Citation Nr: 21073981 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 14-43 978 DATE: December 13, 2021 ORDER Entitlement to service connection for a bilateral knee condition, to include as secondary to service-connected bilateral ankle disabilities, is DENIED. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's bilateral knee degenerative arthritis was incurred in or aggravated by service; additionally, the current bilateral knee degenerative arthritis is not proximately due to, or aggravated by, the service-connected bilateral ankle disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral knee condition have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Marine Corps from April 1977 to April 1981. Entitlement to service connection for a bilateral knee condition, to include as secondary to service-connected bilateral ankle disabilities, is denied. In October 2010, the Veteran submitted a VA Form 21-526. Therein, the Veteran initiated a claim for service connection for a bilateral knee condition. Service connection may be established for disability resulting from personal injury suffered or disease contracted while in the active military, naval, or air service. 38 U.S.C. § 1110. 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). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; 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 aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, 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. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (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 or injury, will be service-connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). (This standard of assessing aggravation of disability under 38 C.F.R. § 3.310 was established in 2006. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310)). Although VA indicated that the purpose of the regulation was merely to apply the Court's 1995 ruling in Allen, it was made clear in the comments to the regulation that the 2006 changes were intended to place the burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the revision amounted to a substantive change in the regulation. Because the Veteran's claim was received after the regulatory change, his claim will be adjudicated under the current version of the regulation. The 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). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). In January 2011 and June 2014, the Veteran's service treatment records (STRs) were associated with the claims file. After deliberate review, the Board notes that the STRs do not contain a note of treatment for and/or diagnosis of a knee injury during the Veteran's active duty service in the United States Marine Corps. The Board also notes that the March 1981 separation examination report indicated that the Veteran demonstrated normal lower extremities. In May 2013, the Veteran submitted a notice of disagreement (NOD). Therein, the Veteran posited that, "I feel my ankles affects the way I walk causing additional stress on my knees. In addition while on active duty I was a grunt and carried heavy packs and equipment that caused stress on my knees even though I never sought treatment." In October 2014, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured knee and lower leg conditions. The VA examiner noted a diagnosis for bilateral knee degenerative joint disease (DJD). The Veteran reported that the onset of symptoms was 1977, and they have continued to become worse since that time. The VA examiner opined that it less likely than not (less thang 50 percent probability) that the Veteran's bilateral knee diagnosis was proximately due to, or the result of, a service-connected disability. The VA examiner supplied the following rationale: "(c)laimant has normal gait, no evidence of compensation in gait leading abnormal strain on the knees, and no evidence of disease progression after 38 years still no evidence of DJD in the ankles. Claimant states knee problems started on active duty and not as a result of ankles." In December 2014, the Veteran submitted a VA Form 9. Therein, the Veteran posited that his current knee problems were the result of an altered gait caused by the service-connected ankle disabilities. The Veteran relayed that, "the examiner must have misunderstood me when she stated that I said my knee problems started on active duty and were not a result of my ankle conditions. To the contrary, I know that my knee pain is due to my change in gait because of my ankle pains." In October 2019, the Veteran underwent a VA examination that addressed that nature and etiology of any currently endured bilateral knee disorder(s). The VA examiner noted diagnoses for bilateral knee degenerative arthritis. The Veteran identified a 2009 date of onset, and the knee disorders had progressed over the following 10 years. The VA examiner opined that the Veteran's bilateral knee generative arthritis was not at least as likely as not aggravated beyond its natural course by a service-connected condition. The VA examiner supplied the following rationale: " the service connected ankle condition is not related to the Veteran's claimed bilateral knee condition clamed as degenerative joint disease of the bilateral knees. A nexus has not been established." In June 2020, the Board addressed the Veteran's claim for service connection for a bilateral knee condition. At that time, the Board remanded the Veteran's claim to the agency of original jurisdiction (AOJ) for additional