Citation Nr: 21072068 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-35 707 DATE: December 2, 2021 ORDER Entitlement to service connection for left knee arthritis is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran has experienced symptoms of left knee arthritis since service. CONCLUSION OF LAW The criteria for entitlement to service connection for left knee arthritis have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1972 to April 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO). The Board previously remanded this claim for additional development in February 2019, June 2020, and May 2021. As will be discussed in more detail below, the Board finds substantial compliance with the May 2021 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also notes additional development has been completed since the most recent August 2021 Supplemental Statement of the Case (SSOC). The development, however, pertains to unrelated claims for benefits. Regardless, as this claim is being granted herein, the Board finds no harm in proceeding to resolution. 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). Entitlement to service connection for left knee arthritis is granted. The Veteran contends he has a left knee disability that was caused by or incurred during service or is secondary to service-connected residuals of stress fracture of right leg. The Board finds service connection is warranted. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In the event a Veteran has at least one service-connected disability, he or she may be entitled to benefits based on a secondary service connection. In order to establish a secondary service connection, the Veteran must show: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or aggravated beyond its natural progression by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 444 (1995). Here, the Veteran has contended his left knee disability is aggravated by his service-connected residuals of stress fracture of right leg with meralgia paresthetica. When service connection cannot be established on a presumptive or secondary basis, the Court has held that the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (1994). The elements of direct service connection are: "(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," also known as the nexus element. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Turning to the relevant evidence of record, the Board notes that it is the Veteran's contention that his left knee has bothered him ever since in-service 1973 motor vehicle accidents (MVAs). See, e.g., March 1995 Statement. As will be outlined below, the Veteran's STRs show some complaints of left knee pain in 1972, prior to the MVAs. The two different 1973 MVAs are also confirmed in the STRs along with various injuries, but the contemporaneous records do not show specific injury to the left knee at either time. Rather, the bulk of those records indicate unrelated injuries to the back and right shoulder. In particular, the Veteran's STRs show a normal entrance examination with no reported left knee issues. See September 1972 entrance examination and report of medical history. During service in November 1972, the Veteran complained of pain in the left knee. Imaging was ordered revealing no fracture. See November 1972 service treatment records (STRs). In December 1972, the Veteran complained of acute pain in the left knee with some edema. Thereafter, in March 1973, the Veteran was involved in a motor vehicle accident (MVA) after which he complained of back pain and was diagnosed with a whiplash injury and strain. See March 1973 STRs. There is no indication at this time that the Veteran indicated any left knee involvement related to the 1973 MVA. In April 1973, however, the Veteran reported experiencing left ankle pain conveying that he thought the left ankle was injured during the MVA. He was assessed with a left ankle strain. In June 1973, the Veteran was in another MVA while riding a motorcycle. See June 1973 STRs. He was noted to have experienced a laceration to the right buttock, lightheadedness, healing abrasions, and a right cervical sprain. Again, there is no indication that there was any left knee involvement related to this 1973 motorcycle accident. In fact, later in June 1973, the Veteran endorsed experiencing right shoulder pain and he continued to receive treatment for the right shoulder and back throughout June. The Veteran's April 1974 separation examination shows no abnormality of the lower extremities. See April 1974 examination. Immediately after service, the Veteran was treated for residuals of his vehicle injuries to include treatment in May 1974 for persistent numbness on the side of the right thigh and buttock with pain in the right hip. See May 1974 treatment records. The left knee was not indicated. The Veteran was first afforded a VA examination in September 1974 pertaining to the residual injuries of the 1973 motorcycle accident, which the examiner at that time noted included mainly his back. While the Veteran complained that "his left knee also hurts occasionally" there was "no demonstrable residuals