Citation Nr: 21002871 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-09 026 DATE: January 19, 2021 ORDER Entitlement to service connection for a right knee disability, as secondary to the service-connected residuals of a right ankle strain with tendonitis, achilles tendon rupture, and arthritis, is granted. FINDING OF FACT A medical nexus has been established between the Veteran’s current right knee disability and his service-connected residuals of a right ankle strain with tendonitis, achilles tendon rupture, and arthritis. CONCLUSION OF LAW The criteria for entitlement to service connection for a right knee disability, as secondary to the service-connected residuals of right ankle strain with tendonitis, achilles tendon rupture, and arthritis, have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from March 1990 to June 1994. During the current appeal, and specifically in September 2019, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the file. In December 2019, the Board remanded the claim for further evidentiary development, specifically to obtain a new examination to determine the nature and etiology of the Veteran’s right knee disability. Preliminarily, the Board notes that the Veteran’s representative (NACVSO) is a national veterans service organization (VSO), which would require the submission of an Informal Hearing Presentation (IHP). At this time, NACVSO is waving the submission of IHPs. The waiver letter has been uploaded to the Veteran’s claims file. See January 2021 Correspondence. The Board notes that the Veteran submitted additional medical evidence after the issuance of the July 2020 Supplemental Statement of the Case (SSOC). If new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests consideration by the Agency of Original Jurisdiction (AOJ). In this case, the Veteran's substantive appeal was filed after February 2, 2013 and the Veteran did not request initial review by the AOJ. Moreover, in light of favorable decision below, a remand for the additional evidence to be considered by the AOJ is not warranted. Service connection for a right knee disability, as secondary to the service-connected residuals of a right ankle strain with tendonitis, achilles tendon rupture, and arthritis Service connection may be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § § 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In the current appeal, the Veteran contends that his current right knee disability is the result of his service-connected residuals of a right ankle strain with tendonitis, achilles tendon rupture, and arthritis. The evidence of the record establishes that the Veteran has a current diagnosis of a right knee disability, which has been characterized as a meniscal tear, degenerative changes, and residuals status post arthroscopic meniscus repair. See December 2015 Private Medical Records; January 2020 VA Examination Report. The Veteran is service connected for residuals of right ankle strain with tendonitis, achilles tendon rupture, and arthritis. Regarding whether there is a nexus between the currently diagnosed right knee disability and the already service-connected right ankle disability, the Board notes that, in a private medical record submitted in June 2015, the Veteran’s physician, Dr. G.S., noted that, if the VA doctors established that the Veteran has functional limitations in the right ankle, that it could certainly play a role in making it more likely he could sustain a right knee injury. See June 2015 Private Medical Records. In this opinion, the physician used speculative language, such as “could” and “if”, and does not provide further explanation as to the provided opinion. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (medical opinion is speculative when it uses equivocal language such as "could" or "might," without any other rationale or supporting data) In January 2020, the VA examiner opined that the Veteran’s right knee condition was neither proximately secondary, nor permanently aggravated beyond its natural progression, by the Veteran’s service-connected right ankle disability. The examiner stated that the Veteran’s right knee condition was a separate condition from his right ankle condition. The examiner specified that each condition has a specific pathophysiology. The examiner noted that there was a lack of supporting medical evidence to substantiate the relationship. In this opinion, the VA examiner simply provides a conclusion without an explanation. Specifically, the examiner does not provide a thorough rationale addressing causation and aggravation. The examiner fails to explain why the Veteran’s right ankle condition, although a separate condition, could not cause or aggravate his right knee condition. In September 2020, Dr. G.S. stated that it would be difficult to make a statement regarding a relation without knowing all of the work-up that had been done on the Veteran’s right ankle. The doctor did state that, if the Veteran had functional limits on his right ankle, then such could certainly play a role in increasing the risk of an injury to the right knee. The doctor concluded that, with the limited information provided, a chronic injury to the right ankle could certainly play a role in pain development and functional problems with other body parts. The Board acknowledges that this opinion is also somewhat speculative as to the relationship between the Veteran’s right knee condition and his service-connected right ankle disability. In a September 2020 correspondence, another private physician, Dr. R.H., who also treated the Veteran for his right knee problems, explained that the Veteran fractured his right ankle in the miliary and did not cast and became chronic pain. In 2010, the Veteran’s Achilles tendon was torn. The physician stated that the problem in the right ankle eventually affects how the same side knee moves and that, if the ankle joint cannot move optimally like it is supposed to, such problems force the knee to move improperly. The evidence shows that there are conflicting medical opinions of record with regard to the matter of whether the Veteran's right knee condition is due to his service-connected right ankle condition. The Board must therefore weigh the credibility and probative value of these opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). As previously discussed herein, the January 2020 VA examiner’s opinion is simply conclusory and does not provide a thorough explanation of the reasons for the conclusion reached. Therefore, the Board assigns low probative weight to this opinion. One of the Veteran’s physicians, Dr. G.S., had limited information regarding the nature of the Veteran’s right ankle and thus could only speculate as to whether his service-connected right ankle condition caused or aggravated his right knee condition. The other physician, Dr. R.H., explained that the impairment of the right ankle would affect how the right knee moved. This physician addressed the medical history regarding the nature of the Veteran’s right ankle condition. After a thorough consideration of the evidence of the record, the Board determines that a nexus has been established between the Veteran’s current right knee disability and his service-connected right ankle condition. The Board finds the opinion of Dr. R.H. to be highly competent and probative. The physician’s opinion includes medical history of the Veteran’s right ankle that is consistent with the evidence of the record and an explanation based on medical principles as to how the right ankle could affect the impairment of the right knee. Dr. R.H has also treated the Veteran for his right knee condition and is, thus, familiar with the particulars of the Veteran’s right knee condition. Accordingly, the Board finds that a medical nexus between the Veteran’s current right knee disability and his already service-connected right ankle condition has been established. Service connection for the diagnosed right knee disability, as secondary to the service-connected right ankle condition is, thus, warranted. In reaching this decision, the Board acknowledges that this appeal has previously been characterized to include entitlement to service connection for a right knee disability on a direct basis. However, after consideration of the totality of the evidence now of record, the Board finds that the Veteran has essentially contended that his right knee problems have resulted from his service-connected right ankle condition. Of significance in this matter is the fact that, even though the Veteran has described some right knee problems in service, those difficulties appear to have begun after the documented in-service injury to his right ankle. In other words, the Board finds that, throughout the current appeal, the Veteran has consistently asserted that his right knee problems began after he injured his right ankle—and that therefore, (CONTINUED ON NEXT PAGE) his right ankle difficulties led to the subsequent impairment of his right knee joint. Accordingly, the Board finds that any further discussion of the issue of entitlement to service connection for a right knee disability on a direct basis is not warranted, particularly in light of this decision’s grant of service connection for a right knee disability, as secondary to the service-connected residuals of a right ankle strain with tendonitis, achilles tendon rupture, and arthritis. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.