Citation Nr: 21067344 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19-00 038A DATE: November 4, 2021 ORDER Service connection for chronic left knee pain is granted. Service connection for right knee disability, to include osteoarthritis, is denied. REMANDED Entitlement to service connection for lumbar spine disability, to include surgical residuals, is remanded. Entitlement to service connection for heart disability, to include atrial fibrillation, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his chronic left knee pain is attributed to an injury against a piling in active service, which pushed over the Veteran's left kneecap and caused swelling. 2. The Veteran's right knee disability was not manifest during active service, and is not attributable to service or caused or aggravated by a service-connected disease or injury. CONCLUSIONS OF LAW 1. Chronic left knee pain was incurred in wartime service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303. 2. Right knee disability, to include osteoarthritis, was not incurred in or aggravated by service; and is not proximately due to or a result of service-connected disease or injury. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Navy from January 1945 to July 1946, including service in World War II; and his decorations include the Victory Ribbon, the American Campaign Medal, and the Asiatic-Pacific Campaign Medal. He timely appealed these matters from a March 2018 rating decision. In August 2020, the Veteran and his daughter testified before the undersigned at a virtual hearing; a transcript of the hearing is associated with the claims file. In September 2020, the Board remanded the matters for further development, including examinations. The Veteran underwent examinations in March 2021, and medical opinions were obtained. Here, substantial compliance with the Board's September 2020 remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). All available records identified by the Veteran as relating to each of his claims were obtained, to the extent possible. The record does not otherwise indicate any existing pertinent evidence that has not been obtained. Examination reports and opinions are thorough and adequate for the Board to render the following decisions in the Veteran's appeal. 38 U.S.C. § 5103A(a)(2). 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. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some chronic diseases, such as arthritis, 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). The applicable presumptive period is one year from separation. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). In this case, the Veteran was presumed sound at service entry, except for bilateral pes planus. Clinical evaluation at entry in January 1945 was normal, and no disability was recorded. Nor is there medical evidence of any disability prior to active service. The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran served aboard the USS LST (Landing Ship Tanks)-625 from July 1945 to February 1946, and he served aboard the USS LST-985 from February 1946 to June 1946. In May 2018, the Veteran contended that each of his disabilities was a direct result of active service aboard ships, which required heavy lifting and carrying of gear and supplies on pitching and rolling decks. He reportedly worked as a cook and as a deck hand, which required long hours on his feet, further worsening his orthopedic disabilities. He reportedly was exposed to hazards aboard ships, including chemicals and asbestos and extreme temperatures. His reports of factual matters of which he had first-hand knowledge are competent. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Left Knee Service treatment records do not reflect any findings or complaints of left knee disability, to include arthritis; nor is there evidence of trauma or injury to the left knee. Physical examination of the Veteran's extremities at his discharge examination in July 1946 noted solely flat feet of second degree, which was asymptomatic. Post-service records, dated in August 2019, show a history of bilateral knee pain for quite some time; no specific injury was noted. Following examination, the assessment was degenerative joint disease of bilateral knee. In August 2020, the Veteran testified that at Pearl Harbor he was "put out" on a piling to hold a rope while a ship was being tied up; the ship started drifting off. The Veteran held on with his knees against the piling, which pushed his left kneecap over and swelled; it hurt, and he was treated aboard ship by a pharmacist's mate. The Veteran was given APCs (Aspirin, phenacetin, and caffeine, commonly called "all purpose capsules"). He continued to have problems with his left knee ever since. His daughter testified that the Veteran's left knee sometimes buckled, and he was given cortisone shots. X-rays of bilateral knee in August 2019 revealed bone-on-bone arthritis of patellofemoral joint and moderate arthritis of tibiofemoral joint. The Veteran complained of pain in both knees. His last cortisone shot was in March 2021; the assessment was knee pain. Pursuant to the Board's September 2020 remand, the Veteran underwent a VA examination in March 2021. Knee joint osteoarthritis was diagnosed. Current symptoms included pains with excessive walking and activity. The Veteran was a "fall risk" and range of motion testing was not conducted. Pain did cause functional loss; the Veteran was unable to sit or stand or walk for long. He used a cane for knee pains. Following examination, the examiner opined that bilateral knee osteoarthritis was less likely than not incurred in or caused by active service. In support of the opinion, the examiner reasoned that age-appropriate osteoarthritis was documented in 2019i.e., several decades after discharge from active service. The March 2021 examiner also opined that bilateral knee osteoarthritis was less likely than not proximately due to or the result of the Veteran's service-connected pes planus. Specifically, there was neither anatomical, nor pathophysiological, nor neuronal, nor hormonal, nor physio-kinetic correlation to causation. In this case, there is a gap of decades between the Veteran's discharge from active service in 1946 and records documenting knee osteoarthritis. A continuity of symptomatology of knee osteoarthritis is not established. Walker, 708 F.3d at 1338-39. Rather, the Board finds the Veteran's testimony credible; it is accepted as evidence of incurrence of left knee injury during active service. The Veteran consistently reported left knee pain during active service, treatment in active service, and continuing pain post-service. Military doctors were scarce at the time of the Veteran's service in World War II; treatment of left knee injury was performed by a pharmacist's mate aboard ship. The evidence reflects several years of left knee pain and functional loss due to pain. At worse, the evidence is in equipoise. Accordingly, service connection is warranted for chronic left knee pain attributed to active service. Right Knee In contrast, service treatment records do not reflect any findings or complaints of right knee disability, to include arthritis; nor is there evidence of trauma or injury