Citation Nr: 21071844 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 19-12 405A DATE: December 1, 2021 ORDER Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a left knee disability is granted. REMANDED Entitlement to service connection for a left ankle disability is remanded. FINDINGS OF FACT 1. A right knee disability is as likely as not attributable to service. 2. A left knee disability is as likely as not attributable to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left knee disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1986 to June 1991. Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as arthritis, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran appeals the denial of service connection for a right and left knee disabilities. The Veteran argues during service he worked as a communicator maintainer and that he regularly had to climb towers and "in and out of tanks and other heavy equipment to include emergency vehicles." He reports that he has had both knees replaced since service. Service treatment records show that in August 1988 the Veteran was treated for complaints of left knee pain. The April 1991 separation examination disclosed normal findings for the lower extremities. At that time, however, the Veteran reported knee pain, and "cramping" with "couching." In May 2015, the Veteran reported that he injured his right knee two days prior. It was noted that there was no known injury and that he was unable to bear weight since that time. In relation to his claim, the Veteran was afforded a VA examination in February 2017. The Veteran was diagnosed with bilateral knee meniscal tear, right knee joint osteoarthritis, right knee fracture and patellofemoral chondromalacia. The examiner stated that the Veteran never received a diagnosis of a bilateral knee condition in service and that the April 1991 examination is silent for a bilateral knee condition. The Veteran reported that he injured his right knee when he slipped and slammed it against the tailgate of a truck while in Germany in approximately 1987 or 1988. The Veteran further stated that his left knee became painful later and he believes the pain developed due to compensating for the right knee. The VA examiner noted that the Veteran's exit examination in April 1991 is silent for a left knee condition and that the currently available evidence of record indicates that he initially mentioned a left knee condition at an examination at Beacon Orthopedics and Sports Medicine in May 2013 and he mentioned the right knee in February 2011. The VA examiner opined that was less likely as not (less than 50/50 probability) that the Veteran has a left and/or right knee condition that was incurred in or caused by the left/right knee injury in service. The examiner reasoned that there is nothing located in the currently available evidence of record regarding continuous symptoms, complaints or treatment of a left knee condition by the evidence of record. In July 2017, another VA examiner opined that the Veteran's current s/p bilateral total knee arthroplasty s/p meniscus tears and patellofemoral chondromalacia were less likely as not (less than 50/50 probability) incurred in, caused by or a result of service by the evidence of record. The examiner stated that the Veteran's service treatment records note a left knee contusion in August 1988 with a negative x-ray and that he was seen on August 30, 1988 for a possible meniscus tear of the left knee. The examiner stated that the separation examination in April 1991 noted "knee pain - cramps with crouching" but there is no diagnosis of a knee condition until after 2000 which is nine years after separation. He was not diagnosed with arthritis or meniscus injuries until 2011. The examiner found that there was no evidence to support that the Veteran's current bilateral meniscus tears and patellofemoral chondromalacia were diagnosed or manifested during service and there is no chronicity of complaints and care to link sporadic complaints of knee and popping pain during service to bilateral meniscus tears, patellofemoral chondromalacia, or osteoarthritis. In April 2017, however, private examiner Dr. C stated that the Veteran was ten months out of left knee total knee and 11 months out of right knee, and that he was still having some pain. Dr. C stated that it seems like the knee replacements were the culmination of injuries and problems that the Veteran began sustaining from 1986 to 1991 while in service in the U.S. Army. Dr. C further stated that "it seems to be the beginning of the problem which eventually would progress through acute injury into arthritic changes and kind of finally ending with knee replacement surgery." So, after reviewing the history, Dr. C found that "there is a distinct timeline from injury during the service to where he is today with having bilateral knee replacements." In April 2018, M.D., who served with the Veteran from March 1987 to March 1988, expressed that while serving with the Veteran numerous training events and deployments occurred. He recalled that the Veteran suffered from knee pain since the first physical fitness run and due to the intensity of training the Veteran was forced to miss several training events and deployments due to his injuries. During his February 2021 Board hearing, the Veteran stated that in 1987 or 1988 his knees began to crack and pop which caused pain. He further