Citation Nr: 21075258 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-16 980 DATE: December 20, 2021 ORDER Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected disabilities, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the evidence is at least in equipoise as to whether the current bilateral knee disability was incurred in and is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for bilateral knee disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1985 to June 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in January 2018 for additional development. VA examinations were conducted in October 2020 and December 2020, and a supplemental statement of the case was provided in January 2021. In April 2021, the Board remanded the Veteran's appeal with instructions to complete all necessary development, associate with the claims file any outstanding VA or private medical records, obtain a supplemental VA medical opinion, and complete development and readjudicate the claim on appeal. The RO complied with these instructions, and supplemental VA medical opinions were obtained in May 2021 and August 2021. The RO issued a supplemental statement of the case in August 2021. The Board is therefore satisfied that the instructions in its remands of January 2018 and April 2021 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Presumption of soundness The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's bilateral knee disability preexisted his military service. The January 1986 enlistment examination indicates the Veteran self-reported a prior knee injury from hitting a post. No further complaints, treatments, or diagnoses regarding a knee injury were noted during service. A report of medical examination performed in June 1990 (service separation) did not contain any complaints, treatment, or diagnoses pertinent to the knees. Post service records do not include any specific injury since separation. A June 2012 VA examination and opinion report noted review of the claims file and medical records. The examiner opined the claimed bilateral knee condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The rationale provided was that there were no records documenting any treatment for a knee injury while in service. Therefore, based on the medical records and the known progression of the condition involved, the examiner found that the Veteran's bilateral knee condition existed prior to service, and that there is no supporting evidence to indicate any aggravation beyond natural progression by military service. The Board finds the June 2012 opinion focused on an unsubstantiated factual premise to find there was a preexisting bilateral knee disability. Since the basis for the examiner's determination was based primarily on a medical history provided by the Veteran, which only recounted that he has hit his knee on a post, the Board finds that this is insufficient, on its own, to amount to "clear and unmistakable evidence" of a pre-existing disability of the knee. Additionally, it provides no explanation of how a seemingly acute injury report results in a chronic preexisting condition; or which knee was affected. Therefore, the presumption of soundness does attaches. See Gilbert, 26 Vet. App. at 52. As such, service connection by way of aggravation of a pre-existing disability is not for application in this case. Service connection laws and regulations Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. Entitlement to service connection for bilateral knee disability The Veteran contends his bilateral knee disability is due to service, specifically, it is secondary to his service-connected bilateral ankle disability. The evidence also considers whether or not the Veterans bilateral knee disabilities is secondary to his service-connected bilateral pes planus. Alternatively, the Veteran contends this his bilateral knee disability is secondary to his service-connected disabilities with obesity as an intermediary step. See November 2021 Written Appellate Brief. Turning to the evidence of record, service treatment records indicate the Veteran self-reported a prior knee injury from hitting a post in his January 1986 enlistment examination. No further complaints, treatments, or diagnoses regarding a knee injury were noted during service. A report of medical examination performed in June 1990 (service separation) did not contain any complaints, treatment, or diagnoses pertinent to the knees. Post service records do not include any specific injury since separation. A June 2012 radiology report found no abnormalities in the Veterans right or left knee. The report indicated knee bones were normally aligned and intact, articular surfaces were normal with normal joint spaces, and the soft tissues were unremarkable. In June 2012, the Veteran underwent a VA knee and lower leg conditions examination. He reported he performed so much running and hiking during active duty that his knees would wobble and have pain. In the last years of service, he said it would be painful to run or hike after approximately three miles. Based on the Veteran's self-reported medical history, a diagnosis of bilateral knee patellofemoral syndrome was noted to have its onset in 1990. The Board finds that while providing a diagnosis and noting the Veteran's subjective history, the examiner did not provide any objective medical assessment regarding the etiology of the Veteran's bilateral knee disabilities. See LeShore v. Brown, 8 Vet. App. 406 (1996) (mere recitation of the veteran's self-reported lay history does not constitute competent medical evidence). As previously mentioned, the Veteran underwent a VA examination in June 2012. Because the examiner's opinion focused on an unsubstantiated factual premise to find there was a preexisting bilateral knee disability, the Board does not find the opinion probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) During a July 2017 Board hearing, the Veteran testified that his bilateral knee condition is secondary to his service-connected bilateral ankle disability. Specifically, while on active duty, his right ankle condition resulted in him favoring that ankle and putting more of his support on his left ankle. Subsequent ankle sprains led to knee pain. Also, wearing "a boot" for his ankle conditions would give him knee problems since he favored the knee and leg that had the boot on it. A September 2017 private orthopedic physician