Citation Nr: 21074248 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-52 000 DATE: December 14, 2021 ORDER Service connection for a right knee disability, claimed as right knee patellofemoral pain syndrome and degenerative arthritis, is granted. REMANDED Service connection for a respiratory disability, to include acute respiratory failure and chronic obstructive pulmonary disease (COPD) is remanded. Special monthly compensation (SMC) based on aid and attendance is remanded. FINDING OF FACT 1. The Veteran has a current right knee disability which, as likely as not, had an onset during the Veteran's active service. CONCLUSION OF LAW 1. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1965 to October 1965, from February 1969 to September 1969, and from November 1972 to October 1989. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO (i) confirmed and continued the denial of the Veteran's petition to reopen the previously denied service connection claim for right knee patellofemoral pain syndrome (previously claimed as right leg pain, and denied in a June 2015 rating decision), and denied claims of (ii) service connection for acute respiratory failure (now characterized as respiratory disability, to include acute respiratory failure and COPD), and (iii) entitlement to special monthly compensation based on aid and attendance. The Veteran's notice of disagreement (NOD) was received in August 2016. The RO issued the statement of the case (SOC) in September 2017, and the Veteran's VA Form 9, substantive appeal was received in October 2017. In November 2018 and July 2020, the Board remanded the claims for further development and adjudicative action. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence, onset, or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for a right knee disability, claimed as right knee patellofemoral pain syndrome The Veteran contends that he is entitled to service connection for a right knee disability, claimed as right knee patellofemoral pain syndrome. A May 1981 Service Treatment Record (STR) shows complaint of pain from the right ankle to the right knee. A September 1983 STR shows edema to the right knee with pain. An April 1985 STR shows that the Veteran reported right knee pain after a softball game. He was assessed with a right knee sprain. X-ray testing revealed "minimal" degenerative joint disease of the right knee with calcification of lateral ligaments. STRs from October 1987 show complaints of swelling and pain in the right knee for five days. There was stiffness and swelling, and mild patellar edema. A radiologic report indicates mild osteophytic spurring in the right knee. The Veteran was assessed with probable patellar tendonitis. The Veteran had a VA examination in of the right knee in June 2015. The examiner noted a diagnosis of right knee patellofemoral syndrome. The history of the disease was as follows: "[t]he date of onset of the symptoms is 1985. The claimant states the above condition began when had ankle injury, torn Achilles tendon, ligaments, muscles. The condition has stayed the same, swelling causes me to limp everyday. [sic]" The examiner opined that the right knee disability was less likely than not related to service. The rationale was as follows: there is no evidence of right knee injury in active duty service records. Claimant denies knee problems separation exams in 1969 and 1989. There is no evidence of any knee complaints in the years immediately after separation. There is no evidence to support this claim. There is no evidence of knee injury in combat since he did have adequate discharge exam in 1969 and he had detailed exam since he went back in the military a couple years later and still denies any knee problems secondary to combat. Claimant did have one time complaint of right knee injury after playing ball in 1985, but x-ray and exam were normal and he denies continued knee problems each year at the next couple physical exams and at time of separation. The Veteran had another VA examination of the right knee in January 2020. The examiner noted a diagnosis of degenerative arthritis in the right knee. The examiner obtained a medical history from the Veteran concerning the right knee, including the Veteran's reports that he continued to play sports after he separated from service and noticed pain in the right knee around 2014. The examiner opined that the right knee disability, degenerative joint disease, was less likely than not related to service. The rationale was as follows: 1.After a review of the veteran's service treatment records, medical records, history and physical examination there is no documentation in the service records that indicates that the veteran had any bilateral knee pain, treatment or a patellofemoral pain syndrome. There is no medical documentation seen for any chronic recurring knee pain during or following his military service. 2. According to the American Association of orthopedic surgeons, arthritis is seen to begin around 50 years of age. The Veteran had another VA examination of the right knee in March 2021. The examiner again noted right knee patellofemoral pain syndrome and degenerative arthritis in the right knee. The examiner noted an onset date of 1966; details were noted as "Veteran claims a R knee patellofemoral pain syndrome. He reports gradual onset R knee pain with no known injury or trauma. He reports the pain worsened 5 years ago. He states he has never been evaluated or treated for a R knee condition. The pain is worse when he has been on his feet for long periods of time. He reports intermittent swelling of the knee." [sic] The Veteran reported that right knee pain was worsening in severity. The examiner opined that the Veteran's right knee disability was less likely than not related to service. Specifically, the examiner stated: No chronic diagnosis is made for right knee patellofemoral pain syndrome. The veteran was dx with degenerative arthritis of the R knee at today's exam. The veteran was dx with degenerative arthritis of the R knee in 2015, however this was over 25 years after he separated from the military. A Nexus has not been established. [sic] Then, the examiner clarified as follows: The claimed [right] knee condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. After reviewing the STR, including October 1980, May 1981, and April 1985 service treatment records of right knee complaints and the October 1987 service treatment records documenting a diagnosis of patellar tendonitis and mild patellar edema, right knee, it is determined that there was no chronic [right] knee [diagnosis] made in service. The veteran was [diagnosed] with degenerative arthritis of the [right] knee in 2015, however this was over 25 years after he separated from the military. A nexus has not been established. Based on the foregoing, the analysis turns to whether the Veteran's right knee disability, claimed as right knee patellofemoral pain syndrome, is related to service. As set out above, the June 2015, January 2020, and March 2021 examiners each opined against such a link. However, the June 2015 opinion did not address the numerous STRs reflecting complaints treatment, and diagnoses of right knee issues, including April 1985 and October 1987 STRs which specifically indicated the presence of degenerative joint disease, and patellar tendonitis, in the right knee. Considering that each examiner specifically noted current diagnoses including patellofemoral pain syndrome