Citation Nr: 21075020 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-23 074 DATE: December 17, 2021 ORDER Entitlement to service connection for degenerative arthritis bilateral knees (bilateral knee arthritis), status post total arthroplasty left knee, is granted. Entitlement to compensation under 38 U.S.C. § 1151 for degenerative arthritis left knee, status post total arthroplasty, is moot. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a leg length discrepancy (LLD), to include a back disability secondary to a LLD, is remanded. Entitlement to service connection for a back disability as secondary to surgery performed to treat service-connected left knee arthritis is remanded. FINDING OF FACT Since his separation from service, the Veteran has experienced continuity of bilateral knee arthritis symptoms that eventually resulted in a diagnosis of arthritis. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral knee arthritis are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 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 in the United States Army from August 1972 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) from September 2013 and July 2014 rating decisions by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). Most recently, in May 2021, the Board remanded the claim for further development. 1. Entitlement to service connection for bilateral knee arthritis, status post total arthroplasty left knee, is granted. The Veteran relates his bilateral knee arthritis to the cumulative impact of his military duties, specifically jumping in and out of tanks. See November 2019 and June 2014 C&P examinations; April 2012 VA Form 21-526b. The Board agrees. Initially, the Board notes that it has remanded this case twice to get an adequate nexus opinion, and all such attempts have been unsuccessful. See May 2021 and January 2019 Board decisions. In this regard, the June 2014 C&P examiner provided a negative nexus opinion that is inadequate because the examiner supported it by noting the lack of evidence of continuity of treatment (the proper standard requires continuity of symptoms, not treatment) and by noting the lack of in-service complaints (which is not required). As will be addressed below, however, the Veteran's service treatment records (STRs) do indicate a bilateral leg injury. The October 2019 C&P examiner provided a negative nexus opinion addressing only the claim filed under 38 U.S.C. § 1151 (Section 1151) but did not address service connection for bilateral knee arthritis on a direct or presumptive basis. The September 2021 C&P examiner also provided a negative nexus opinion that is inadequate because the examiner supported it by noting the lack of documented complaints in the STRs and the lack of evidence that the condition began within one year of service separation. As the Board finds that the evidence of record is sufficient to support service connection for bilateral knee arthritis based on the evidence of record, remanding for an adequate nexus opinion is not necessary and the Board will proceed on the merits with the record as it stands. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection is warranted for certain chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, that are shown to be chronic in service or that began in service and there is a continuity of symptomatology to the present. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Veteran has been diagnosed with bilateral knee arthritis. See September 2021, October 2019, and June 2014 C&P examinations; May 2013, April 2013, and January 2012 VA treatment records. The record also demonstrates that the Veteran has consistently reported continuous symptoms of knee problems since service separation in August 1976, and the Board finds his reports credible. See October 2019 C&P examination (indicating the Veteran reported hurting his knees in service and the problem progressing to present day); October 2019 knee imaging study (stating chronic knee pain); March 2014 and September 2013 VA treatment records (noting a history of knee pain); June 2014 C&P examination (noting the Veteran sought treatment for knee problems in the late 1970s or early 1980s; he left service in 1976); May 2013 VA treatment record (noting left knee pain for years); August 2016, August 2015, January 2014, and January 2012 VA treatment records (describing the Veteran's knee problem as chronic); October 2011 VA treatment record (noting Veteran reported knee pain "for a long time and continues to be persistent" and the exact onset date is unrecalled); September 2009 VA treatment record (complaining of bad knees); June 2009 VA treatment record (reporting increase of knee pain, which means the Veteran had been experiencing knee pain before this date); July 1974 STR physical profile (noting bilateral leg injury and reports of shin pain and tenderness over tibia); September 1973 STR (complaints of right thigh pain and pain upon movement of leg). Given the above-cited evidence, the criteria for entitlement to service connection for bilateral knee arthritis based on continuity of symptomatology are met. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 2. Entitlement to compensation under 38 U.S.C. § 1151 for degenerative arthritis left knee, status post total arthroplasty, is moot. The Veteran asserts that his May 2013 left TKA performed by the VA caused his left knee arthritis. Specifically, he asserts that his left knee arthritis is due to carelessness on the part of VA in performing the surgery or, alternatively, to a faulty prosthetic device used by the VA. See May 2016 VA Form 9; January 2015 Notice of Disagreement; March 2014 Statement in Support of Claim. The Board highlights that the Veteran's formal filings limit his claim of additional disability to left knee arthritis. See id. As this Board decision is awarding the Veteran service connection for bilateral knee arthritis (which includes the left knee), he is service connected for the disability in question, which is a greater benefit than can be awarded under 38 U.S.C. § 1151 based on negligence, so any claim under that statute for left knee arthritis is moot. Cf. Hornick v. Shinseki, 24 Vet. App. 50, 53-55 (2010) (examining the different ancillary benefits available to service-connected veterans compared to those receiving compensation under 38 U.S.C. § 1151). If the Veteran wishes to pursue a claim under the Federal Tort Claims Act, he may discuss this matter with his representative. REASONS FOR REMAND 3. Entitlement to compensation under 38 U.S.C. § 1151 for a LLD, to include a back disability secondary to a LLD, is remanded. 