of injury to the left knee" at the time of the September 1974 VA examination. In a July 1975 Report of Accidental Injury, the Veteran detailed the June 1973 MVA and stated that his right leg, shoulder, back, and head still bother him. See July 1975 Report. It is again noteworthy to highlight that these records do not indicate any complaints, manifestations, or diagnoses related to the left knee. In March 1980, the Veteran stated that his left knee injury started during service, the symptoms of which still bother him. See March 1980 Correspondence. In March 1999, over two decades after service, imaging of the bilateral knees was completed with minimal medial compartment joint space narrowing and an impression of minimal degenerative joint disease (DJD). See March 1999 treatment records. This assessment was confirmed again in 2000. See April 2000 VA treatment records. In 2001, the Veteran complained of pain in the left knee that he treats with over-the-counter medication. See December 2001 treatment records. In 2002, the Veteran conveyed being in a June 1973 MVA stating that he suffered a laceration to his right buttock, closed head trauma, and a questionable stress fracture to the right hip. See August 2002 treatment records. The Veteran did not, at that time, report any specific injury to his left knee related to the 1973 MVA. In 2013, the Veteran endorsed bilateral knee pain. He reported that he first began having problems with his right knee in the 1970s when he was involved in a MVA. He stated that he has "since developed problems with the left knee." See March 2013 VA treatment records. He was diagnosed with chronic bilateral patellofemoral knee pain. The Veteran has contended that he had intermittent problems over the years with the knees but relied upon over-the-counter medications. See March 2011 Statement. The Veteran was afforded a June 2016 VA examination, during which a diagnosis of left knee patellofemoral pain syndrome was noted. See June 2016 VA examination. The Veteran reported a gradual onset of knee pain beginning in 1975 that progressed. The examiner opined that no correlation can be made clinically or from the service records between the service-connected condition and the subsequent knee issues. On appeal, the Board found this examination inadequate because the Veteran's STRs noted the Veteran reported left knee pain in 1972 and the VA examiners of record failed to address the Veteran's in-service complaints of left knee pain. In accordance with the Board's remand directives, the Veteran was afforded another VA examination in January 2020 during which the VA examiner found the Veteran did not have a left knee disability. See January 2020 disability benefits questionnaire. The Veteran reported a date of onset of 1972. He was noted to be a poor historian. At that time, the Veteran could not recall any left knee injury or trauma to the left knee during service. STRs in 1972 noted medical encounters for left knee pain, but no apparent antecedent trauma or injury and the associated imaging was negative. The Veteran was involved in a MVA in June 1973, but no left knee injury was documented to be associated with that incident. The examiner noted imaging in 2013 was normal. The examiner opined that the physical examination revealed no objective evidence of a left knee condition and a nexus could not be established. The examiner opined it is less likely than not the Veteran's claimed left knee condition was incurred in or caused by service, to include consideration of his in-service complaints of knee pain. See January 2020 VA opinion. Upon review, the Board found the January 2020 VA examination inadequate because the examiner failed to address or consider the Veteran's treatment records noting a diagnosis of arthritis and / or consider the Veteran's left knee functional impairment as a disability for VA purposes. Accordingly, another VA opinion was obtained in September 2020 wherein the Veteran was noted to have a diagnosis of left knee joint osteoarthritis with an unknown exact date of onset and patellofemoral pain syndrome with an onset of 2016. See September 2020 VA examination. The Veteran reported that he less commonly has left knee pain. The examiner opined it is less than 50 percent likely that the Veteran's left knee condition has any nexus to the in-service motor vehicle accidents reasoning that there was no notation of any traumatic bony or ligamentous injury to the knees pursuant to the MVAs. There was no substantive objective information upon which the examiner could support such a nexus based upon the medical records of the incidents. Further, there was no clinical evidence of patellofemoral pain syndrome or DJD imaging until decades later, making it more likely that these diagnoses are due to age and body habitus. The examiner also opined that it is less than 50 percent likely the Veteran's left knee condition had a nexus to the right leg stress fracture with meralgia and paresthetica. The examiner reasoned that the condition did not have a significant effect on his gait pattern and the records in the years following his active duty service did not