Citation Nr: 21075443 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-44 651 DATE: December 20, 2021 ORDER Service connection for bilateral degenerative joint disease of the knees, to include as secondary to service-connected hallux valgus of the bilateral feet, is denied. FINDING OF FACT The Veteran's bilateral degenerative joint disease of the knees did not manifest in service, within one year of separation from service, and is not otherwise shown to be related to service or a service-connected disability, including hallux valgus of the bilateral feet. CONCLUSION OF LAW The criteria for service connection for bilateral degenerative joint disease of the knees, to include as secondary to service-connected hallux valgus of the bilateral feet, are not met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1967 to May 1969. In August 2019, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing is of record. In November 2019, the Board of Veterans' Appeals (Board) issued a decision which, in pertinent part, reopened then denied the Veteran's claim for service connection for bilateral degenerative joint disease of the knees, to include as secondary to the service-connected hallux valgus of the bilateral feet. The issues of entitlement to a disability rating in excess of 10 percent for service-connected hallux valgus of the bilateral feet was remanded. The Veteran appealed the Board's denial of service connection for bilateral degenerative joint disease of the knees to the United States Court of Appeals for Veterans Claims (Court or CAVC). In December 2020, the Court issued a Memorandum Decision vacating the Board's November 2019 decision, as it pertained to the issue of service connection for bilateral degenerative joint disease of the knees and remanded the matter on appeal for adjudication consistent with the instructions outlined in the Memorandum Decision. In July 2021, the Board remanded the issue of entitlement to service connection for bilateral degenerative joint disease of the knees for further development. Also in the July 2021 decision, the Board remanded the issues of disability ratings in excess of 20 percent for service-connected bilateral degenerative joint disease and hallux valgus deformity with associated scars for due process reasons. As was explained in that decision, following the Board's November 2019 remand, the Regional Office (RO) issued a September 2020 rating decision which increased the disability ratings for right and left degenerative joint disease and hallux valgus deformity to 20 percent, each, effective February 27, 2015. Additionally, service connection was granted for a scar on each foot, rated 0 percent, effective February 27, 2015. Because the Veteran's November 2015 Notice of Disagreement (NOD) had indicated he was seeking a rating in excess of 10 percent for both disabilities, the RO found its September 2020 rating decision to constitute a full grant of benefits on appeal. However, this was in error because the highest ratings available had not been assigned and the Veteran had not specifically indicated he would be satisfied with just the 20 percent rating and not higher. 38 C.F.R. § 3.103(a); A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, the Board remanded those issues for the issuance of a supplemental statement of the case (SSOC). In October 2021, the Regional Office (RO) issued a Supplemental Statement of the Case (SSOC) that addressed the claims for service connection for bilateral degenerative joint disease of the knees, increased ratings in excess of 20 percent for service-connected degenerative joint disease and hallux valgus deformity of the left and right feet, and initial compensable ratings for service-connected scars of the left and right feet. The Veteran responded by filing a Decision Review Request: Board Appeal (Notice of Disagreement) under the Appeals Modernization Act (AMA) for the matters related to the bilateral feet. See October 2021 VA Form 10182. Because the Veteran did not include the issue of entitlement to service connection for bilateral degenerative joint disease of the knees, to include as secondary to service-connected hallux valgus of the bilateral feet, on his October 2021 VA Form 10182, the issue remains on appeal under the Legacy System. Accordingly, the Board will address only the Veteran's Legacy appeal issue at this time. The remaining issues appealed under the AMA will be addressed in a separate decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for bilateral degenerative joint disease of the knees, to include as secondary to service-connected hallux valgus of the bilateral feet The Veteran contends the service-connected disabilities in both of his feet have altered his gait and as a result, has caused him to develop bilateral degenerative joint disease in the knees. During the October 2015 VA examination, the Veteran was given a diagnosis of degenerative joint disease of the bilateral knees. Therefore, the Veteran has a currently diagnosed disability of the bilateral knees. However, the Veteran's service treatment records are silent for any complaints, findings, treatment, or diagnoses relating to his bilateral knees. The Veteran also reported during the October 2015 VA examination that he did not injure his knees while in service and, rather, believed his current disability to be related to wear and tear due to his service-connected bilateral feet condition. In light of the foregoing, there is no evidence that the Veteran's current degenerative joint disease of the bilateral knees had its onset in service, within one year of separation from service, or is directly related to his military service. There is also no evidence that symptoms from the Veteran's current disability began in service and continued. Significantly, the Veteran has not alleged (nor has he submitted competent evidence to show) that he has suffered from bilateral knee arthritis continuously since service. 