Citation Nr: 21068884 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 16-35 652A DATE: November 15, 2021 ORDER Service connection for right knee degenerative joint disease (DJD), to include as secondary to service-connected left knee DJD with meniscal tear, chondromalacia, and tendinopathy, is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the right knee degenerative joint disease was caused or aggravated beyond its natural progression by the service-connected left knee degenerative joint disease with meniscal tear, chondromalacia, and tendinopathy. CONCLUSION OF LAW The criteria for service connection for right knee DJD, to include as secondary to service-connected left knee DJD with meniscal tear, chondromalacia, and tendinopathy, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 1999 to June 2003. The Veteran had additional service as a Reservist in the Marine Corps Reserves and Naval Reserves from June 5, 2003, to August 27, 2007. This matter comes to the Board of Veterans' Appeals (Board) from an October 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which reopened the previously denied right knee claim and denied it on the merits. The Veteran's right knee service connection claim was previously denied in an unappealed August 2008 rating decision. Generally, the RO's decision to reopen the claim is not binding on the Board and, consequently, the Board is obligated to consider the issue of new and material evidence and make an independent determination. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In this case, however, the matter reached the Board twice, in February 2019 and May 2021, where the Board remanded the merits of the right knee claim for further development, to include obtaining a VA examination and medical opinion. Accordingly, the Board finds these prior determinations implicitly found the new and material evidence sufficient to reopen the previously denied right knee claim and the matter will not be further addressed here. Substantial compliance with the remand requests having been achieved, the Board may proceed to consider the claims. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). The Board notes that medical evidence was submitted by the Veteran after issuance of the Supplemental Statement of the Case (SSOC) but before transferal of the case to the Board. See 38 C.F.R. § 19.37(a). However, as the claim is being granted in full, there is no prejudice to the Veteran if the Board considers the evidence in the first instance. Service Connection The Veteran contends that his right knee degenerative joint disease has been caused or aggravated by his service-connected left knee degenerative joint disease. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Alternatively, service connection may be established under 38 C.F.R. § 3.303 by (a) evidence of (i) the existence of a chronic disease, such as arthritis, in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is compensable. 38 U.S.C. § 1131; 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See Id. In deciding 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 of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. The Veteran's service treatment records (STRs) document that the Veteran was treated for and complained of left knee pain and a left knee lateral meniscal tear on or around September 2001. At that time, the Veteran indicated he had previously torn his left knee meniscus in 1993, prior to service, playing sports in high school. Relevantly, however, in all of the treatment records documenting left knee pain and treatment, the Veteran's right knee was assessed as normal. The Veteran never complained of any right knee manifestations nor was he ever seen specifically for right knee treatment. His February 2003 exit examination, moreover, is further silent as to any right knee abnormalities nor did the Veteran, at that time, complain of any such problems. To the contrary, the exit examination reflects he denied suffering a bone joint or other deformity or a "trick" or locked knee. He reported being in better health than his last physical, denied having a condition which currently limited his ability to work in his primary military specialty as a cook or required assignment limitation, and asserted that at present he did not intend to seek VA disability benefits. An examination in August 2003 upon his enlistment in the reserves, similarly, revealed no abnormalities of the lower extremities. After service, the Veteran was afforded a VA examination in January 2008 where the examiner noted a left knee meniscectomy in 1993 due to injury playing sports prior to service. At that time, the examiner noted degenerative arthritis of the bilateral knees. His posture and gait were normal, however, and his legs and feet showed no signs of any abnormal weight bearing. The examination report indicates degenerative arthritic changes are shown in the bilateral knees on x-rays. It is noteworthy, however, that subsequent right knee x-rays taken in June 2008 were entirely within normal limits, showing no abnormalities of the right knee. At that time the June 2008 VA examiner only noted limitation of motion findings on examination, but no right knee diagnosis was indicated. His posture was normal, but the examiner did note an abnormal gait due to a limp of his left leg. The examiner found no indications of abnormal weight bearing or breakdown. In an August 2008 rating decision, service connection for the right knee was denied whereas the Veteran was service connected for his left knee degenerative joint disease, effective from May 2007. After the Veteran filed his claim to reopen, he was provided another VA examination in October 2014 where he reported pain, swelling, and stiffness in his right knee and maintained that it was due to severe pain in his left knee had which caused overcompensation and overuse of his right knee. His ROM was abnormal; initially flexion was at 120 degrees, though there was no evidence of painful extension, and after repetition flexion was at 130 degrees but no degree of hyperextension. The examiner found no loss of muscle strength, no instability, and no subluxation, though he did detect crepitus and popping with flexion. X-rays disclosed mild tricompartmental degenerative change and a lateral tilt on the