Citation Nr: 21071783 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-39 652 DATE: December 1, 2021 ORDER Service connection for osteoarthritis of the left knee as secondary to service-connected right knee disability is denied. Service connection for degenerative arthritis of the lumbar spine as secondary to the service-connected right knee disability is denied. FINDINGS OF FACT 1. The Veteran is currently service connected for osteoarthritis of the right knee. 2. The Veteran has a current disability of osteoarthritis of the left knee. 3. The osteoarthritis of the left knee is not caused by, or increased in severity beyond the natural progress of the disease by, the service-connected osteoarthritis of the right knee. 4. The Veteran has a current disability of degenerative arthritis of the lumbar spine. 5. The degenerative arthritis of the lumbar spine is not caused by, or increased in severity beyond the natural progress of the disease by, the service-connected disability osteoarthritis of the right knee. CONCLUSIONS OF LAW 1. The criteria for service connection for osteoarthritis of the left knee as secondary to the service-connected right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for service connection for degenerative arthritis of the lumbar spine as secondary to the service-connected right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps during Peacetime and the Gulf War Era from August 1986 to August 1990. The Veteran filed a claim for service connection for the left knee and lumbar spine, both as secondary to the right knee, in August 2013. The claim was denied in a February 2014 Rating Decision. The Veteran filed a timely appeal, with a request for a hearing before the Board. See July 2017 Form 9. A hearing was held in August 2021, before the below-signed Veterans Law Judge. Service Connection Legal Authority Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran is currently service connected for osteoarthritis of the right knee ("right knee disability"). Service connection for the right knee disability has been effective since September 2008. 1. Service connection for osteoarthritis of the left knee as secondary to osteoarthritis of the right knee The Veteran contends that the osteoarthritis of the left knee is caused by the service-connected right knee disability, raising a secondary service connection theory under 38 C.F.R. § 3.310. The Veteran contends that the pain in the right knee caused him to overcompensate with the left knee, culminating in a disability to the left knee in November 2013. See December 2013 VA Treatment Records; August 2021 Board Hearing Transcript. The Board finds that the Veteran has a current disability of osteoarthritis of the left knee ("left knee disability"). The diagnosis was most recently confirmed at a May 2017 VA examination. After weighing the evidence, lay and medical, the Board finds that the left knee condition is not caused by, or increased in severity beyond the natural progress of the disease by, the service-connected right knee disability. The Veteran has consistently reported that the left knee pain began in earnest in November 2013, when he stepped up a curb with the left leg and heard a pop. Of note, this injury does not involve the right knee disability in any way, as the Veteran was using the right leg simple to bear weight while he stepped up to the curb with the left leg. The movement of the left leg and knee, and its relationship to landing on or against the curb, was the source of the injury; thus, the right knee disability was not an actual cause, much less, the proximate cause of the November 2013 post-service left knee injury. VA treatment records from December 2013 show the Veteran seeking treatment for left knee pain, swelling, and decreased range of motion. The December 2013 record has the Veteran reporting stepping up the curb, feeling a pop in his left knee, followed by the left knee giving out and the Veteran nearly falling. This story is repeated in the record, including in July 2014 VA treatment records and at the August 2021 Board Hearing. The consistent descriptions of the left knee injury are important, as the injury as described does not, as a factual matter, involve the right knee disability. Using the left knee to step up a curb because the right knee hurts explains the motive for using the left leg, but otherwise the stepping on the curb with the left leg has no link to the right knee that, at the time was planted on the ground and bearing weight for the left leg and knee to be raised to the curb. There is no indication from the description, testimony, or logistical description as to any involvement of the right knee disability in causing the post-service left knee injury in 2013. The differently reported versions of the 2013 left knee incident and injury all describe direct action of the left leg lifting and stepping against the curb, causing left knee movement and injury, with no involvement of the right knee. The Veteran has not described how the right knee was involved in the injury to the left knee. For example, the Veteran does not describe that an altered gait from the right knee caused the left knee injury, or that the right knee gave way or any other abnormal right knee action that could have affected the left knee injury. Instead, the Veteran consistently describes a left knee injury that was caused by the left leg motion that impacted against the curb. See e.g., August 2021 Board Hearing Transcript. A VA examiner tendered a medical nexus opinion in February 2014, opining that it was less likely than not that the left knee disability was caused by the service-connected right knee disability. The VA examiner reasoned that the medical evidence does not support this secondary causal connection. Another VA opinion was obtained in June 2017. The examiner also opined that it was less likely than not that the left knee disability was caused by the right knee disability. The VA examiner noted no gait abnormalities caused by the right knee disability that would impact the left knee. The VA examiner also noted that left knee disability and the service-connected right knee disability are separate and uncorrelated. The Veteran obtained a private opinion in July 2020. The private examiner opined that the left knee is more likely than not secondary to the service-connected right knee disability. The rationale of the opinion was that the right knee injury progressed over the years leading to surgeries in 2010 and 2016, and the resulting painful gait the Veteran developed due to the right knee disability negatively impacted the biomechanics of movement in the left knee. The resulting poor biomechanics and arthritis of the right knee thus affected the left knee. VA examinations have also noted histories from the Veteran of having an antalgic gait. See February 2014 VA Examination. However, examining the totality of the evidence, the Board finds the two negative VA opinions are more persuasive than the private opinion. The