and degenerative arthritis in the right knee, and each diagnosis is specifically referenced in the STRs, the failure to address the evidence which tends to show the presence of such disabilities during the Veteran's service means that the rationales in support of each opinion are not based on the entirety of the relevant evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). Thus, the June 2015 and January 2020 opinions carry no probative weight. Concerning the March 2021 opinion, the examiner acknowledged certain STRs concerning in-service right knee treatment and injury, but the examiner's characterization of the STRs misses important evidence. Specifically, the examiner acknowledged the October 1987 STR which shows diagnoses of (i) mild patellar edema and (ii) patellar tendonitis in the right knee. The examiner also acknowledged the STRs from October 1980 to October 1987 which show numerous complaints of right knee pain. However, the examiner did not specifically address the April 1985 STR which distinctly shows a diagnosis of degenerative joint disease of the right knee with calcification of the right lateral ligament. As set out above, the crux of the examiner's rationale is that degenerative arthritis of the right knee was not diagnosed until 25 years after the Veteran separated from service. However, the STRs show that such is not the caserather, the presence of degenerative joint disease of the right knee is shown in STRs dated April 1985. Thus, the opinion is founded on an inadequate factual basis. Moreover, an adequate rationale would have acknowledged the similarity between the condition noted in April 1985, during service, and the current diagnosis of degenerative joint disease. For those reasons, the March 2021 opinion also carries no probative value. On the other hand, and as set out in detail throughout this decision, the STRs show that the Veteran was treated for right knee problems on several occasions during service, which problems were variously diagnosed as "minimal" degenerative joint disease and patellar tendonitis. The record does not show any sort of post-service intervening injury to which the Veteran's current right knee disability might otherwise be attributed. Moreover, the Veteran's current right knee disability has specifically been diagnosed as arthritis of the right knee both during service and at present. It is reasonable to presume that the Veteran's right knee arthritis during service did not resolve, especially when considering that he was treated for such symptoms on several occasions during service. Thus, without another cause to which the Veteran's right knee disability might be attributed, it may be reasonably inferred that the right knee disability he experiences today is the same disability for which he was treated on numerous occasions during service. Without any probative medical evidence in the record to dispute such finding, it may thus be found that the evidence is evenly balanced as to whether the Veteran's right knee disability had an in-service onset. When the evidence is at least evenly balanced, all reasonable doubt must be resolved in the Veteran's favor. When resolving reasonable doubt in the Veteran's favor, each element of the right knee disability service connection claim is met. As a result, the claim must be granted. REASONS FOR REMAND 2. Entitlement to service connection for a respiratory disability, to include acute respiratory failure and chronic obstructive pulmonary disease (COPD) The Veteran contends that he is entitled to service connection for a respiratory disability, to include acute respiratory failure and chronic obstructive pulmonary disease (COPD). Pursuant to the June 2020 Board remand, the claim was remanded to obtain a VA examiner's opinion as to whether the Veteran has any respiratory disabilities, and if so, whether such disabilities are as likely as not (at least a 50 percent probability) related to service. Such opinion was obtained in March 2021, when a VA examiner found that the Veteran does not have a current respiratory disability. The examiner elaborated, stating: No chronic diagnosis is made for a respiratory condition. Objective exam is normal. Unable to render a dx with the available records. The STR including September 1968, June 1980, April 1989 and July 1989 was reviewed and the veteran was not [diagnosed] with a chronic respiratory condition in service. A Nexus has not been established However, this finding is inconsistent with the medical evidence in the record which includes medical treatment records and prior VA examination reports indicating the presence of several diagnosed respiratory disorders. For instance, a September 2015 private hospitalization note shows that the Veteran was hospitalized for acute respiratory failure. An April 2018 private x-ray report shows that the Veteran's inspiratory volume was "quite low," and he was assessed with shallow inspiration with mild scattered atelectasis. A January 2020 VA respiratory conditions Disability Benefits Questionnaire (DBQ) shows a current diagnosis of chronic obstructive pulmonary disease (COPD). Therefore another remand is necessary to obtain an adequate addendum opinion addressing all relevant evidence, including the medical evidence concerning the nature of the Veteran's current respiratory disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 3. Entitlement to special monthly compensation (SMC) based on aid and attendance The issues of entitlement to service connection for a respiratory disability may have an impact on the Veteran's claim of entitlement to SMC based on aid and attendance; thus, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). As the issue of entitlement to service connection for a respiratory disability must be remanded prior to adjudication, so too must the issue of entitlement to SMC based on aid and attendance. The matters are REMANDED for the following action: 1. Obtain an opinion from a qualified VA examiner as to the nature and etiology of any current respiratory disabilities. If the examiner determines that an in-person examination is necessary, schedule the Veteran for such examination. The examiner should identify any current respiratory disabilities, and for each disability, opine as to whether it is at least as likely as not (i.e. a 50 percent likelihood or greater) that the disability is related to service. In so opining, the examiner should address the medical evidence which indicates assessments of respiratory disorders including acute respiratory failure and COPD, to include a September 2015 private hospitalization note showing that the Veteran was hospitalized for acute respiratory failure, an April 2018 private x-ray report shows that the Veteran's inspiratory volume was "quite low," and he was assessed with shallow inspiration with mild scattered atelectasis, and a January 2020 VA respiratory conditions DBQ showing a current diagnosis of COPD. The examiner should also consider the service treatment records and the Veteran's lay statements concerning onset and symptomatology of respiratory symptoms. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. A thorough rationale must accompany all opinions formed and conclusions drawn. 2. Readjudicate the claim for special monthly compensation, to include determination of whether the Veteran meets the criteria for this benefit based upon his currently assigned combined ratings. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.