and Dr. R.M., who rendered the August 2020 and October 2020 opinions, respectively, are both competent medical professionals who considered the relevant facts and accepted medical principles, and provided rationales for the opinions. Consequently, their opinions are entitled to equal probative weight. Therefore, the Board resolves all doubt in the Veteran’s favor and finds that her currently diagnosed left knee patellofemoral syndrome and right knee chondromalacia (patellofemoral syndrome) are related to her military service. Thus, service connection for such disorders are warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (199). REASONS FOR REMAND 3. Entitlement to service connection for status post cholecystectomy, claimed as gallstones. Pursuant to the March 2019 remand, an addendum opinion was obtained in July 2020 in order to determine the etiology of the Veteran’s status post cholecystectomy. At such time, the examiner opined that it was less likely as not that such disorder had its onset in or was otherwise related to her military service. However, the examiner did not address a June 2004 STR indicating that the Veteran had gallbladder debris and possible polys or adherent sludge-balls within the lumen of the gallbladder or her contention that such led to her September 2013 cholecystectomy. Rather, the examiner noted that the there was one episode of right upper quadrant pain in June 2004, which was resolved. Furthermore, while Dr. R.M. opined in October 2020 that the Veteran’s gallbladder condition causing polyps at least as likely as not began service, and continued thereafter, ultimately requiring a cholecystectomy, he did not provide a rationale for such opinion. Rather, he simply noted the timeline of events, i.e., the Veteran’s in-service treatment in 2004 and subsequent diagnosis in 2013. Thus, such opinion is insufficient to establish service connection and the Board finds that a remand is necessary in order to obtain an addendum opinion that addresses such matter. 4. Entitlement to a temporary total disability rating due to surgery necessitating convalescence. The Veteran contends that she is entitled to a temporary total disability rating due to her September 2013 cholecystectomy. However, as she is not service-connected for such underlying disorder, the claim for a temporary total disability rating due to such surgery is inextricably intertwined with the claim for service connection for status post cholecystectomy remanded herein. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As such, consideration of the Veteran’s temporary total rating claim must be deferred pending the outcome of the service connection claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: Forward the record, to include a copy of this remand, to appropriate examiner to offer an opinion as to the nature and etiology of the Veteran’s cholecystotomy. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a full review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s status post cholecystectomy, had its onset in, or is otherwise related to, her military service. In rendering his or her opinion, the examiner must consider and discuss the June 2004 STR indicating that the Veteran had gallbladder debris, and possible polyps or adherent sludge-balls within the lumen of the gallbladder and her contention that such led to her September 2013 cholecystectomy, as well as Dr. J.G.’s opinion that the Veteran’s gallbladder problems during her military service were due to the same condition that ultimately led to her gallbladder removal and Dr. R.M.’s October 2020 opinion that the Veteran’s gallbladder condition causing polyps had its onset during her service, continued after service, and required her to undergo a cholecystectomy in September 2013. The examiner is also advised that a lack of medical records demonstrating a continuity of care after service cannot form the sole basis of a negative opinion. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.