right side. The examiner concluded that the Veteran's right knee degenerative joint disease was not likely directly connected to his military service. He observed that the Veteran's medical records during service showed no complaints about his right knee, and thus were not directly connected to his military service. He further opined that it was not likely that the Veteran's right knee degenerative joint disease was secondarily connected to his service-connected left knee degenerative joint disease. The medical literature did not support the theory that degenerative joint disease in one joint will cause degenerative joint disease in another, he explained. He observed further that the majority of medical evidence available indicated that an injury in one extremity rarely causes a major problem in the opposite or uninjured extremity, except when damage to the leg results in a major displacement of the center of gravity of the body while walking, or significant a significant shortening of the injured limb and the abnormal gait pattern has been present for an extended period of time. The Veteran, he emphasized, did not show evidence during the exam or in his medical records of a significant shortened limb or a gait consistent with a Trendelenburg lurch. Two years later, in October 2016, X-rays showed moderate left and mild right tricompartmental degenerative changes in both his knee joints. An examination in December 2017 revealed that the Veteran's ROM in his right knee was normal (flexion 0 to 140 degrees and extension 140 to 0 degrees) with no pain noted and no objective evidence of crepitus. There was no loss of ROM upon repetitive use. Muscle strength was normal and the examiner observed no atrophy, ankylosis, subluxation, or instability. Almost a year later, in October 2018, magnetic resonance imaging (MRI) of the right knee by a private imaging service revealed tricompartmental arthropathy, mild subchondral edema, and a narrowing of the lateral aspect of the patellofemoral compartment. An examination in 2019 conducted prior to the Veteran's beginning physical therapy, the ROM in his right knee was assessed 112 degrees flexion and 6 degrees extension. Flexibility was decreased in the quadriceps of both knees. Muscle strength in the right knee was rated good to normal. The therapist noted an abnormality to the Veteran's gait which she ascribed to degenerative joint disease changes in both knees. The Veteran reported months later in June 2019 that the therapy helped him "a lot" and added that steroid injections had produced "good results." In compliance with a remand from the Board, after an in-person examination and record review in August 2019, a VA examiner re-confirmed that the Veteran had degenerative arthritis in both knees. The ROM in his right knee, the examiner noted, was abnormal (flexion 0 to 135 degrees and extension 135 to 0) but did not contribute to his functional loss, which the Veteran described as pain and difficulty walking or standing for long periods of time. He reported sharp pain in his knee which the examiner ascribed to his arthritis. There was no additional functional loss after repetition and the Veteran reported no flare-ups. Muscle strength was normal, with no atrophy, ankylosis, subluxation, or instability. Imaging confirmed the presence of degenerative joint disease in both knees, which the examiner characterized as bilateral tricompartmental arthritis. The examiner opined that it was less likely than not that the claimed right knee degenerative joint disease was proximately due to or the result of the Veteran's service-connected left knee degenerative joint disease. He explained that the arthritis in the right knee was a "separate entity entirely" from the service-connected left knee degenerative joint disease and unrelated to it, adding that the medical literature did not support a medical relationship between the two. Thus, there was no nexus between the occurrence of each, he concluded. The common causes of knee arthritis, he expounded, are aging, gender, weight, and previous injury. In the Veteran's case, he did not injure his right knee in service, but developed degenerative joint disease later "due to wear and tear and [the] aging process." The right knee arthritis, he reemphasized, was a different entity and separate from the service-connected left knee arthritis. Therefore, the right knee degenerative joint disease was less likely than not proximately due to the service-connected left knee degenerative joint disease and was less likely than not aggravated beyond its natural progression by the service-connected degenerative joint disease in his left knee. An examination in March 2020 as part of his therapy program showed the Veteran's right knee had extension and flexion beyond 110 degrees and that the knee was stable. The therapist assessed bilateral knee tricompartmental osteoarthritis. At a VA examination of his right knee in July 2021 the Veteran complained of moderate to severe pain while standing and walking for a long time. The examiner assessed that he suffered mild degenerative joint disease in both knees. His right knee ROM was sufficiently outside the normal range (flexion 90 degrees, extension 0) that bending without pain was limited. The examiner found evidence of crepitus, but no localized tenderness or pain. He also observed a loss of function after repetitive use (flexion 85 degrees, extension 0 degrees), with pain, fatigability, weakness, lack of endurance, and incoordination, and estimated another five and 10 degrees less flexion and extension with repetitive use over time or with flare-ups, respectively. No muscle atrophy was noted, however, nor was ankylosis, subluxation, or instability detected. The examiner concluded that the Veteran's right knee degenerative joint disease was less likely than not proximately due to or the result of the Veteran's service-connected left knee degenerative joint disease. He stated that there is no clear evidence from the review of orthopedic literature 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 major muscle or nerve damage causing partial or complete paralysis, or a shortening of the injured limb resulting in length discrepancy of more than 5 centimeters so that the individual's gait patten has been altered to the extent that