Citation Nr: 21004852 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-57 202 DATE: January 28, 2021 ORDER Service connection for a right knee condition is granted. REMANDED The issue of entitlement to service connection for diabetes mellitus (diabetes), to include as secondary to obstructive sleep apnea (OSA), is remanded for further development. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Army from September 1982 to July 1986. 2. The Veteran’s service treatment records (STRs) indicate that, in December 1985, he injured his left knee while playing basketball in service. The Veteran was assessed with patellar tendinitis versus infrapatellar bursitis. An injury to the right knee was not formally documented in his STRs. 3. In August 2016, a Department of Veterans Affairs (VA) medical facility x-rayed both of the Veteran’s knees. These x-rays revealed degenerative changes in both knees, most prominent in the medial compartment and somewhat more prominent on the right side as opposed to the left. Additionally, the x-rays revealed spurring arising from the posterior portion of the patella bilaterally as well as bilateral vascular calcifications. The Veteran was then diagnosed with significant degenerative changes of the bilateral medial joint line. 4. In November 2016, the Veteran contended that he injured both of his knees in service and that he has experienced knee symptoms persistently since service. 5. In July 2019, the Veteran testified at a Board of Veterans’ Appeals (Board) hearing. At the hearing, the Veteran stated that he remembered hurting both of his knees running and playing basketball in service. Additionally, he testified that both of his knees have bothered him ever since service. 6. In January 2020, the Veteran was provided a VA knee and lower leg conditions examination. The VA examiner diagnosed the Veteran with bilateral knee joint osteoarthritis. The examiner then noted that this diagnosis of osteoarthritis was supported by imaging studies. During his physical examination, the Veteran reported that he injured his right knee playing basketball in service around 1984 or 1985. Additionally, the Veteran indicated that he has had bilateral knee pain daily ever since his in-service injury. Following the examination, the examiner opined that it was less likely than not that any current right knee condition had its onset in, was caused by, or was otherwise related to service. In support of this conclusion, the examiner stated that there was no documentation in the Veteran’s STRs to confirm an in-service injury to the right knee. The examiner then specified that, without specific documentation, it would be difficult to service-connect the Veteran’s right knee. 7. Later in January 2020, VA received a treatment record dated from August 2019 from non-VA orthopedist Dr. Buran. During this appointment with Dr. Buran, the Veteran first reported experiencing bilateral knee and ankle pain originating 25 to 30 years ago. The Veteran described sustaining injuries to both knees in service while running and playing basketball for physical fitness. Lastly, the Veteran specified that he believed he injured his right knee at some point in 1982 or 1983 while running or training. Dr. Buran reviewed x-ray reports which the Veteran brought with him to the appointment. Dr. Buran stated that these reports documented moderate to severe arthritic changes in both knees with calcifications in the medial collateral ligament (MCL) that were consistent with an old injury and sprain to the MCLs. Dr. Buran then diagnosed the Veteran with other bilateral secondary osteoarthritis of the knee and remarked that the radiologist’s report which he reviewed contained indications of old injuries to the MCL. Dr. Buran stated that the Veteran at least sustained a sprain of the MCLs in the past which had subsequently healed with calcifications. Dr. Buran then opined that it was his opinion that the injuries the Veteran sustained during service were the likely cause for the current state of the Veteran’s knees, substantiating the Veteran’s subjective reports. Dr. Buran explained that not only did the Veteran likely sprain his MCLs in service, but probably tore anterior cruciate ligaments (ACLs) as running and basketball are common mechanisms for tearing the ACL. Lastly, Dr. Buran stated that there was also a probable torn meniscal pathology which contributed to the early demise of both of the Veteran’s knees. CONCLUSION OF LAW The criteria for service connection for a right knee condition are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter comes before the Board on appeal of a July 2015 rating decision of the VA Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction of the Veteran’s claims file currently resides with the Buffalo, New York RO. As mentioned previously in the Findings of Fact section, the Veteran testified at a Board hearing before the undersigned in July 2019. A transcript of the hearing is of record. In December 2019, the Board determined that new and material evidence had been received to reopen the issues of service connection for left knee and neck conditions. The Board then remanded the issues of service connection for diabetes, sleep apnea, a right knee condition, a left knee condition, and a neck condition for additional development. Subsequently, in an April 2020 rating decision, a VA RO granted the Veteran service connection for OSA, cervical strain, and left knee strain with meniscal tear and osteoarthritis. The Board finds that these grants of service connection constituted a full award of the benefits sought on appeal with respect to those issues. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date). Consequently, the issues of service connection for sleep apnea, a neck condition, and a left knee condition are no longer before the Board. Service Connection for a Right Knee Condition As indicated above in the Conclusions of Law section, the Board finds that service connection for a right knee condition is warranted. Accordingly, the Veteran’s appeal is granted. In support of this determination, the Board notes that, generally, establishing service connection requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. 38 C.F.R. § 3.303(a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). As discussed in the Findings of Fact section, the Veteran has a current right knee disability. Specifically, during the claim period, he was diagnosed with right knee joint osteoarthritis, confirmed by x-ray findings. See January 2020 VA Examination Report. Next, regarding an in-service injury to the right knee, the Veteran has testified that he injured his right knee playing basketball, running, and engaging in physical fitness in service. However, an injury to the right knee was not formally documented in his STRs. Despite this lack of in-service documentation, Dr. Buran indicated in August 2019 that the Veteran’s subjective reports were substantiated after physically evaluating the Veteran and reviewing x-ray reports. Accordingly, the Board finds the Veteran’s lay reports of an in-service injury to the right knee to be credible. Thus, the in-service injury requirement of service connection is satisfied. Lastly, regarding the remaining requirement of nexus, Dr. Buran also opined that it was likely that the current state of the Veteran’s knees was attributable to the Veteran’s described in-service injuries as x-ray reports were indicative of old injuries to the MCL. Dr. Buran then explained that, from the Veteran’s physical examination and x-ray results, he at least sprained his MCL in service and most likely had some sort of ACL tear with a probable meniscal pathology. The Board finds Dr. Buran’s August 2019 opinion to be adequate for adjudicative purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In sum, the evidence of record demonstrates that (1) the Veteran has a current right knee condition, (2) he injured his right knee in service, and (3) a medical professional has adequately linked his current right knee condition to an in-service injury. As such, the Board concludes that service connection for the right knee is warranted in the instant case on a direct basis. See 38 C.F.R. § 3.303. In making this determination to grant service connection, the Board acknowledges the January 2020 VA examiner’s negative medical opinion, as described above in the Findings of Fact section. However, the Board finds the January 2020 opinion to be of lesser probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Specifically, the rationale supporting the January 2020 opinion was based upon a lack of a documented right knee injury in the Veteran’s STRs. However, the January 2020 examiner did not have the opportunity to review Dr. Buran’s treatment record and, further, did not directly address whether current x-ray findings were indicative of a prior injury to the MCL. As such, the Board places more value upon Dr. Buran’s positive opinion, warranting a grant of service connection for the right knee. REASONS FOR REMAND Service Connection for Diabetes In the December 2019 remand, the Board requested that the Agency of Original Jurisdiction (AOJ) provide the Veteran a VA examination in connection with his claim for service connection for diabetes. In tandem with this examination, the VA examiner was to opine whether the Veteran’s current diabetes was (1) caused by, incurred in, or otherwise related to service; and (2) caused or aggravated by sleep apnea, only if a positive etiological opinion regarding sleep apnea was associated with the claims file at the time of the diabetes examination. Following the December 2019 remand, the Veteran was provided a VA diabetes examination in January 2020. At the time of this diabetes examination, a positive opinion for OSA was associated with the claims file. After confirming a current diagnosis of type II diabetes mellitus, the VA examiner addressed whether OSA could have caused or aggravated the Veteran’s diabetes. In indicating that she could not opine whether the Veteran’s OSA aggravated his diabetes without resorting to speculation, the January 2020 examiner stated that the Veteran’s OSA pre-existed his diagnosis of diabetes. The Board finds this January 2020 opinion with respect to secondary service connection is inadequate as it conflicts with the Court of Appeals for Veterans Claims’ (Court) holding in Frost v. Shulkin. 29 Vet. App. 131, 134 (2017) (stating that there was not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis). Accordingly, remand is warranted for the provision of an additional VA medical opinion. The matter is REMANDED for the following action: Send the Veteran’s claims file to an appropriate VA clinician for a medical opinion about the nature and etiology of the Veteran’s diabetes. After reviewing the claims file—and performing a physical examination if deemed necessary—the clinician should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s diabetes is proximately due to his OSA (b.) Please state it is at least as likely as not (50 percent probability or more) that the Veteran’s diabetes was aggravated (worsened beyond natural progression) by his OSA. In providing the above opinions, the clinician is reminded that it is not necessary that diabetes be service-connected, or even diagnosed, at the time the Veteran’s OSA arose. The clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.