Citation Nr: 21065891 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-50 248 DATE: October 27, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left knee/leg disability is denied. REMANDED Entitlement to an increased rating in excess of 10 percent for right knee disability, rated as ACL tear, right knee status post medial meniscectomy x 2, reconstruction of ACL and third patellar tendon graft is remanded. FINDINGS OF FACT 1. The Veteran's right shoulder disability is not secondary to (caused or aggravated by) his service-connected left shoulder disability; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 2. The Veteran's left knee/leg disability is not secondary to (caused or aggravated by) his service-connected left ankle disability; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for a left knee/leg disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1993 to August 2000. These matters come before the Board of Veterans' Appeals ("Board") on appeal from a January 2016 rating decision of the Department of Veterans Affairs ("VA") Regional Office ("RO"). The Board remanded these matters in November 2019 to obtain a new VA medical opinion on the nature and etiology of the Veteran's left knee/leg disability and right shoulder disability. The Board is obligated by law to ensure that the RO complies with its directives; 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. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the RO substantially complied with the directives set forth in the November 2019 remand, and medical opinions obtained in December 2019 are adequate for deciding the issue on appeal. See Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall). SERVICE CONNECTION Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Secondary service connection requires: (1) a service-connected disability; (2) a nonservice-connected disability; and (3) evidence that the nonservice-connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability and not due to the natural progress of the nonservice-connected disability. Id. In determining whether service connection is warranted for a disability, VA must determine 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, 53-54 (1990); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a right shoulder disability. The Veteran filed a claim of entitlement to service connection for right shoulder disability in October 2015, which was denied in the January 2016 rating decision and later in the September 2017 statement of the case. The Veteran timely appealed the matter in the September 2017 VA Form 9, Substantive Appeal, and vaguely asserted that he sustained recreational injuries during his active duty service, presumably to include a right shoulder disability, and that his current disabilities are related to these injuries. Although the Veteran never directly raised his right shoulder service connection claim as secondary to his service-connected left shoulder disability, the RO elected to develop the claim under this theory of entitlement. Thus, the question for the Board is whether the Veteran has a current disability of right shoulder that began during service or is at least as likely as not related to an in-service injury, event, or disease; or alternatively proximately due to or aggravated beyond its natural progression by the service-connected left shoulder disability. The existence of current right shoulder disability is not in question because during the January 2016 examination, the examiner noted the diagnosis of status post-surgery right shoulder with degenerative joint disease. Also, during the December 2019 examination, the examiner noted the diagnosis of right shoulder pain and strain. As far as in-service incurrence or aggravation of a right shoulder condition or pain is concerned, the Veteran was not diagnosed with any right shoulder condition during service, and there is no in-service event, disease, or injury that has plausible relationship with right shoulder disability. Also, there are no complaints of right shoulder pain noted during the Veteran's service. To determine the nature and etiology of his right shoulder condition, including as secondary to the service-connected left shoulder condition, the Veteran was afforded a VA examination in January 2016, during which the examiner noted the diagnosis of status post-surgery right shoulder with degenerative joint disease. After reviewing the medical evidence, the examiner opined that it is less likely than not that the right shoulder degenerative joint disease is due to the Veteran's service-connected partial frozen shoulder with arthritis status post acromioclavicular separation left shoulder. The examiner stated that it is consistent with the medical records. The examiner included the information from the evidence of record and stated that compensation and pension examination on June 22, 2004 noted the injury of right knee status presented ligament reconstruction, and degenerative disease of the left ankle, partially frozen shoulder for acromioclavicular arthritis left shoulder. On October 29, 2015 in Atlanta VAMC, the Veteran was seen at Occupational Therapy for the relief of his left shoulder pain, and there are no medical records for any association between the left shoulder and the right shoulder degenerative joint disease were found. The examiner further explained that the Veteran is right-handed and there is no overuse of right shoulder due to the left shoulder. The examiner concluded that based on lack of evidence to support the claim, the Veteran's current right shoulder degenerative joint disease, is less likely than not due to his service-connected partial frozen shoulder with arthritis status post acromioclavicular separation left shoulder. During the January 2016 VA examination, the examiner did not provide an opinion whether the Veteran's right shoulder condition was directly related to his active service, and whether the right shoulder condition was aggravated by the service-connected left shoulder condition, therefore, the Board remanded the matter in November 2019 to obtain these opinions. Pursuant to the remand, the Veteran was afforded a VA examination for his shoulder condition in December 2019. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner stated that although the Veteran reported a right shoulder condition on day of examination, there was no evidence found in the Veteran's claim file of a diagnosed right shoulder condition that incurred in or caused by service. There is no evidence of chronicity of care. A nexus has not been established. The examiner also opined that it is less likely than not that the Veteran's right shoulder disability is due to or the result of or aggravated by his service-connected left shoulder disability. As a rationale, the examiner stated that medical literature does not support a medical relationship. According to American Academy of Orthopeadic Surgeons, there are two joints in the shoulder, and both may be affected by arthritis. One joint is located where the clavicle meets the tip of the shoulder blade (acromion). This is called the acromioclavicular (AC) joint. Also known as "wear-and-tear" arthritis, osteoarthritis is a condition that destroys the smooth outer covering (articular cartilage) of bone. As the cartilage wears away, it becomes frayed and rough, and the protective space between the bones decreases. A nexus has not been established. The Board reviewed the evidence of record, including private and VA treatment records, and finds that there is no nexus established between the Veteran's right shoulder condition and his active military service or the service-connected left shoulder condition. The Board has considered the Veteran's statement in support of the claim, including the September 2017 VA Form 9, Substantive Appeal, in which he vaguely asserted that he sustained recreational injuries during his active duty service and that his current disabilities are related to these injuries. The Board acknowledges that the Veteran may sincerely believe that the right shoulder condition is related to his service. However, in this case he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, and the Veteran has not demonstrated that he has the medical education, training, or expertise to make such a conclusion. See Bostain v. West, 11 Vet. App. 124, 127 (1998) (finding that assertions, in the absence of evidence that a veteran has the expertise to render opinions about medical matters, are not probative). Hence, the Board gives more probative weight to the medical evidence, including the January 2016 and December 2019 VA medical opinions, and finds that the Veteran's right shoulder condition is not directly related to his service, and also is not proximately due to or aggravated by his service-connected left shoulder disability. As noted above the Veteran has been diagnosed with degenerative joint disease of the right shoulder. During the January 2016 VA examination, the examiner noted the onset of symptoms in June 2013 and right shoulder surgery in 2014. The Board notes that arthritis is enumerated as one of the chronic diseases under 38 C.F.R. § 3.309(a); and can also be analyzed for entitlement to presumptive service connection for a chronic disease. 38 C.F.R. § 3.309(a). If a Veteran has a current, chronic disability listed in 38 C.F.R. § 3.309(a), a nexus can be presumed if there is evidence of chronic disease manifested as such during active service; or chronic disease manifested to a compensable degree within a specified period after active service (usually 1 year); or if there is competent, credible, and persuasive evidence of continuity of symptomatology since active service. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The competent and probative evidence of record does not demonstrate that the Veteran's degenerative joint disease of the right shoulder manifested to a compensable degree within one year of active duty service. The Veteran's service and other treatment records do not indicate that the Veteran was diagnosed with degenerative joint disease of the right shoulder during service or within one year of the service. As noted above, the Veteran asserted that he sustained recreational injuries during his active duty service and that his current disabilities are related to these injuries. However, the service treatment record, VA treatment record, or private treatment record do not indicate that the Veteran was diagnosed with degenerative joint disease of the right shoulder during service or within one year of the service. As far as continuity of symptomatology is concerned, there are no symptoms of right shoulder pain in service or continually after the service. As noted by the VA examiner during the January 2016 examination, the Veteran's degenerative joint disease of right shoulder was diagnosed in 2013, which is more than 13 years after the separation from service. The Board does not find a continuity of symptomatology of the right shoulder disability since service; hence the chronic diseases presumption does not apply in this case under 38 C.F.R. § 3.309(a). After reviewing the evidence of record and based on the above analysis, the Board concludes that the Veteran's right shoulder disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. Also, the competent, probative, and persuasive evidence of record shows that the Veteran's right shoulder disability is not proximately due to or the result of or aggravated beyond its natural progression by the service-connected left shoulder disability. A preponderance of the evidence is against the claim, consequently, entitlement to service connection for a right shoulder disability is denied. 