to the right knee. His discharge examination in July 1946 reveals no right knee disability. Post-service records, dated in March 2018, show a known popliteal cyst in right knee region. A history of bilateral knee pain for quite some time was documented in August 2019; the assessment was degenerative joint disease of bilateral knee. In August 2020, the Veteran testified that his right knee really did not hurt in in active service; rather, over the years it had gotten worse. His daughter testified that the Veteran wore special shoes, which were heavier and provided more support, because his feet were in much pain. Pursuant to the Board's September 2020 remand, the Veteran underwent a VA examination in March 2021. Knee joint osteoarthritis was diagnosed. As noted above, the examiner opined that bilateral knee osteoarthritis was less likely than not incurred in or caused by active service; age-appropriate osteoarthritis was documented in 2019i.e., several decades after discharge from active service. In this case, the evidence does not reveal any right knee disability during active service; or that arthritis of right knee manifested within one year after the Veteran's separation from active service in July 1946. As such, he is not entitled to direct or presumptive service connection. While the Veteran is competent to describe his symptoms, the evidence does not reveal any disease or injury of the right knee during active service. The Veteran specifically denied that his right knee hurt in active service. Even assuming the Veteran was treated for recurrent knee pain at times, there is no evidence of chronicity of care following active service. An alternative route to direct service connection for right knee disability, to include osteoarthritis, is not demonstrated. Walker, supra. The Veteran also contends that his right knee disability is secondary to service-connected pes planus. The March 2021 examiner opined that bilateral knee osteoarthritis was less likely than not proximately due to or the result of the Veteran's service-connected pes planus. No correlation between pes planus and right knee disability was found. The objective evidence does not support a finding of service incurrence. Barr, 21 Vet. App. at 307. The Board finds the March 2021 opinion probative; it is broad enough to reflect neither causation nor aggravation. In essence, no examiner has associated the Veteran's current right knee disability, to include osteoarthritis, with service-connected disease or injury. In short, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against granting service connection. On this matter, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Lumbar Spine In September 2020, the Board remanded the matter for additional development. Unfortunately, the resulting medical examination and nexus opinion are inadequate, and remand is required for compliance with the Board's remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the September 2020 Board remand, the Veteran underwent a VA examination in March 2021. The examiner endorsed a current diagnosis of low back scar and noted that the Veteran was a poor historian. The examiner stated that the Veteran was very frail and therefore he did not perform testing. No back disability, aside from the scar, was diagnosed, and hence no nexus opinion was rendered. In May 2018, the Veteran reported that he served aboard ship that required heavy lifting and carrying of gear and supplies on pitching and rolling decks. In August 2020, the Veteran testified that he went to a doctor for lumbar pain when he was in San Francisco before going aboard ship and was giving exercises to do. He testified that his lumbar pain was better before leaving San Francisco. The Veteran was bothered with lumbar pain throughout service. He underwent lumbar surgery approximately six years ago. Consequently, a remand is required to provide the Veteran with examination or medical review in order to comply with VA's duty to assist. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Heart The Veteran contends that service connection is warranted for heart disability. He testified that he did not have any heart problems in active service. He assisted with maintenance aboard ship and was exposed to lead from chipping paint and other chemicals. He also was exposed to asbestos. Immediately after the atomic bomb was dropped, he served as a member of occupational forces in Yokohama, Japan. The Veteran is competent to describe his duties. Records dated in August 2019 show a past medical history of heart disease and hypertension. More recent records show an assessment of benign essential hypertension in July 2020. Atrial fibrillation was diagnosed in March 2021. While a diagnosis of heart disability was not rendered during the March 2021 VA examination, VA treatment records during the pendency of the appeal include a diagnosis of atrial fibrillation. Consequently, a remand is required to provide the Veteran with examination or medical review in order to comply with VA's duty to assist. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The matters are REMANDED for the following action: 1. Request that the Veteran provide properly executed releases for any private care providers who have treated him surgically for lumbar disability since 2010. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Obtain the Veteran's VA treatment records for the period from August 2021 to the present. 3. Schedule VA examination or medical review, as appropriate, to determine the nature and etiology of the Veteran's lumbar spine disability. The claims file must be available and reviewed in such regards. Specifically, the examiner must opine as to whether any lumbar spine disability, to include surgical residuals, is at least as likely as not related to in-service injury or disease, including "heavy lifting and carrying of gear and supplies on pitching and rolling decks" in active service as credibly reported by the Veteran; or otherwise caused or aggravated by service or a service-connected disability, including bilateral pes planus and/or left knee pain. If physical examination remains contraindicated, and evidence of record fails to include radiographic studies of the back, such should be obtained to verify clinical impressions of arthritic changes. A full and complete rationale for opinions expressed is required. 4. Schedule VA examination or medical review, as appropriate, to determine the nature and etiology of the Veteran's heart disability, including atrial fibrillation. The claims file must be available and reviewed in such regards. Specifically, the examiner must opine as to whether any heart disability is at least as likely as not related to in-service injury or disease, including exposures to toxic chemicals and asbestos aboard ships in active service, as well as potential exposure to radiation as a member of occupation forces in World War II. A full and complete rationale for opinions expressed is required. 5. Then, readjudicate the claims on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and return the appeal to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary C. Suffoletta 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.