report recounted the Veteran's complaints and history, citing pain in both knees since he was in the military. Specifically, the Veteran stated that while in the military he did a significant amount of running and marching. Since that time, he reported persistent pain anteromedially and medially. Also, he reported that his pain is worse when standing, walking, bending, kneeling, climbing, crawling, or squatting. The private physician opined that the Veterans bilateral knee disability is secondary to his service-connected conditions and military service. Because the Veteran had no other injury to his knees since he left the military, it is most likely that the disability had its onset in-service and is casually related to the current disability. A September 2017 x-ray of both knees revealed no visualized abnormalities. An October 2017 MRI of both knees revealed the left knee to have some lateral subluxation of the patella meniscus with ligaments intact, while the right knee included a bipartite patella with some lateral subluxation with the meniscus intact. An October 2020 VA knee and lower leg conditions examination report noted review of the VA e-folder and medical records, to include the private orthopedic records, recounted the Veteran's complaints and history, and included an in-person examination of the Veteran. There was a diagnosis of bilateral knee strain with an onset of 2017. The examiner opined the claimed condition is less likely than not proximately due to or the result of the Veteran's service connected bilateral ankle disability. The following rationale was provided: Given there is a known event leading to his bilateral knee pains as per [V]eteran in 2006 after running activity, there is no relevance between the ankle condition and knee condition. Based on the lack of evidence of medical record, diagnosis or evidence of service connected condition there is insufficient evidence for claimed knee condition. The bilateral knee strains are less likely than not due to or the result of the Veteran's service connected bilateral ankle sprains... There is lack of medical evidence to support an aggravation or aggravation beyond natural progression leading to or resulting in knee condition. The bilateral knee strains are less likely than not due to or aggravation beyond natural progression from the Veteran's service connected bilateral ankle sprains. A December 2020 VA knee and lower leg conditions examination report noted review of the claims file and medical records, recounted the Veteran's complaints and history, and included an in-person examination of the Veteran. There was a diagnosis of bilateral meniscal tear, bilateral patellofemoral pain syndrome, and bilateral degenerative arthritis all with an onset of 2017. The examiner opined that the Veteran's bilateral knee disability is less likely than not proximately due to or the result of the Veteran's service connected pes planus. The rationale was that the medical literature does not support a causal relationship between the current diagnoses of both knees (bilateral meniscal tear, chondromalacia patella, and mild degenerative arthritis) with pes planus. In April 2021, this appeal was remanded for a medical opinion regarding direct service connection. In May 2021, an opinion regarding secondary service connection under the theory of aggravation was provided. The examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. The rationale provided was that the January 1986 service treatment records indicated a preexisting left knee injury. Subsequent service treatment records did not show aggravation or ongoing treatment. The examiner noted there was a gap of treatment from his separation in 1990 until 2017, when he was diagnosed by a private provider with bilateral knee disabilities. As such, the examiner determined "there is insufficient evidence of a chronic disability for bilateral knee conditions that were aggravated during [active duty]." In an August 2021 addendum opinion, the examiner stated the Veteran's bilateral knee condition was less likely than not caused by or as a result of military service. A rationale to support the medical opinion was not provided. See NievesRodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (concluding that a medical opinion is not entitled to any weight if it does not contain a rationale that adequately connects data and conclusions); Stefl V. Nicholson, 21 Vet. App. 120, 124 (2007); 38 C.F.R. § 3.303(a). The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the evidence of record to at least be in equipoise as to whether the Veteran's bilateral ankle disability is related to service. While there are conflicting medical opinions, it is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). Here, as previously mentioned, the Board does not find the June 2012 and August 2021 VA examiner's opinions probative. Regarding the December 2020 VA examiner's opinion, a negative nexus as to proximate causation was provided, but it did not address the secondary service connection theory of aggravation. Similarly, the May 2021 VA examiner's opinion provided a negative nexus as the theory of aggravation, but it did not address secondary service connection theory of causation. The Board finds these examinations to be inadequate for adjudicative purposes, as the examiners failed to address both prongs of a secondary service connection claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (where the VA provides the veteran with an examination in a service connection claim, such examination must be adequate). Therefore, the Board finds the opinions provided neither persuasive nor probative. Although the opinions of the October 2020 VA examiner and private physician conflict, the Board finds both opinions and rationales to be credible and have probative value. As such, in cases such as this when there is an approximate balance of positive and negative evidence the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral ankle disability is related to service. Hence the benefit of the doubt rule applies. Id. Therefore, the Veteran's claim for entitlement to service connection for a bilateral ankle disability is granted. As the full benefit of service connection is being granted, there is no need to discuss entitlement to service connection on any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.M. Edwards, 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.