38 C.F.R. § § 3.303(d). Consequently, service connection for bilateral degenerative joint disease of the knees on the basis that such became manifest in service and persistent, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. The Board acknowledges that service connection for bilateral degenerative joint disease of the knees may still be granted on a direct basis. Nevertheless, there is no evidence that a medical nexus exists between the Veteran's bilateral degenerative joint disease of the knees and his military service. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed.Cir.2009); 38 C.F.R. § 3.303(a), (d). In fact, as previously reported, the Veteran himself does not contend he suffered an injury to his knees during service, and during the August 2019 Travel Board hearing, he also clarified that he was only seeking service connection on a secondary basis. Accordingly, service connection on a direct basis cannot be established. As to the secondary service connection claim, the crux of the Veteran's claim, the Board finds the preponderance of the evidence is against a finding that the Veteran's bilateral degenerative joint disease of the knees is etiologically related to his service-connected hallux valgus of the bilateral feet. In so finding, the Board notes the record includes several VA examiners' opinions as well as private medical opinions which provide contradictory opinions regarding the nature and etiology of the Veteran's condition. In an October 2014 medical statement (received by VA in November 2014), Dr. D.S., the Veteran's private physician, noted the Veteran had developed hallux valgus deformity of both feet subsequent to the "trauma he endured during his military service," and was now receiving disability for that disability. He then stated the Veteran also had arthritic degeneration in the knees and "would maintain that some of the trauma he previously experienced during military service [was] a contributor to the knee degeneration as well." See October 2014 Third Party Correspondence. This medical opinion appears to relate the Veteran's bilateral knees to his service rather than his service-connected hallux valgus of the bilateral feet, and as noted above, the Veteran does not claim that he has a current bilateral knee disability as a direct result of his military service. Notably, even if accepted as a relevant opinion, Dr. D.S.'s October 2014 medical opinion would not be considered probative as it is conclusory in nature and does not include adequate rationale for that opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (explaining that "most of the probative value of a medical opinion comes from its reasoning" and that "[n]either a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions"). In another letter from Dr. D.S., dated March 2015, but received by VA in July 2015, Dr. D.S. found the Veteran had significant degenerative joint disease of both knees which had evolved over the years. Dr. D.S. then stated that one of the contributing factors in the degeneration of the Veteran's knees was "significant deformity of his feet which ha[d] caused him to alter his gait and put unusual pressure on his knees." Dr. D.S. concluded he would "have to consider [the Veteran's] foot deformity a causative factor for the arthritis in his knees." See July 2015 Private Medical Opinion. While this private opinion does address the Veteran's secondary causation theory for his arthritis of the knees, seemingly relating the degenerative joint disease of both knees to an altered gait caused by feet deformity, the opinion similarly does not include any supportive rationale. In fact, Dr. D.S. used speculative terms in rendering his medical opinion such as "he would consider" the foot deformity a causative factor for arthritis in the knees. Without offering objective medical evidence or rationale to support the opinion, this positive nexus opinion also does not warrant probative weight. Speculative medical opinions are insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Weighed against the positive opinions submitted by the Veteran's treating physician are several negative VA examiners' opinions. First, an October 2015 VA medical opinion found it was less likely than not that the Veteran's degenerative arthritis of the knees was due to or the result of a service-connected condition. In support of that opinion, the examiner found the Veteran did not have a specific injury to his knees while enlisted. Although the Veteran now had mild degenerative arthritis both radiographically and symptomatically, in the examiner's knowledge, there was no data that linked hallux valgus to knee arthritis in a causative way. The examiner noted that knee degenerative joint disease was a common diagnosis in the community and in the Veteran's demographic. See October 2015 VA Medical Opinion. The record also includes an August 2016 VA medical addendum opinion which found that there was no medical evidence that the Veteran's degenerative arthritis of the knees was due to or had been permanently aggravated by his service-connected bilateral foot condition. However, as