clinically there is an obvious Trendelenburg gait. Such circumstances, he observed, were not indicated by the exam, the Veteran's history, or his medical records. Joint disease in one joint, he added, does not spread to another or cause damage to it. For the same reasons, the examiner determined that it was less likely than not that the Veteran's right knee degenerative joint disease was aggravated beyond its natural progression by his service-connected left knee degenerative joint disease with meniscal tear, chondromalacia, and tendinopathy. In August 2021 the Veteran filed a letter from a private physician who had reviewed the Veteran's medical records. The doctor opined that it was at least as likely as not that the Veteran's right knee degenerative joint disease was aggravated beyond the normal degree of its progression by his service-connected left knee degenerative joint disease with meniscal tear, chondromalacia, and tendinopathy. After reviewing the Veteran's service and medical history, the doctor observed that the Veteran's degenerative joint disease, chondromalacia, and tendinopathy caused impairment in the Veteran's mobility that would cause extra stress on his knees, as evidenced by a history of episodes of swelling, pain, and tenderness that limited motion. While such stress and limited mobility might not produce a permanently altered gait, even intermittent limping or overcompensation on the right knee during periods of pain or limited mobility in the left knee would unduly stress the right as it was forced to bear more weight. In the Veteran's case, he opined, the overcompensation pattern occurred whenever the Veteran had to replace his normal walking mechanics with a different approach that helped him to limit the amount of weight placed on his debilitated left knee. The Veteran's left knee disability thus weakened the muscles and joints in his left leg, which in turn caused him to overcompensate with the opposite leg, worsening the wear on his right leg as it bore more weight. He cited studies of "overuse injuries" recognized in the medical literature in support of his rationale. Service connection for right knee degenerative joint disease, to include as secondary to service-connected left knee degenerative joint disease with meniscal tear and tendinopathy, is granted. The Board finds that the evidence is in equipoise and, therefore, service connection for right knee degenerative joint disease, to include as secondary to service-connected left knee degenerative joint disease with meniscal tear and tendinopathy is warranted. While the Veteran's left knee complaints and treatment are well documented in his military records, the Veteran expressed no complaints about his right knee while on active service or at separation, and the examiner assessed his knee as normal at separation. The medical opinions of record appear to be in consensus that there is no basis to attribute the Veteran's current right knee DJD directly to any incident of his military service in light of the lack of any in-service injury, complaint, treatment, or diagnosis. Indeed, the Veteran does not appear to contend he incurred a right knee condition in service. Rather, the medical opinions of record appear to be in conflict as to whether his post-service diagnosis of right knee DJD, first confirmed by x-ray well over one year after service, was aggravated by his service-connected left knee, specifically due to abnormal weight bearing caused by limping or gait disturbances. On the one hand, VA examiners within reports dated October 2014, August 2019, and July 2021 all opine that a relationship between the service-connected left knee and right knee is unlikely given that there was no significant evidence that the Veteran's left knee caused chronic gait disturbances such as a leg length discrepancy, wear patterns on his shoes, instability, or muscle atrophy. The July 2021 examiner, in particular, directly addressed whether the additional weight-bearing in the Veteran's right knee may have aggravated his degenerative joint disease. The examiner rejected the contention, offering a clearly stated rationale supported by reference to the medical literature. On the other hand, the private examiner's opinion, submitted in August 2021, noted that even temporary flare-ups causing intermittent limping, compensating, shifting, and adjusting over time has changed the Veteran's normal body mechanics. Thus, it is "at least as likely as not" that the left knee disability aggravated his right knee condition due to intermittent limping. The examiner acknowledged that there may not be a "severe" or even a "permanently altered gait," but the intermittent compensation over time had put undue stress on the right leg. The private opinion was supported with a clear rationale supported by numerous references to supporting medical literature. In short, all medical opinions of record seem to be in accord that the Veteran did not incur a right knee disability in service or that a right knee disability was caused by his service-connected left knee disability. All medical opinions also seem to be in agreement that the Veteran's left knee disability is not manifested by permanent or severe gait disturbances. While the VA examiners find this fact to be dispositive on the aggravation issue, the private examiner noted that intermittent gait disturbances can still be significant and, ultimately opined that these intermittent gait disturbances caused by flare-ups of service-connected left knee pain "at least as likely as not" aggravated the Veteran's right knee disability beyond the natural progression. All medical opinions of record have been supported with thorough rationale and the Board has no reason to favor one over another. As such, the Board finds the evidence to be, at a minimum, in equipoise. As the issue is in equipoise, the benefit of the doubt rule must be applied. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. At 53. Accordingly, service connection for right knee degenerative joint disease, to include as secondary to service-connected left knee degenerative joint disease with meniscal tear, chondromalacia, and tendinopathy is warranted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Wilkinson, Edward L. 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.