Citation Nr: 21003050 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-54 519 DATE: January 19, 2021 ORDER Entitlement to service connection for residuals of right knee arthroscopy and meniscectomy with degenerative changes (a right knee disability) is granted. REMANDED Entitlement to service connection for a right hip disability, to include as due to residuals of right knee arthroscopy and meniscectomy with degenerative changes (a right knee disability) is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, it is at least as likely as not that his right knee disability was aggravated during service. CONCLUSION OF LAW The criteria for service connection for residuals of right knee arthroscopy and meniscectomy with degenerative changes (a right knee disability) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1977 to June 1978. This appeal was remanded by the Board in December 2019. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, additional medical records were obtained and associated with the claims file, and new VA opinions were obtained, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in March 2020. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Entitlement to service connection for residuals of right knee arthroscopy and meniscectomy with degenerative changes (a right knee disability) The Veteran states that his current right knee disability was sustained when he stepped in a hole during a training exercise in service. The Board finds that service connection is warranted. Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Board may consider pain a current disability as outlined above; however, to be considered as such, the pain must rise to the level of functional impairment of earning capacity. See 38 C.F.R. §§ 3.102, 3.303; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); Wait v. Wilkie, No. 18-4349 Here, service connection is warranted because the Veteran has credibly demonstrated continuity of symptomatology since service that is attributable to his injury. First, the Board concludes that the Veteran is currently diagnosed with a right knee disability -- residuals of a 1997 right knee arthroplasty to replace his damaged meniscus. The Veteran states that his knees started hurting again a while after this procedure. Corroborating this statement are medical records dating back to July 2013 showing treatment for right knee pain. The Veteran currently has pain over the patellar tendon of the right knee. While pain alone does not constitute a disorder warranting service connection, pain causing an impairment of earning capacity is considered a current disability. See 38 C.F.R. §§ 3.102, 3.303; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); Wait v. Wilkie, No. 18-4349. Here, the Veteran’s February 2020 C&P examiner noted that this pain causes functional impairment, and specifically that he requires sedentary employment. The Veteran’s relegation to sedentary employment limits the types of jobs he may have, which impairs his earning capacity. Accordingly, the Veteran has a current disability. Next, the Board notes in-service symptoms. The Veteran’s February 1977 enlistment examiner noted residuals of a torn right knee ligament. Service treatment records show the Veteran also injured his right knee in July 1977, resulting in a locked knee. The Veteran attests that his knee never locked prior to the injury, but that it has done so intermittently since. The Board notes the February 2020 C&P examiner’s observation that the Veteran’s residuals of a torn ligament was treated with a total arthroplasty, and that he did not have a disability. While the Veteran may have a new knee joint, which did eliminate the meniscus injury, the examiner did not address the issue at hand – whether the Veteran’s current disability was the result of a pre-existing right knee injury aggravated in service. Nonetheless, the Veteran competently and credibly states in May 2016 correspondence and in his September 2019 hearing testimony that his right knee never locked prior to the July 1977 in-service injury, in which during training exercises, the Veteran’s knee twisted and then popped. The medical and lay evidence shows no intervening injury between the injury to his right knee sustained in high school wrestling, and the July 1977 injury. Therefore, while no treatment records exist from the applicable presumptive period after service, the Board finds that the Veteran continued to experience aggravated symptoms of a right knee ligament tear, eventually culminating in a 1997 arthroplasty, after which the Veteran still has symptoms causing earning capacity impairment. Accordingly, the Veteran has demonstrated continuity of symptomatology from service of a current disability indicating right knee pain since service. As for a medical nexus, the Board notes a February 1991 letter regarding the etiology of the Veteran’s right knee pain. The author, Dr. J., notes that the Veteran’s disability has been aggravated by the walking required in his job as mailman. This conclusion does not necessarily eliminate the Veteran’s disability being aggravated in service. Thus, the Veteran’s November 2013 examiner opined that it was “reasonable to conclude” that the Veteran’s right knee injury, as narrated in the lay and medical evidence, aggravated his right knee disability. The Board remanded the Veteran’s claim for a more precise medical analysis of whether the Veteran’s right knee disability was aggravated in service. Rather than answer that question, the February 2020 C&P examiner concluded that the Veteran’s 1997 arthroplasty eliminated all disability from the Veteran’s knee. Yet, the same examiner found that the Veteran’s right knee had limited range of motion, causing impairment in earning capacity. In light of the previously discussed evidence, the Board finds that further remand for an aggravation opinion, recognizing the Veteran’s knee pain as a current disability, would further unduly delay adjudication of this matter. Affording the Veteran the benefit of the doubt, it is at least as likely as not that his training injury permanently worsened his right knee disability. The Board finds that the Veteran’s competent and credible statements of right knee pain and intermittent locking during and since service place his appeal at least in equipoise. Accordingly, the Board resolves reasonable doubt in the Veteran’s favor and grants service connection for residuals of right knee arthroscopy and meniscectomy with degenerative changes. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. REASONS FOR REMAND Entitlement to service connection for a right hip disability, to include as due to residuals of right knee arthroscopy and meniscectomy with degenerative changes (a right knee disability) is remanded. The Veteran asserts that his right hip arthritis is related to his right knee disability. The Veteran has a current diagnosis of right hip arthritis, per his November 2013 examination, a March 2016 letter from Dr. B.W., and his September 2019 hearing testimony. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). In his March 2016 letter, Dr. W. suggests that the Veteran’s 2014 hip replacement “could have been” related to his previous knee injuries. Again, however, more commentary is needed to determine whether the Veteran’s hip injury is related to a service-connected etiology. A remand of the claim for entitlement to service connection for a right hip disability is required. The matters are REMANDED for the following action: 1. Obtain all relevant treatment records from any VA facility or private treatment provider from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit those records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right hip disability. After identifying all current right hip disabilities, the examiner must opine whether the Veteran’s right hip disability is at least as likely as not aggravated beyond its natural progression by any service-connected disability, to include his right knee disability. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia