Citation Nr: 21002303 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-08 510 DATE: January 13, 2021 ORDER Entitlement to service connection for left knee disability as a secondary to the service-connected disease or injury is granted. FINDING OF FACT Left knee meniscus and tendinopathy are related to service-connected injury. CONCLUSION OF LAW Left knee disability (meniscus and tendon) are proximately due to service connected injury. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marines from January 1964 to December 1967. The Board previously remanded this matter in April 2020 for additional development. The previous VA examination appears to only address direct service connection and not secondary service connection disability. The Board decision remanded for a VA examination that opined whether it was at least as likely as not (1) proximately due to service-connected disease, or (2) aggravated by the Veteran’s service-connected injury affecting propulsion of the right foot. In May 2020, a VA examination was conducted following the Board’s remand instructions. Therefore, there has been substantial compliance with the remand instructions and this matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to secondary service connection for left knee disability. The Veteran seeks secondary service connection for left knee disability, secondary to his right leg disability. Service connection is in effect for PTSD, wound of the right calf and shrapnel wound scar. To establish service connection a Veteran must show: “(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 or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). Service treatment records contain no complaints of or treatments for left knee disability. The first mention of any pain was by an examination in November 1970 which the Veteran reported aching of the left leg during damp or cold weather. Veteran also reported that he altered his gait due to right foot impairment. While there was left knee pain reported, there is no indication of a left knee injury. The November 2019 VA examiner’s opinion stated that it was less likely than not that his current left knee disability was related to any in-service event. The Veteran did have an in-service shrapnel injury related to his right calf that occurred November 1967. In March 2017, Veteran was diagnosed with a torn left meniscus, a small effusion, quadricep and patellar tendinosis with tears of both tendons at the patella, a contusion or inflammation of suprapatellar fat pad, and semimembranous tendinosis. On May 2020, a VA medical opinion was conducted for secondary service connection. The examiner stated that there is no evidence of a knee condition while in-service and that the claimed condition is less likely than not proximately due to the result of Veteran’s service-connected condition. The opinion explains that there is no evidence of care or complaints of knee conditions until 2014. The Veteran further reported that he “used to have foot drop, does not bother me now” further deteriorating the nexus between the right leg injury and the claimed left knee disability. The opinion concludes that there is no nexus and there is no left knee condition identified while the right is due to strain. The VA examiner states that if the left knee condition had been related to the right leg condition, it would have manifested prior to the 43 years after the right leg injury. On the same May 2020 VA medical opinion, examiner states that Veteran’s claimed condition was not aggravated by the service-connected condition. The opinion of the examiner results in a grant as the opinion is based upon an inaccurate factual basis. Here, the examiner rendered the opinion based upon a mistaken belief that there was no evidence of problems until 43 years post service. However, this opinion is wildly incorrect. In 1970, shortly after service, the Veteran was reporting leg issues that he attributed to his gait. It is clear from the report in 1970, that this was an on-going problem that pre-dated the 1970 examination. Furthermore, there is no reason to suspect that the issues presented in 1970 did not continue. The Board has doubt, shall not remand for another opinion (based upon an accurate history) and such doubt is resolved in favor of the appellant. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Konieczny, Adam 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.