evidence clearly documents (and the Veteran does not aver otherwise) that the November 2013 injury to the Veteran's left knee was the likely primary cause of the current left knee disability. While the evidence indicates that the Veteran believed that the right knee problems may have played a role in the left knee injury VA treatment records from December 2013 indicate that the Veteran was asking the medical providers whether overcompensation due to the right knee pain may have been a cause of the November 2013 injury there is no factual link between this left knee injury and the right knee disability, as the action on the left knee from stepping on the curb is factually and causally disconnected from the right knee disability. This is not a medical question, but simply a factual question, as there is not even a facially plausible story as to how the right knee even could have acted on the left knee to cause the 2013 left knee injury when the Veteran used the left knee to misstep onto a curb. The two VA opinions essentially assert that overcompensation due to the right knee is not a proximate cause of the November 2013 injury, and that the etiology of the left knee condition is unconnected with the right knee condition. The weakness of the private opinion is that the private examiner describes the basis of the left knee disability as due to progressive biomechanical issues from the assumed painful gait of the right knee, not accounting for the fact of the left knee injury when stepping on a curb with the left knee that is factually unrelated to any action or inaction involving the service-connected right knee disability. This is an omission of significant fact of post-service knee injury in 2013 that, by omission, renders the private opinion reliant upon an inaccurate factual history. The private opinion is thus of limited value, as the opinion does not address why the post-service left knee injury in 2013 is not the cause of the current left knee arthritis. For the reasons described above, the Board finds that a preponderance of the lay and medical evidence is against the Veteran's claim for service connection for the left knee disability as secondary to the service-connected right knee disability. For these reasons, the appeal must be denied. 2. Service connection for degenerative arthritis of the lumbar spine as secondary to osteoarthritis of the right knee The Veteran contends that the degenerative arthritis of the lumbar spine is caused by the service-connected right knee disability, raising a secondary service connection theory under 38 C.F.R. § 3.310. The Veteran contends that the pain in the right knee caused him to overcompensate with his left knee, culminating in an injury to the left knee in November 2013 that in turn resulted in lingering back pain. See December 2013 VA Treatment Records; August 2021 Board Hearing Transcript. The Board finds that the Veteran has a current disability of degenerative arthritis of the lumbar spine ("lumbar spine disability"). The diagnosis was most recently confirmed in a May 2017 VA examination. After weighing the evidence, lay and medical, the Board finds that the lumbar spine disability is not caused by, or increased in severity beyond the natural progress of the disease by, the service-connected right knee disability. The Veteran reported that the lumbar pain began around the same time as the November 2013 left knee injury, which, as discussed above, is not factually connected to the service-connected right knee disability. See August 2021 Board Hearing. The claimed connection between the lumbar spine disorder and the right knee disability is more attenuated than the connection between the left knee and the right knee. As noted above, the injury consisted of the Veteran stepping up a curb with his left leg, and then feeling a pop in his left knee. The Veteran has consistently reported that he almost suffered a fall, but was able to catch himself beforehand. As the Veteran did not end up falling or landing on his back, not even a facially plausible assertion of connection has even been proffered between the post-service left knee injury in 2013 (and thus, as the Veteran argues, the right knee disability) and the current lumbar spine disability. A VA examiner tendered a medical nexus opinion in February 2014. The VA examiner opined that it was less likely than not that the lumbar spine disability was caused by the service-connected right knee disability. The VA examiner noted that the medical evidence does not support this secondary causal connection. Another VA opinion was obtained in June 2017. The VA examiner also opined that it was less likely than not that the lumbar spine disorder was caused by the right knee disability. The VA examiner noted no gait abnormalities caused by the right knee disability that would impact the lumbar spine. The VA examiner also noted that lumbar spine disorder and the right knee disability are separate and uncorrelated. The Veteran obtained a private purported opinion in July 2020. The private examiner opined that the lumbar spine is more likely than not secondary to the service-connected right knee disability. The rationale of the opinion was that the right knee injury progressed over the years leading to surgeries in 2010 and 2016, and the resulting painful gait the Veteran developed due to the right knee negatively impacted the biomechanics of movement in the lumbar spine. The resulting poor biomechanics and arthritis of the right knee thus affected the lumbar spine. As outlined, the weight of the lay and medical evidence is against a link between the left knee injury and the lumbar spine disability. The remaining question then is whether there is any other mechanism by which the right knee disability caused the lumbar spine disability. Similar to the left knee disability, VA examinations have recorded the Veteran's reports of an antalgic gait, notwithstanding that since 2013 he has had bilateral knee disabilities, which undercuts the suggestion of favoring the right knee in favor of overuse of the left knee (which was itself injured in 2013). See February 2014 VA Examination. Examining the totality of the evidence, the Board finds the single positive private nexus opinion is outweighed by the two negative VA nexus opinions. Both VA examiners did note the Veteran's reports of antalgic gait, including that the gait was due to the right knee, but, even assuming such a fact that is questionable after the 2013 post-service left knee injury, neither examiner opined that this reported gait alteration had any causal connection to the lumbar spine disability. For the reasons described above, the Board finds that a preponderance of the lay and medical evidence is against the Veteran's claim for service connection for the lumbar spine disability as secondary to the service-connected right knee disability. For these reasons, the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Charles Plambeck 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.