Citation Nr: 21064408 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 11-08 581 DATE: October 20, 2021 ORDER Service connection for a left knee disability, to include left knee arthritis, is granted. Service connection for left lower extremity radiculopathy and sciatica (claimed as left foot disability), secondary to a low back disability, is granted. FINDINGS OF FACT 1. The Veteran has experienced pain, weakness and swelling related to left knee arthritis since his separation from service. 2. The Veteran's left lower extremity radiculopathy and sciatica (claimed as left foot disability) are proximately due to his service-connected low back disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability, to include arthritis, are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for left lower extremity radiculopathy and sciatica (claimed as left foot disability), as secondary to low back disability, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1979 to May 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). The Veteran testified at a May 2019 videoconference hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. A May 2021 rating decision granted service connection for a lower back disability and migraines. The AOJ's action constitutes a complete grant of the benefit sought on appeal and the issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). This matter has been previously remanded three times for additional development, most recently in September 2020. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 1 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. However, as explained in more detail below, the evidence supports a grant of service connection. The Veteran claims service connection for a left foot disability. Development of that issue shows that his left foot complaints are related to a left lower extremity disability (radiculopathy), and the Board has recharacterized the claim accordingly. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be awarded for a disability which is proximately due to or the result of a service-connected disease or disability. See 38 C.F.R. § 3.310. Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis is considered a "chronic disease" that is among the listed conditions. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Left Knee Disability First, the Board finds that the Veteran has been diagnosed with degenerative arthritis of the left knee (based on the February 2008 medical imaging) satisfying the requirement of a current disability. With regard to an in-service event or injury, the preponderance of the evidence, including a 2011 Joint Services Records Research Command (JSRRC) memo, the Veteran's statements, and newspaper article submitted by the Veteran, establish that he was involved in a serious motor vehicle accident that occurred in September 1983, while he was on active-duty military service. As noted in the September 2020 Board decision, the accident occurred in September 1983, but the incident has been consistently referred to as the "1984 accident" and the Board will continue to refer to it as such. The Veteran contends that progressively worsening pain and swelling in his left knee began after he was involved in an in-service motor vehicle accident where the vehicle the Veteran was driving rolled over one and a half times. The Veteran testified that during that accident, his left knee was injured and since that time, he has continued to experience pain, swelling and weakness in his left knee. Service treatment records reference an in-service motor vehicle accident, but do not document treatment for any injuries related to this accident. As discussed in previous Board decisions, in 2011 JSRRC verified the Veteran's involvement in the accident and his subsequent treatment at a military hospital. Those federal records are still not associated with the claims file, despite two prior remands directing the AOJ to obtain these federal records and document all attempts to obtain them. The claims file shows that the records were requested in October 2020, but no response is associated with the claims file. In light of the multiple prior remands to correct this same deficiency, the Board determines that further remand would be futile, and will decide the claim on the current record, applying the doctrine of reasonable doubt. 38 C.F.R. § 3.102. The Veteran's allegations of a left knee injury are consistent with the record, and an in-service left knee injury is established. Turning to the nexus, the Veteran's separation examination was normal with respect to his knees, and he subjectively denied knee problems. Post-service VA treatment records show that in November 2006, an X-ray of the Veteran's left knee was ordered due to a clinical history of arthralgia. The X-ray was unremarkable. Although the claims file documents the November 2006 X-ray, it does not contain the contemporaneous clinical and treatment notes that would document the Veteran's statements or the results of physical examinations. VA treatment records show that the Veteran continued to complain of left knee pain and in January 2008, the knee pain was described as chronic. A February 2008 MRI showed degenerative spurring of the patella, bone marrow edema, cartilage loss and a small effusion in his left knee. The Veteran was treated with non-steroid anti-inflammatory drugs, physical therapy, and lidocaine joint injections. The Veteran attended a September 2019 examination, the Veteran was diagnosed with left knee strain. He reported that his left knee was injured in the 1984 in-service motor vehicle accident, and since then, he has continued to experience pain in his left knee. The 2019 examiner diagnosed the Veteran with a left knee strain and left lower extremity radiculopathy. The September 2019 examiner concluded that these disabilities were less likely than not caused by or incurred in service. A May 2020 addendum opinion also concluded that the left knee disabilities were less likely than not caused or incurred in service. Both opinions relied on the lack of service treatment records corroborating the 1984 motor vehicle accident. At the April 2021 VA knee examination, the Veteran reported that his left knee pain began after the in-service 1984 accident when his knee was injured. He stated that since then, he has experienced