Citation Nr: 21072513 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-56 443 DATE: December 3, 2021 ORDER Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to service connection for right knee strain is remanded. Entitlement to service connection for cervical strain is remanded. Entitlement to service connection migraine headaches is remanded. FINDING OF FACT There is no competent evidence of record showing that the Veteran has a current diagnosis of a left knee disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1982 to June 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2016 and March 2017 rating decisions by an Agency of Original Jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). This case was previously before the Board in March 2019 when the issues of entitlement to service connection for bilateral hearing loss, tinnitus, and migraine headaches and entitlement to an increased rating for lumbosacral strain were remanded. The remaining issues of entitlement to service connection for a left knee disability, right knee disability, cervical spine disability, and bilateral plantar fasciitis were denied. The Veteran appealed the March 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Memorandum Decision, the Court set aside the Board decision with respect to the denied issues and remanded them for additional action. In April 2021, the Board issued a decision which denied entitlement to service connection for bilateral hearing loss and tinnitus and for an initial disability rating in excess of 20 percent for the Veteran's service-connected lumbosacral strain. The issues of entitlement to service connection for a right knee disability, a left knee disability, a bilateral foot disability, a cervical spine disability and for migraine headaches were remanded for additional development. While the April 2021 remand was pending, the AOJ issued a rating decision in August 2021 which granted service connection for bilateral flatfeet. This represents a full grant of this benefit and the issue is no longer on appeal. Since the issuance of the statement of the case (SOC) in August 2021, additional VA-generated records have been associated with the claims file. Typically, in such circumstances, a supplemental statement of the case (SSOC) must be furnished to the veteran and any representative, as provided in 38 C.F.R. § 19.31, unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). As the new evidence is not relevant to the issues on appeal, the Board is not required to remand for the issuance of an SSOC. Duty to Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). Service Connection Service connection may be established for 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 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 disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; 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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases 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). Arthritis, with a presumptive period of one year following separation from service, is a listed condition. Finally, a disability which is proximately due to, or the result of, or aggravated by a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. §§ 3.306, 3.310. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In determining 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, the benefit of the doubt is afforded the claimant. Left Knee The Veteran asserts he has a left knee disability that is related to his time in service, to include as due to his service-connected back disability. The Veteran's service treatment records (STRs) are negative for a left knee injury or treatment for left knee symptoms in service. However, STRs reflect that in April 1984 the Veteran sustained a right knee contusion. He hit his right lateral knee on an AFFF unit handle. The Veteran complained of pain and swelling at the site on range of motion. The report of the Veteran's separation examination noted two scars on his right knee. The Veteran underwent a VA knee examination in September 2016. The VA examiner noted the Veteran's right knee strain. The Veteran reported that in 1986 he was carrying a 50-pound plate on a ship when a wave hit causing him to strike the pin on a crank with a right outer knee. He reports the pain never went away since then. He reports being treated conservatively with steroid injections in the 1990's and had an x-ray that was negative. He was evaluated in 2016 and an x-ray taken in April 2016 was unremarkable. He has received steroid injections twice with relief for about 1.5 weeks. The VA examiner reported the Veteran was seen on April 12, 1984, for "left" lateral knee pain when he hit it on an AFFF unit handle about 10hrs prior. There was knee swelling and he was diagnosed with a contusion. The VA examiner stated "the note, submitted by the American Legion Department of IA has a crossed out right with left written over it. On other copies of this note the right is not crossed out. Report of medical history dated 5/21/87 reports a denial of a trick or locked knee and no knee symptoms are noted. Report of medical examination notes a normal lower extremity examination." The Veteran reported experiencing flare-ups of the knee described as "some days it's I just put weight on it and there's a sharp pain." Functional loss and/or functional impairment was described as "climbing stairs kills it pretty bad. I don't do a lot of activities because of my lungs. Riding a bicycle is out. Any extensive walking like more than 100 yards starts bothering it." Range of motion of the right knee was flexion from 0 to 135 degrees and extension from 135 degrees to 0 degrees. Range of motion itself did not contribute to functional loss. Pain was exhibited in both ranges of motion and there was objective evidence of pain with weight bearing. Pain on palpation of the joint was noted as moderate pain at the outer knee. The right knee was negative for ankylosis, crepitus and joint instability. The VA examiner determined that it was less likely than not that the Veteran's diagnosis of right knee strain was incurred in or caused by claimed in-service injury that occurred June 24, 1982 to June 23, 1987. The VA examiner noted that the reported injury in the STRs diagnosed a knee contusion, a self-limited condition that resolves without residual deficits; knee pain was not noted on the separation report of medical history and report of medical examination. The VA examiner did not diagnose a left knee disability. In January 2017, a VA opinion as to the etiology of the Veteran's claimed left knee disability was obtained. The VA