development. The Board found that the October 2019 VA examination report was inadequate, remanding the claim for an addendum VA opinion. In October 2020, the Veteran underwent a VA examination that addressed that nature and etiology of any currently endured bilateral knee disorder(s). The VA examiner noted diagnoses for bilateral knee degenerative arthritis. The Veteran reported the onset of bilateral knee pain in the 1980s, which has gotten worse over time. The VA examiner remarked that, "(s)ubjective report of pain with activities is not indicative of functional impairment to bilateral knees. There is no objective evidence to warrant a functional impairment for bilateral knee condition. Gait on day of the examination was silent for signs of ankle instability such as pronation, supination, or liming." The VA examiner opined that the bilateral knee degenerative arthritis was less likely than not (less than 50 percent probability) proximately due to, or the result of, the Veteran's service-connected bilateral ankle disabilities. The VA examiner supplied the following rationale: "(s)prain in one joint does not cause arthritis in another joint. A thorough review of medical literature failed to show such causal relationship. 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. Therefore the bilateral ankle sprain is less likely than not related to the degenerative arthritis to bilateral knees. A nexus has not been established." The VA examiner opined that, "(t)he Veteran's degenerative arthritis to bilateral knees is not permanently aggravated beyond its natural progression by Veteran's diagnosis of bilateral ankle strain. Report of altered gait from bilateral ankle condition is subjective in nature and is not validated by objective evidence. Gait on day of the examination was silent for signs of ankle instability such as pronation, supination, or liming. There is no objective evidence of Veteran having a permanently altered gait due to diagnosis of bilateral ankle strain that would cause permanent aggravation of degenerative arthritis to bilateral knees. There is also no further evidence of bilateral ankle condition causing permanent aggravation of bilateral knee condition beyond its natural progression. The current condition of Veteran's bilateral knee condition is attributed to the natural progression of degenerative arthritis to bilateral knees." The Board notes that the Veteran currently endures bilateral knee degenerative arthritis. Consequently, the first requisite element for direct and secondary service connection have been substantiated. See Hickson, 12 Vet. App. at 253; Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. After review, the Board notes that the appellate record indicates that the Veteran's bilateral knee disorders began at different times. The October 2014 VA examiner recorded that the Veteran reported that onset occurred in 1977. However, the Veteran reported in his VA Form 9, positing that the knees were caused by the service-connected ankle disabilities. During the October 2019 VA examination, the Veteran identified 2009 as the onset of his bilateral knee disorders. Given the inconsistencies in the Veteran's statements regarding onset of pain, the Veteran finds his report of knee impairment beginning during service (in 1977) and continuing to the present time are not credible. In reaching this conclusion, the Board notes the Veteran's STRs are devoid of notation to support that the Veteran was seen and/or treated for any knee condition during service in the United States Marine Corps. Moreover, his service separation is negative for any complaint or diagnosis of a knee disability or knee impairment. The Board has reviewed the Veteran's treatment records from the Jacksonville CBOC, Durham VAMC, and Cumberland County VA Clinic. These records reflect that the Veteran was not seen or treated for a knee disability for at least two decades after his separation from the U.S. Marine Corps. Consequently, the Board finds that the appellate record does not support an in-service incurrence of the current bilateral knee degenerative arthritis. Therefore, the second requisite element for direct service connection has not been substantiated. See Hickson, 12 Vet. App. at 253. The Board notes that the Veteran has been service connected for bilateral ankle disabilities since September 2010. Consequently, the second requisite element for secondary service connection has been substantiated. See Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. However, the appellate record does not support a finding that the Veteran's current bilateral knee degenerative arthritis is proximately due to, or the result of, the service-connected bilateral ankle disabilities. See 38 C.F.R. § 3.310 (a). Additionally, the October 2020 VA examiner opined that the Veteran's current bilateral knee disorder is not permanently aggravated beyond its natural progression by the service-connected bilateral ankle disabilities. Consequently, the final requisite element for secondary service connection has not been substantiated. See id. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claim for service connection for bilateral knee disorders. Since the preponderance of the evidence is against this bilateral knee claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim of entitlement to service connection for bilateral knee disorders must be denied, because the preponderance of the evidence weighs against his claim. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.