progressively worsening swelling, pain, and weakness in his left knee. The examiner diagnosed him with knee strain, patellofemoral pain syndrome and chondromalacia of the patella. The April 2021 examiner concluded that although the Veteran had had an acute left knee injury in service, the Veteran's current diagnoses of knee strain, patellofemoral pain syndrome and chondromalacia were less likely than not incurred in or caused by the claimed in-service injury. She did not mention the February 2008 medical imaging showing degenerative spurring in the patella, joint effusion, cartilage loss or bone marrow edema, nor did she render an opinion as to whether the Veteran's back injury suffered during the 1984 motor vehicle accident caused or aggravated any of his knee disabilities. The opinions of the September 2019, May 2020 and April 2021 examiners are afforded minimal probative weight. As explained in the April 2020 and September 2020 Board decisions, respectively, the September 2019 and May 2020 opinions were inadequate as they failed to account for the Veteran's statements describing the onset, course, and character of his knee pain, and did not address all of the Veteran's current disabilities. Similarly, the April 2021 opinion with regard to the Veteran's orthopedic knee disabilities is similarly inadequate, as it failed to account for all of the Veteran's left knee orthopedic diagnoses and the Veteran's statements about the continuity of his left knee pain in and since service. On the other hand, the Board finds that the Veteran is competent to report the onset, course, and character of his left knee pain, as well as the effect of this pain on his ability to function. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran has consistently reported pain and weakness in his knee, and stated that these symptoms began when he injured his left knee in the 1984 in-service motor vehicle accident. These reports are consistent with the evidence of record as described above, including the medical imaging and the JSRRC findings, and the Board gives his statements significant probative weight. Without any probative medical nexus opinions and resolving all doubt in favor of the Veteran, the preponderance of the evidence supports a grant of service connection for left knee arthritis. The Veteran has competently and credibly reported an in-service injury and ongoing left knee pain in and since service. His repeated complaints of arthralgia prompted his doctors to order an MRI for his chronic left knee pain. This medical imaging showed degenerative arthritic changes to his patella. Resolving all doubt in favor of the Veteran, service connection for a left knee disability, to include arthritis, is granted. Left Foot Disability The Veteran contends that he has pain and weakness radiating down his left leg to his foot. He testified at the May 2019 hearing that pain from his back radiates down his left leg all the way to his foot, making it difficult for him to walk at times. First, the evidence of record establishes that the Veteran has been diagnosed with left lower extremity neuropathy/radiculopathy and sciatica, satisfying the requirement of a current disability. Next, the Veteran has been granted service-connection for a low back disability, which has required lumbar surgery. The remaining question is whether the Veteran's left lower extremity neuropathy and sciatica are proximately due to or the result of his service-connected low back disability. At a September 2019 VA back examination, the Veteran was diagnosed with radiculopathy of the left lower extremity. At the April 2021 VA peripheral nerves examination, the Veteran was diagnosed with neuropathy of the left lower extremity and sciatica. The record contains two opinions of record from May 2020 and April 2021. The May 2020 examiner concluded that the Veteran's radiculopathy was due to his back surgery, but opined that the low back condition requiring lumbar surgery was not due to an in-service event or injury. The April 2021 examiner concluded that although the Veteran's left lower extremity neuropathy was the result of his low back disability and subsequent lumbar surgery, it was less likely than not incurred in or caused by the claimed in-service event. The Board notes that the record contains a VA back and foot examination and opinions from September 2019. The September 2019 examiner concluded that the Veteran's left foot pain was not due to a left foot condition, but was secondary to left lower extremity radiculopathy. However, her opinions on service connection for the Veteran's left foot did not address the Veteran's left lower extremity or sciatica, and are irrelevant to the determination here. Both the May 2020 and April 2021examiners agree that the Veteran's left lower extremity neurological disability was the result of his back surgery. The September 2019 and April 2021 examiners agree that the Veteran's foot pain is caused by his left lower extremity neuropathy/radiculopathy. Although the April 2021 examiner reaches the ultimate conclusion that the Veteran's left lower extremity neurological disability is not service connected, she failed to analyze the evidence under a secondary service connection theory. In her opinion regarding the Veteran's left foot disability, she concluded the Veteran's in-service motor vehicle accident "resulted in lower back injury and pain that then caused sciatic pain and neuropathy to the left leg and foot," and explained the physiology supporting this conclusion. While neither opinion analyzes the Veteran's left lower extremity neurological disability under the correct legal standard, both agree that his neurological disability was the result of lumbar surgery to treat his low back disability, which has subsequently been service-connected. Neither examiner was aware of the award of low back service-connection at the time they opined. For these reasons, the Board gives these opinions some probative weight. The Board finds that the preponderance of the evidence is in favor of service connection for a left lower extremity neurological disability, to include radiculopathy, neuropathy, and sciatica. As such, service connection for the claimed left foot disability is granted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Megan-Brady Viccellio 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.