Citation Nr: 21003452 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-58 671 DATE: January 21, 2021 ORDER Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability, is denied. REMANDED Entitlement to service connection for lumbar spine disability is remanded. Entitlement to service connection for bilateral shin splints is remanded. FINDING OF FACT The evidence is insufficient to establish that the Veteran’s left knee disability is proximately due to, the result of or aggravated by his service-connected right knee disability. CONCLUSION OF LAW The criteria for service connection for a left knee disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Marine Corps from February 1990 to May 1991. In January 2020, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing. A copy of the transcript has been associated with the claims file. In June 2020, the Board remanded the appeal for further development. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a disease enumerated by the regulations, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1110, 1133; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 1. Service connection for a left knee disability, to include as secondary to a service-connected right knee disability The Veteran contends that his left knee disability is due to his period of service, to include as secondary to his service-connected right knee disability. The Board finds that, while the Veteran has a current diagnosis of left knee arthritis, the evidence is insufficient to establish that the Veteran’s left knee disability is related to his period of service or service-connected right knee disability. The Veteran’s medical records indicate a current diagnosis of left knee arthritis. The Veteran’s service treatment records do not indicate complaint of or treatment for a left knee disability or injury during his period of service. Moreover, in a June 2012 VA medical opinion, the examiner opined that it was less likely than not that the Veteran’s left knee disability is due to his period of service. The examiner noted that the Veteran’s service treatment records are negative for documentation of left knee symptoms, and the Veteran reported onset of left knee problems after service. As the second and third elements of service connection on a direct basis have not been met, analysis will turn to secondary service connection. At the outset, the Board notes that the June 2020 Board decision found that the August 2016 VA medical opinion and February 2020 private medical opinion were inadequate for the purpose of determining whether the Veteran’s left knee disability is secondary to his right knee disability. Therefore, no further discussion of these opinions is necessary. In an October 2020 VA examination, the examiner opined that it was less likely than not that the Veteran’s left knee disability is proximately due to or the result of Veteran’s service-connected right knee disability. The examiner explained there is no clear evidence from review of orthopedic literature (Wheeless’ Textbook of Orthopedics) to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5 cm so that the individuals gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. The examiner stated that this level of severity is not supported based on record review, history or examination. The examiner went on to state that it is not unusual for two joints to share properties in the same person, but one joint's disease does not ‘spread’ to another or cause damage to it. Therefore, the examiner concluded that the left knee disability “arthritis” is less likely than not related to the right knee disability “arthritis.” (Oxford's Textbook on Orthopedics and Trauma). The examiner also opined that it was less likely than not that the Veteran’s left knee disability is aggravated beyond its natural progression by his service-connected right knee disability. Citing medical literature, the examiner stated that osteoarthritis is considered a progressive disease and worsens over time. The examiner also stated that severe trauma and possibly repeated microtrauma, excessive activity, inactivity, and obesity are believed to aggravate symptoms. The examiner reported that there is no medical evidence found to support osteoarthritis of the right knee aggravates osteoarthritis of the left knee. After review of the record, the Board finds that the evidence weighs against a finding of service connection for a left knee disability. The October 2020 VA medical opinion provided a negative nexus based on the Veteran’s medical history and the current medical literature and provided a thorough rationale for the findings. The Board finds this opinion probative for the purpose of adjudicating the claim. As the probative evidence of record weighs against a finding of causation or aggravation by the Veteran’s service-connected right knee disability, service connection for a left knee disability is not warranted. While the Veteran believes that his left knee disability is related to his service-connected right knee disability, he is only competent to report symptoms and is not competent to opine on the etiology of a left knee disability, as this is a medically complex question. As the probative medical evidence does not establish a nexus, the criteria for service connection has not been met. Moreover, while arthritis may be considered for presumptive service connection under 38 C.F.R. § 3.309, the record does not indicate manifestation of left knee arthritis within one year of the Veteran’s separation from service, nor did the Veteran report onset of left knee problems until several years after service. Therefore, service connection is not warranted. REASONS FOR REMAND 1. Service connection for lumbar spine disability The Veteran contends that his lumbar spine disability is due to his period of service, to include as secondary to his service-connected right knee disability. In a June 2020 Board remand, the Board instructed that the examiner determined whether it is at least as likely as not that the Veteran’s lumbar spine disability is due to or aggravated by the Veteran’s service-connected right knee disability. In an October 2020 VA examination, the examiner found that it was less likely than not that the Veteran’s lumbar spine disability was aggravated beyond the natural progression by his service-connected right knee disability. The examiner explained that spondylosis is age-related change of the bones (vertebrae) and discs of the spine. The examiner stated that these changes are often called degenerative disc disease and osteoarthritis. The examiner reported that osteoarthritis is considered a progressive disease and worsens over time. The examiner concluded therefore, that there is no aggravation beyond its natural progression by the service-connected right disability. The Board notes that VA regulations pertaining to secondary service connection require a determination of whether the Veteran’s lumbar spine disability is proximately due to his service-connected right knee disability. See 38 C.F.R. § 3.310. Although the October 2020 VA opinion provided an aggravation opinion, it did not provide a causation opinion. As the October 2020 opinion did not include a causation opinion, a remand for an addendum opinion is necessary. 2. Service connection for bilateral shin splints is remanded. The Veteran contends that his bilateral shin splints are due to his period of service. In a June 2020 Board remand, the Board instructed that the examiner determined whether it is at least as likely as not that the Veteran’s bilateral shin splints are due to the Veteran’s active duty service. In making this determination, the examiner was asked to consider and discuss the Veteran’s report of marching and carrying excess weight in relationship to his current shin splints. In an October 2020 VA examination, the examiner found that it was less likely than not that the Veteran’s bilateral shin splints were due to his period of service. The examiner stated that the Veteran’s service treatment records are silent regarding a shin splint condition. The examiner then stated that a nexus has not been established. Unfortunately, the record does not reflect that there has been substantial compliance with the Board's June 2020 remand as concerning the Veteran’s claim for service connection for bilateral shin splints. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Here, the October 2020 VA opinion did not discuss the Veteran’s credible statements regarding his in-service marching and carrying excessive weight as instructed by the June 2020 Board directives. As such, a remand for an addendum opinion is necessary. The matters are REMANDED for the following action: Send the Veteran’s file to an appropriate examiner(s) for addendum opinions to determine the nature and etiology of the Veteran’s lumbar spine disability and his bilateral shin splints. An examination may be scheduled only if the examiner(s) deems it necessary and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner(s) shall consider all other medical records associated with this file. After examination and review of the record, the examiner(s) is asked to offer an opinion on the following: a. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s lumbar spine disability is proximately due to his service-connected right knee disability. b. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has a bilateral shin splint disability that is due to his period of active duty service. In making this determination, the examiner MUST consider and discuss the Veteran’s report of marching and carrying excess weight in relationship to his current shin splints. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ford 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.