2. Entitlement to service connection for a left knee/leg disability. The Veteran contends that he has a left knee/leg disability that is related to his service or otherwise secondary to his service-connected left ankle disability. In the September 2017 VA Form 9, Substantive Appeal, the Veteran asserted that he sustained recreational injuries during his active duty service and his current disabilities are related to these injuries. Thus, the question for the Board is whether the Veteran has a current left knee/leg disability that began during service or is at least as likely as not related to an in-service injury, event, or disease; or alternatively proximately due to or aggravated beyond its natural progression by the service-connected left ankle disability. The existence of a current left knee/leg disability is not in question because during the December 2019 examination, the examiner noted the diagnosis of left knee degenerative arthritis and left leg strain. As far as in-service incurrence of a left knee/leg condition is concerned, the Veteran was not diagnosed with degenerative arthritis of the left knee or left leg strain during the active service, however, the Veteran's service treatment record reflects a 4-day history of left knee pain in November 1999 following a basketball injury. The Veteran was assessed with a rule out diagnosis of internal derangement. The left knee X-rays were taken after the injury, which were normal without any fracture, dislocation; also, the joint surfaces were intact and joint width was normal. To determine the nature and etiology of his left knee/leg condition, including as secondary to the service-connected left ankle disability, the Veteran was afforded a VA examination in January 2016. After reviewing the medical evidence, the examiner opined that it is less likely than not (less than 50 percent probability) that the left knee degenerative joint disease is due to the Veteran's service connected ankylosed left ankle with traumatic arthritis. As a rationale, the examiner stated that it is consistent with the medical records. The examiner included the information from the evidence of record and stated that in March 2004 the Veteran was seen was seen for right knee status posts anterior cruciate ligament (ACL) reconstruction and left ankle peroneal tendinitis by the orthopedic. On October 19, 2011 the Veteran was seen for status post ankle stabilization and osteotomy with retro calcaneal slide. Also, the diagnosis of plantar fasciitis was noted, and the Veteran was told to continue his physical therapy and ibuprofen and consult for PM&R was placed. In November 1999 left knee injury was noted, and the x-ray showed normal left knee. In July 2011, Dr. Griffin noted bilateral knee examination was normal and range of motion was normal, and the gait was normal. No medical records for any association between the left knee and the right knee degenerative joint disease were found. The examiner concluded that based on lack of evidence to support the claim, the Veteran's current left knee degenerative joint disease is less likely than not due to his service-connected ankylosed left ankle with traumatic arthritis. In the January 2016 VA medical opinion, the examiner did not address whether the Veteran's left knee/leg condition was directly related to his active service, and whether the left knee/leg condition was aggravated by the service-connected left ankle disability; therefore, the Board remanded the matter in November 2019 to obtain an opinion on direct and secondary service connection. Pursuant to the remand, the Veteran was afforded a VA examination for his knee/leg condition in December 2019, during which the examiner noted the diagnosis of left knee degenerative arthritis and left leg strain with a date of onset of January 2016. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner stated that although the Veteran's left knee was injured in November 1999 but there is no evidence found of chronic left knee/leg condition that incurred in or caused by left knee/leg injury during service. There are insufficient medical records in the 17 year gap post service to support a chronic left knee condition. There is documentation dated January 2016 of X-ray of left knee showing degenerative changes. A nexus has not been established. The examiner also opined that it is less likely than not that the left knee/leg disability is due to or the result of or aggravated by the Veteran service-connected left ankle disability. The two conditions left knee/leg condition and left ankle disability are not related. The medical literature does not support a relationship. According to Medscape, Patellofemoral arthritis can be a result of inflammatory conditions or mechanical abnormalities. Inflammatory conditions include rheumatoid arthritis; often, the entire knee joint involved. Some orthopedists believe that reconstruction of ACL with a patella tendon graft may lead to subsequent patellofemoral pain, loss of motion, and arthritis. A nexus has not been established. The Board reviewed the evidence of record, including VA and private treatment records, and finds that there is no nexus established between the Veteran's left knee/leg condition and his active military service or the service-connected left ankle disability. The Board has considered the Veteran's statement in support of the claim, including the September 2017 VA Form 9, Substantive Appeal, in which he vaguely asserted that he sustained recreational injuries during his active duty service and that his current disabilities are related to these injuries. The Board acknowledges that the Veteran may sincerely believe that his left knee/leg condition is related to his service. However, in this case he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, and the Veteran has not demonstrated that he has the medical education, training, or expertise to make such a conclusion. See Bostain, 11 Vet. App. at 127 (finding that assertions, in the absence of evidence that a veteran has the expertise to render opinions about medical matters, are not probative). Hence, the Board gives more probative weight to the medical evidence, including the January 2016 and December 2019 VA medical opinions, and finds that the Veteran's left knee/leg condition is not directly related to his service, and also is not proximately due to or aggravated by his service-connected left ankle disability. As noted above, the Veteran has been diagnosed with the left knee arthritis. During the December 2019 VA examination, the examiner noted arthritis onset as of 2016. The Board notes that arthritis is enumerated as one of the chronic diseases under 38 C.F.R. § 3.309(a); and can also be analyzed for entitlement to presumptive service connection for a chronic disease. 