discussed in the July 2021 Board remand, the Court's Memorandum Decision found the opinion to be inadequate because the medical article relied upon by the examiner addressed a different issue whether walking with a limp because of an injury to one lower extremity caused injury to the opposite lower extremity. Instead, it was noted that in this case, the Veteran argued that the service-connected disabilities in both of his feet had altered his gait which affected his knees. Because this medical addendum opinion was found to be inadequate, another medical examination and addendum opinion was obtained to address the Veteran's secondary service connection claim. In September 2021, the VA examiner diagnosed the Veteran with bilateral knee joint osteoarthritis. The Veteran described the onset of his left knee as "going in and out" with a limp beginning about 1978 and the right knee "going in and out" with limp beginning about 1980. See September 2021 VA examination. After examining the Veteran and reviewing his claims file, the September 2021 examiner opined the Veteran's degenerative arthritis of the left and right knees were less likely than not proximately due to or the result of his service-connected hallux valgus of the left and right foot. As rationale, the examiner noted there was 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 a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5 centimeters so that the individuals gait pattern was altered to the extent that clinically there was an obvious Trendelenburg gait. The examiner then noted that this level of severity was not supported in the Veteran's case based on the record review, history or examination. In reaching this conclusion, the examiner noted an October 2014 and April 2015 record which showed "mild antalgic gait"; an October 2014 VA orthopedic consultation for knee pain where the Veteran was described as having a mild antalgic gait, ambulating with a cane but no swelling or palpable effusion; a similar notation in April 2015; and a June 2019 VA physical therapy note for left knee osteoarthritis, which reported stiffness for several years, but no significant knee pain. The examiner then stated there was no documentation indicating a leg length discrepancy or Trendelenburg gait. The examiner explained a Trendelenburg gait was an abnormal gait resulting from a defective hip abductor mechanism. The primary musculature involved the gluteal musculature, including the gluteus medius and gluteus minimus muscles, and the weakness of these muscles caused dropping of the pelvis to the contralateral side while walking. The examiner stated that one's joint's disease did not spread to another or cause damage to it. Therefore, the degenerative arthritis of the left and right knee was less likely than not related to the hallux valgus, left and right foot. A nexus was not established. Additionally, the September 2021 examiner found the Veteran's left and right knee degenerative arthritis was less likely than not aggravated beyond its natural progression by the service connected hallux valgus, left and right foot. The examiner stated there was no clear evidence from 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 a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5 centimeters so that the individuals gait pattern was altered to the extent that clinically there was an obvious Trendelenburg gait. The examiner again noted that level of severity was not supported based on record review, history or examination. See September 2021 VA medical opinion. After weighing the competing medical opinions above, the Board finds the September 2021 VA negative nexus opinions are more probative than the July 2015 and October 2015 positive nexus opinions provided by the Veteran's private physician. In this regard, the September 2021 VA examiner's medical opinion regarding secondary causation is based on a thorough review of the claims file, is based on an accurate medical history, and provides an explanation that contains clear conclusions with supportive rationale. As for the positive nexus opinions, as previously discussed, the July 2015 and October 2015 opinions are phrased in speculative terms and both opinions lack any supportive medical evidence or rationale which explains the reasoning that the Veteran's foot deformity was a causative factor in the arthritis in his knees. In making the above findings, the Board acknowledges that, generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may also speak to etiology in some limited circumstances in which nexus is obvious merely through observation. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, a lay person, such as the Veteran, is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Therefore, although the Veteran may believe he has bilateral degenerative joint disease of the knees caused or aggravated by his service-connected hallux valgus of the bilateral feet, his lay statements are not competent regarding the etiology of that disability. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In sum, the competent and probative evidence of record fails to indicate that the Veteran's bilateral degenerative joint disease of the knees had its onset in, within one year of separation from service, or is otherwise related to his military service, including caused or aggravated by a service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and service connection for degenerative joint disease of the bilateral knees must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.