expressed that he injured his left knee in August 1988 but that his knees were hurting before then. The Veteran essentially stated that his knee pain started in service and it has continued since that time. Here, the Board has weighed the positive and negative evidence of record, and in resolving reasonable doubt, the Board finds in favor of the claim for entitlement to service connection for a left and right knee disability. Although the Veteran's disabilities were not formally diagnosed in service, positive evidence has been submitted showing a link between the Veteran's service and his current left and right knee disabilities. In so finding, the Board notes that while the VA examiners found that it is less likely as not that the Veteran's disability was related to service, the Board notes that the opinions do not take in account the Veteran's report of continuity of symptomatology. The credible lay statements of record in conjunction with the medical opinion from Dr. C place the evidence at least in equipoise. Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran. 38 U.S.C. § 5107(b); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. Accordingly, resolving reasonable doubt in his favor, service connection for a right and left knee disabilities is granted. REASONS FOR REMAND The Veteran appeals the denial of service connection for a left ankle disability. During his February 2021 Board hearing, the Veteran stated that he sprained his left ankle when he tripped going down a flight of stairs during service in 1987. Service treatment records show complaints of left ankle sprain in January 1987 and March 1987. Strain left ankle was noted in May 1990, ankle pain was noted in July 1990 and chronic sprain to left ankle was shown in August 1990. During the February 2017 VA examination, the Veteran was diagnosed with left tendonitis. The Veteran reported that he injured his left ankle in basic training in approximately 1986 at Fort Sill. He stated that he was descending a flight of steps and slipped twisting the left ankle but he did not mention the injury until he arrived at AIT in 1987. The VA examiner opined that the Veteran had a diagnosis of a left ankle condition that is at least as likely as not (50 percent or greater probability) incurred in or caused by the left ankle sprain during service by evidence of record as it has resolved as there is nothing located in the currently available evidence of record regarding continuous symptoms, complaints or treatment of a left ankle complaints. In July 2017, the VA examiner opined that the Veteran's left ankle tendonitis and history of recurrent sprains was less likely as not (less than 50/50 probability) incurred in, caused by or a result of service by evidence of record. While the Veteran was noted to have left ankle tendonitis and recurrent ankle sprains during service, the examiner stated that these resolved without residuals as his separation examination in April 1991 was silent for a left ankle condition and the currently available evidence of record is silent for a left ankle condition since separation. The examiner found that there is no evidence of chronicity of complaints or care for an ankle condition since separation. The Board notes, however, that while the July 2017 VA examiner found that it was less likely as not that the Veteran's disability is related to service, the opinion does not take into account the Veteran's report of continuity of symptomatology. The Veteran essentially argues that his left ankle pain started in service and it has continued since that time. As such, the Board finds that the opinion is inadequate to address the claim for service connection and that another examination on this matter is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to address the nature and etiology of his left ankle disorder. The examiner is to be provided access to the electronic record. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. For each left ankle disorder diagnosed during the examination and/or in the record, the examiner must opine whether it is at least as likely as not (50 percent probability or more) that any diagnosed disorder is attributable to service. In doing so, the examiner must consider (a) the several notations of left ankle sprains and pain during service and (b) the Veteran's report that his left ankle pain started in service and it has continued since that time. The examiner is requested to discuss whether there is any medical reason to accept or reject the Veteran's contentions that the left ankle pain/sprains shown in service and continuing after service (although undocumented) results in the currently manifested disability of the ankle. A complete rationale for any opinion should be provided. The examiner must not rely solely on the absence of a diagnosis or symptom in service as the basis for a negative opinion. It is also noted that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists. Any opinion should be reconciled with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran. If the lay evidence is rejected, an explanation must be provided. If an opinion cannot be made without resort to speculation, please state so and include an explanation for that conclusion. 2. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and allow an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S Willie 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.