38 C.F.R. § 3.309(a). If a Veteran has a current, chronic disability listed in 38 C.F.R. § 3.309(a), a nexus can be presumed if there is evidence of chronic disease manifested as such during active service; or chronic disease manifested to a compensable degree within a specified period after active service (usually 1 year); or if there is competent, credible, and persuasive evidence of continuity of symptomatology since active service. See Walker, 708 F.3d at 1338; 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The competent and probative evidence of record does not demonstrate that the Veteran's left knee arthritis manifested to a compensable degree within one year of active duty service. The Veteran's service and other treatment records do not indicate that the Veteran was diagnosed with left knee arthritis during service or within one year of the service. As noted above, the Veteran asserted that he sustained recreational injuries during his active duty service and that his current disabilities are related to these injuries. However, the service treatment record, VA treatment records do not indicate that the Veteran was diagnosed with left knee arthritis during service or within one year of the service. As noted above, the x-ray taken in November 1999 after the left knee injury were normal without any degenerative changes. As far as continuity of symptomatology is concerned, there is no continuity of pain or any other symptoms related to the Veteran's left knee/leg since the Veteran's service. As noted by the VA examiner during the December 2019 examination, the Veteran's left knee arthritis was diagnosed in January 2016, which is more than 15 years after the separation from service. In this regard the Board notes that the June 2008 VA treatment record reflects the left knee physical examination did not show any surgical scars, effusion, crepitus, and range of motion was normal. Hence, the Board does not find a continuity of symptomatology of the left knee/leg disability since service; hence the chronic diseases presumption does not apply in this case under 38 C.F.R. § 3.309(a). After reviewing the evidence of record and based on the above analysis, the Board concludes that the Veteran's left knee/leg disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease, including the November 1999 left knee injury. Also, the competent, probative, and persuasive evidence of record shows that the Veteran's left knee/leg disability is not proximately due to or the result of or aggravated beyond its natural progression by the service-connected left ankle disability. A preponderance of the evidence is against the claim, consequently, entitlement to service connection for a left knee/leg disability is denied. REASONS FOR REMAND Entitlement to an increased rating in excess of 10 percent for right knee disability, rated as ACL tear, right knee status post medial meniscectomy x 2, reconstruction of ACL and third patellar tendon graft is remanded. In the October 2015 VA form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, the Veteran filed a claim for "right knee (secondary [to] left leg) pain." The Veteran provided no further clarification as to the nature of this claim, and the RO did not seek any further clarification from the Veteran. Thus, the RO adjudicated the claim as entitlement to service connection for right knee pain, with total disregard to the fact that the Veteran was already granted service connection for a right knee disability, in a September 2001 rating decision with a non-compensable disability rating, which was later increased to 10 percent rating in the January 2002 rating decision. Therefore, in November 2019 decision, the Board recharacterized the issue on appeal from one seeking service connection for right knee pain to one seeking a noninitial disability rating in excess of 10 percent for the service-connected right knee disability and remanded the matter for RO to readjudicate the claim at the first instance. Subsequently, the RO afforded the Veteran a VA examination for his knee condition in December 2019, during which the Veteran reported ongoing pain to right knee has been worsening over the years with pain and stiffness worsening in the last 18 months and occurring daily. The examiner noted ACL tear, right knee, s/p medial meniscectomy X2, reconstruction of ACL and third patellar tendon. The examiner also noted that the Veteran uses brace regularly. In this regard, the Board notes that, effective February 7, 2021, certain portions of 38 C.F.R. § 4.71a, which provide the ratings schedule for disabilities of the musculoskeletal system, were revised. The medical evidence of record indicates that the Veteran had an ACL tear in his right knee, which may entitle him to an increased rating under the revised criteria for diagnostic code 5257 if the Veteran has a right knee instability caused by ACL tear, and the Veteran uses an assistive device prescribed by a medical provider. As described above, during the December 2019 VA examination, the examiner noted the use of knee brace regularly, however, it is not clear whether a medical provider prescribed the use of brace or the Veteran is using it without a prescription. Consequently, a remand is warranted to schedule the Veteran for new VA examination that is consistent with new criteria. The matter is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to determine the current severity and nature of the service-connected right knee disability that is consistent with the recently revised rating criteria for a knee disability. 2. The examiner should provide the opinion regarding the following: (a) Does the ACL tear a complete or incomplete ligament tear? (b) Is the ACL tear repaired, unrepaired, or a failed repair? (c) Does the ACL tear cause persistent instability of the right knee? (d) Does the ACL tear require a prescription from a medical provider for an assistive device (e.g., cane, crutches, walker) or bracing for ambulation? The examiner should consider the Veteran's lay statement regarding recurrent pain and swelling in the right knee. The examiner should also address flare-ups and additional functional loss during flare-ups, including estimated additional loss of range of motion during flare-ups. A complete rationale for the opinion rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, if the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.