examiner noted that the Veteran contends his left knee condition is due to his service-connected low back condition. The VA examiner determined that it is less likely than not that the Veteran's claimed left knee disability is the result of his service-connected condition. The VA examiner stated that "there is no clear evidence from a 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 nerve damage causing partial or complete paralysis. Or shortening of the limb resulting in a length discrepancy of more than 5cm so that the gait pattern is altered to the extent that clinically there is an obvious Trendelenburg gait. Use of associated body components as a result of avoiding use of a painful or limited component is a natural compensation. Whether the associated body part is capable of the increased load is a property of the contralateral part. It is not unusual for two joints to share properties in the same person, but one joint's disease does not 'spread' to another or cause damage to it. The condition of the left knee is due to something intrinsic to the left knee and not the lumbar strain. (Oxford's Textbook on Orthopedics and Trauma). There is no evidence lumbar strain as permanently aggravated right knee strain beyond its natural progression." VA treatment records reflect complaints of right knee pain or unspecified knee pain. The issue was remanded by the Board in April 2021 citing the Court's Memorandum Decision which found the January 2017 opinion was inadequate to adjudicate the claim because the examiner inconsistently identified which knee the opinion referred to, rendering it unclear. Additionally, the VA examiner employed the incorrect standard regarding aggravation opining on permanent aggravation rather than any incremental increase. The Veteran underwent a VA knee examination in August 2021. The VA examiner did not document a left knee disability. Range of motion of the left knee was normal flexion to 140 degrees and extension to 0 degrees. In an addendum opinion, the VA examiner noted that there was no left knee disability and no functional loss or impairment. Post-service treatment records are negative for a diagnosis of a left knee disability but reflect treatment for complaints of chronic knee pain. However, no functional impairment of the left knee is shown or alleged. Pain alone, without any functional impairment, is not a service connectable disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part, dismissed in part by Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Saunders v. Wilkie, 886 F. 3d (Fed. Cir. 2018). There is no medical evidence associated with the file that establishes any functional impairment or diagnoses for the Veteran's claimed left knee disability. Additionally, while the Veteran is competent to report describe symptoms he experiences, determining the exact nature and diagnosis of any musculoskeletal disorder requires specialized knowledge or training which the Veteran was not shown to have. He lacked the knowledge and training to conclude whether such observable symptoms are part of a chronic disease or disorder, or to opine regarding the cause of such. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 255 (1992). Accordingly, service connection for a left knee disability is not warranted. The Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claims for service connection for this disability, the doctrine is not applicable. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). REASONS FOR REMAND The issues of entitlement to service connection for a right knee disability, for cervical strain, and for migraine headaches are remanded for additional development. Right Knee The Veteran's STRs reflect that in April 1984 the Veteran sustained a right knee contusion. He hit his right lateral knee on an AFFF unit handle. The Veteran complained of pain and swelling at the site on range of motion. The report of the Veteran's separation examination noted two scars on his right knee. VA treatment records note the Veteran reported he underwent a right knee internal fixation in 1997 and that he had mild arthritis of the knee. On remand, an attempt should be made to obtain any records related to the Veteran's 1997 right knee internal fixation. In its April 2021 decision, the Board requested that an opinion as to whether or not any right knee disability was caused by or is related to the Veteran's period of active service. The VA examiner was asked to not the Veteran's in-service right knee injury in April 1984 and his reports of ongoing symptomatology since his period of active service. The Veteran underwent a VA knee examination in August 2021. The VA examiner diagnosed right knee strain at the examination and noted the Veteran's history of a right knee contusion in April 1984. The Veteran reported that while evacuating the ship in April 1984 he hit his knee on a crank handle while running. He was seen in sick bay and since then has had sharp pains to lateral knee on and off and the knee has been overall bothersome since the injury. The Veteran stated that it "feels like someone is shoving a screwdriver into my leg when he gets on his knees." The Veteran stated that his condition has worsened since onset. He reported experiencing sharp pains to lateral knee off and on, since hip replacement the pain has worsened significantly. The Veteran reported that Cortisone injections help for a couple weeks, that a brace helps but his is worn out and needs replacement and that pain medications help somewhat. Flare-ups were described as moderate in severity, manifested by sharp stabbing, very intense pains precipitated by kneeling, crawling, climbing stairs or ladders, or hitting the lateral aspect of knee. Range of motion of the right knee was flexion to 115 degrees and extension to 30 degrees with pain on flexion. Range of motion of the left knee was flexion to 140 degrees and extension to 0 degrees. No ankylosis, joint instability or muscle atrophy was present in either knee. The VA examiner determined it was less likely than not that the Veteran's right knee strain was caused by his in-service injury. Service records indicate that he was seen for a right knee "contusion" in April 1984. The VA examiner stated, "a contusion, being a bruise is not an injury that would likely cause significant prolonged pain/injury, or scars as the Veteran claims. There is likely another injury to the knee that is not mentioned or maybe even documents as he does have visible scars to the knee. There have also been several healthcare visits throughout the years with no complaints reported with the knee." The Board finds this opinion is inadequate for adjudication