show any significant gait impairment which would cause a "flow through" or "aggravation" mechanism of causality. There was no evidence of chronicity of the stress fracture and meralgia paresthetic refers to a sensory nerve that does not control motor function and would not affect gait. The Board found the September 2020 VA examination to be inadequate because the examiner failed to address or consider the Veteran's lay statements including reports of left knee pain almost immediately after service including in 1974 and 1980 as well as the Veteran's statements of experiencing intermittent knee problems that he self-treated. Additionally, the September 2020 VA examiner relied upon an absence of evidence in STRs as the rationale in support of the opinion rendered, which is insufficient, by itself, to support an opinion. Accordingly, an addendum opinion was obtained in July 2021 within which the provider reiterated his opinions offered in September 2020 but also reasoned that while osteoarthritis and patellofemoral pain syndrome can be caused by injury to the knee joint, in this case, there was no notation of any traumatic bony or ligamentous injury to the knees pursuant to the above referenced MVA treatment records. The examiner reasoned that therefore, the "delayed onset" contention of the Veteran's diagnoses many decades later is not substantiated. The examiner opined that it is more likely that these diagnoses are due to age and body habitus. The examiner noted that the Veteran's BMI has not been under 30 since 1999 and age and obesity are some of the greatest risk factors for developing knee osteoarthritis. It is undisputed from the record that the Veteran has a diagnosis of left knee arthritis based on treatment records and the most recent VA examinations. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Thus, the remaining question for the Board is whether the Veteran's left knee arthritis was shown as chronic in service, manifested to a compensable degree within a presumptive period following separation from service, or was noted in service with continuity of symptomatology since service that is attributable to the chronic disease. The Veteran was not diagnosed with arthritis until 1999, which is outside of the presumptive period. Accordingly, the Board will consider whether symptoms were noted in service with continuity of symptomatology since service that is attributable to the chronic disease. The Veteran's contentions have not been consistent. At times he indicates he injured his left knee during 1973 MVAs and has had left knee problems since this 1973 MVA. At other times, he acknowledges that his left knee problems began prior to the 1973 MVA, in 1972 without any known trauma or injury to the left knee. After service, prior to the 1999 arthritis diagnosis, his complaints of left knee pain were few and far between and many examiners found no abnormal pathology. The service treatment records confirm some complaints of left knee pain in 1972, but the 1973 MVA treatment records lack any mention of left knee involvement. The Board surmises that the Veteran has, at a minimum, consistently reported ongoing left knee issues since service albeit not necessarily with consistent awareness as to when or how these left knee issues began. The Board finds significant that the Veteran's left knee pain is documented not only in his STRs, but shortly after service in the September 1974 VA examination. While no pathology at that time warranted a diagnosis, his complaints periodically are documented throughout time thereafter showing some evidence of continuity and chronicity of left knee pain through the years eventually leading to the arthritis diagnosis in 1999. None of the VA examiners were persuaded that current diagnoses were related to the 1972 left knee pain references or the 1973 MVAs, but as outlined above, none of the VA examiners adequately considered the Veteran's full scope of complaints through the years. Rather than delaying the claim one more time for yet another addendum opinion, the Board will instead resolve the benefit of the doubt in favor of the Veteran. The Veteran is certainly competent to describe in service events and continuity of symptomatology since service. The statements made by the Veteran have varied a bit throughout time, but in general show a pattern of sporadic left knee complaints in service and since service. See Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d at 1336 (addressing lay evidence as potentially competent to support presence of disability, even where not corroborated by contemporaneous medical evidence). Accordingly, resolving all doubt in his favor, the Board finds service connection for a left knee disability is warranted in light of the medical and military history of this case. In other words, the Board finds the evidence to be at least in equipoise. See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021) (holding the Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal," and does not require that the evidence be in exact equipoise). As such, the appeal is granted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.