4. Entitlement to service connection for a back disability as secondary to surgery performed to treat service-connected left knee arthritis is remanded. Although the Veteran's formal filings limit his claim for additional disability under Section 1151 to left knee arthritis (for which he is now service connected), his VA treatment records reveal that he has also asserted other additional disabilities stemming from the May 2013 TKA. In this regard, a February 2014 VA treatment record indicates that the Veteran reported his left leg being longer than his right leg. A March 2014 VA physical therapy consult note indicates that the Veteran reported one leg being longer than the other, causing an abnormal gait and back pain. A June 2014 VA treatment record indicates that the Veteran reported a leg length discrepancy causing pain. Thus, although the Veteran's formal filings did not assert a leg length discrepancy that caused a back disability as an additional disability that entitles him to compensation under Section 1151, the Veteran's complaints to this effect documented in his treatment records effectively raise this theory of entitlement. This theory of entitlement under Section 1151 has not yet been adjudicated and requires further development on remand. In this regard, the September 2021 examiner, who provided the most recent medical opinion addressing the Section 1151 claim, was not asked to opine on the LLD and back pain. Specifically, the examiner was not asked to opine whether an abnormal gait and back pain caused by the LLD were events "not reasonably foreseeable." 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. Furthermore, the examiner did not opine whether VA obtained proper informed consent, considering that the informed consent document only mentions LLD as a cosmetic issue and not an outcome that could lead to further disabilities of different body systems. The Board also notes that now that the Veteran is in receipt of service connection for bilateral knee arthritis, he is eligible to claim secondary service connection for disabilities that may have been caused by surgery to treat the service-connected condition. In this regard, the May 2013 TKA was a surgical operation to treat (now) service-connected arthritis in the left knee and, as discussed above, the Veteran has asserted a back disability proximately due to a LLD claimed to be caused by the surgery. Thus, the record raises this theory of entitlement, which has not yet been adjudicated and requires further development on remand. Lastly, the Board notes that an April 2013 VA treatment record indicates that the Veteran "is applying for" Social Security Disability Insurance (SSDI). If the Veteran did apply for SSDI, these records could be relevant to his pending VA claims. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). As these SSDI records are not in the Veteran's file, the AOJ should attempt to obtain them on remand. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records. 3. Ascertain from the Veteran whether he applied for Social Security Disability Insurance and, if so, attempt to obtain the determination letter and any medical records associated with it, with the Veteran's assistance. 4. Then, schedule the Veteran for a VA examination with an appropriate clinician to address his claimed back disability. The entire claims file must be made available to and must be reviewed by the examiner. All necessary diagnostic tests and imaging studies must be carried out, and their findings reported in detail. After reviewing the claims file and examining the Veteran, the examiner must address the following items: (a.) Elicit from the Veteran detailed information about the history of his back condition, to include onset date and progression. (b.) Identify any and all diagnoses of the Veteran's back and spine. (c.) For each disability identified in (b.), opine whether the disability was at least as likely as not (50 percent probability or greater) proximately caused by or is a proximate result of the May 2013 total left knee arthroplasty (TLKA), to include as a proximate result of a leg length discrepancy caused by the TLKA. (d.) For each disability identified in (b.), opine whether the disability was at least as likely as not (50 percent probability or greater) aggravated (worsened beyond the natural progression) by the May 2013 TLKA, to include aggravation caused by a leg length discrepancy caused by the TLKA. 5. After obtaining a spine examination, obtain an addendum opinion from an appropriate clinician to address the Veteran's Section 1151 claim, preferably from an orthopedic specialist, who has never examined the Veteran. The entire claims file must be made available to and must be reviewed by the examiner, to include any spine examination obtained pursuant to this remand. A new examination is not needed unless the examiner determines otherwise, in which case the examiner must state that she or he cannot render a fully-informed opinion without a concurrent examination and an examination must then be scheduled. After reviewing the claims file, the examiner must address the following items: (a.) Please opine whether the Veteran's May 2013 total left knee arthroplasty (TLKA) at least as likely as not (50 percent probability or greater) caused a leg length discrepancy (LLD). Please note June 2014 VA treatment records indicating the Veteran reported one leg being longer than the other and a June 2014 email in the treatment records from a VA nurse stating that a CT scan revealed the right leg measured 80.9 cm and the left leg measured 82.2 cm. (b.) If you identify a LLD that was at least as likely as not caused by the May 2013 TLKA, is it at least as likely as not (50 percent probability or greater) that the LLD proximately caused or aggravated (worsened beyond the natural progression) a back disability, to include as a result of an abnormal gait. (c.) If you identify a LLD or back disability that was at least as likely as not caused or aggravated by the May 2013 TLKA, is it at least as likely as not (50 percent probability or greater) that those additional disabilities are proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or due to an event not reasonably foreseeable? (d.) Please opine whether an abnormal gait and back disability were "not reasonably foreseeable" events of the May 2013 TLKA. (e.) Please opine whether VA obtained proper informed consent before performing the May 2013 TLKA, considering that the informed consent document only mentions LLD as a cosmetic issue and not an outcome that could lead to further disabilities of different body systems. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care proximately caused additional disability, it must be shown that the hospital care caused the Veteran's additional disability and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361(d)(1). The examiner must note that whether the proximate cause of additional disability, if any, was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, the examiner should consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Please provide a robust rationale for all opinions. If unable to opine without resorting to speculation, the examiner must provide a basis for reaching this conclusion. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.