purposes because it did not address the Veteran's 1997 right knee internal fixation, nor his reports of ongoing symptomatology since service. On remand, an addendum opinion should be obtained which determines the current nature and etiology of any currently diagnosed right knee disability. Cervical Strain The Veteran's STRs reflect treatment for a neck injury in April 1983. The Veteran sought treatment for complaints of a stiff neck after a fall from a ladder approximately one month earlier. Palpable tenderness was noted in midline at approximately the 4th cervical vertebrae. The Veteran was noted to have full range of motion. X-rays were within normal limits. In its April 2021 decision, the Board remanded the issue for an addendum opinion regarding the Veteran's claimed cervical spine disability. The Veteran underwent a VA cervical spine examination in August 2021. The VA examiner was asked to determine whether it was at least as likely as not that any disability of the Veteran's cervical spine was caused by or otherwise etiologically related to the Veteran's period of active service. The VA examiner was asked to discuss the Veteran's in-service neck injury in 1983 and reports of ongoing symptomatology since his period of service. The VA examiner stated that she "believes that it is less likely than not that this veteran's cervical strain was incurred while in service. Records indicate that he suffered a fall in 1986 at that time the x-rays were negative. He was seen multiple times since his discharge with no mention of this neck pain until 2016." The Board finds this opinion is inadequate for adjudication purposes as it failed to comply with the Board's remand directives in failing to consider the Veteran's reports of ongoing symptomatology since service and in failing to provide a thorough rationale for the opinion. On remand, an addendum opinion should be obtained as to the nature and etiology of the Veteran's cervical strain. Stegall v. West, 11 Vet. App. 268, 271 (1998). Migraine Headaches The Veteran's STRs are negative for treatment for symptoms of headaches or a diagnosis of a headache disorder. The report of the Veteran's separation examination was negative for a headache disorder or migraine headaches. In its April 2021 decision, the Board remanded the issue for an addendum opinion regarding the Veteran's diagnosed migraine headache disability. The Veteran underwent a VA headache examination in August 2021. The VA examiner was asked to determine whether it was at least as likely as not that the Veteran's diagnosed migraine headache disability was caused by or otherwise etiologically related to the Veteran's period of active service. The VA examiner was also asked to determine whether it is at least as likely as not that the Veteran's migraines are caused by or aggravated beyond its natural progression by a service-connected disability. The VA examiner was asked to discuss the article submitted by the Veteran regarding a link between posttraumatic stress disorder and migraine headaches. Separate opinions for causation and aggravation were required. The VA examiner stated that she "believes that this veteran's migraine headaches as less likely than not connected to his degenerative arthritis of the lumbosacral spine, PTSD, acne scars on the back and acne. None of these conditions have any proven medical link to causation." The Board finds this opinion is inadequate for adjudication purposes as it failed to comply with the Board's remand directives in failing to address the article submitted by the Veteran and in failing to provide separate opinions for causation and aggravation. On remand, an addendum opinion should be obtained as to the nature and etiology of the Veteran's migraine headaches. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Associate all outstanding VA treatment records with the file. 2. Contact the Veteran and request properly executed releases for all relevant private treatment records, including, but not limited to, records related to his 1997 right knee surgery. 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. 3. Then, return the file VA contract examiner who provided the August 2021 knee examination and opinion. The claims file must be reviewed by the examiner. If the examiner is not available, another appropriate medical professional may be consulted. If the examiner determines another VA examination is necessary, one should be scheduled. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed right knee disability is related to the Veteran's time in service, to include consideration of the Veteran's documented in-service April 1984 right knee injury, and reports of ongoing symptomatology including a right knee internal fixation in 1997, since his period of active service. A full and complete rationale for all opinions expressed is required. 4. Return the file VA contract examiner who provided the August 2021 cervical spine examination and opinion. The claims file must be reviewed by the examiner. If the examiner is not available, another appropriate medical professional may be consulted. If the examiner determines another VA examination is necessary, one should be scheduled. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed cervical spine disability is related to the Veteran's time in service, to include consideration of the Veteran's documented in-service April 1983 neck injury and reports of ongoing symptomatology since his period of active service. A full and complete rationale for all opinions expressed is required. 5. Return the file VA contract examiner who provided the August 2021 headache examination and opinion. The claims file must be reviewed by the examiner. If the examiner is not available, another appropriate medical professional may be consulted. If the examiner determines another VA examination is necessary, one should be scheduled. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed migraine headache disability was caused by or otherwise etiologically related to the Veteran's period of active service. The VA examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed migraine headache disability was caused by or aggravated beyond its natural progression by a service-connected disability. The opinion should address the article submitted by the Veteran regarding a link between posttraumatic stress disorder and migraine headaches. Separate opinions for causation and aggravation are required. A full and complete rationale for all opinions expressed is required. 6. Then, readjudicate the remanded issues. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger, 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.