Citation Nr: 21075971 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-14 335A DATE: December 22, 2021 ORDER Entitlement to service connection for a right knee disorder, to include osteoarthritis, is granted. Entitlement to service connection for a left knee disorder, to include osteoarthritis, is granted. FINDINGS OF FACT 1. The Veteran's right knee disorder, to include osteoarthritis, is etiologically related to his service. 2. The Veteran's left knee disorder, to include osteoarthritis, is etiologically related to his service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disorder, to include osteoarthritis, are met. 38 U.S.C. §§ 1131, 1154(a), 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left knee disorder, to include osteoarthritis, are met. 38 U.S.C. §§ 1131, 1154(a), 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1979 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). The Veteran subsequently provided sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2021. This matter was previously before the board in June 2021 at which time it was remanded. Service Connection 1. Entitlement to service connection for a right knee disorder, to include osteoarthritis 2. Entitlement to service connection for a right knee disorder, to include osteoarthritis Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) Service connection will also be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service. 38 C.F.R. §§ 3.307, 3.309. Such a chronic disease is presumed to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). If chronicity during service or within one year after discharge is not shown, for chronic disabilities listed under 38 C.F.R. § 3.309(a), such as arthritis, an alternative method of establishing the second and third element of service connection is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Analysis The Veteran has asserted that his right knee and left knee conditions are related to his military service. He has been diagnosed with osteoarthritis. In addition, the Veteran had a partial knee replacement, left knee, in February 2018 and a total knee replacement, right knee, in November 2019. The Veteran's service treatment records do not show complaints, treatment, or diagnosis of an injury or disease of the right knee or left knee. Also, although the Board previously considered the possible application of 38 C.F.R. §§ 3.307,3.309 for the Veteran's bilateral knee arthritis, as the Veteran has less than 90 days of active service, he is not entitled to presumptive service connection based on continuity of symptomatology of the chronic disease of arthritis or the manifestation of such disorder to a compensable degree within the specified time period after discharge. However, in addition to his statements of continuity of symptoms, in June 1990, just 11 years after discharge, the Veteran first sought treatment for his left knee. At that time, the Veteran reported a history of locking in his left knee when arising from a squat or from kneeling during work as a vehicle service repairman. He also reported pain and crepitus. He stated that when he would kneel down and attempt to stand, he would have to roll on his side and painfully force his leg straight. A physician diagnosed an osteochondroma, left knee, by X-ray. An MRI report noted the impression as a faintly sclerotic distal femoral lesion corresponding to an area of an abnormal increased uptake on bone scan of July 1990. The radiologist noted this may represent a bone infarction, chondroma or low sarcoma. The bone scan additionally noted that there was an increased uptake in the region of the distal right femur and the proximal left tibia corresponding to the radiographically visualized abnormalities. The report indicated that the area of abnormal uptake in the left MTP joint is likely degenerative in nature. The record shows that the Veteran is receiving Social Security Administration (SSA) disability benefits. SSA records show that the Veteran worked as a laborer from 1992 to 2000, including heavy lifting, and as a construction electrician from 2000 to 2010. The SSA medical records note chronic knee pain and indicate that the Veteran reported knee problems that began in 1990 when he was working for a carpet company. He underwent X-rays, an MRI, and CT Scan which found osteochondroma in the left fibula and tibia and in the right distal femur. There was also moderately severe tricompartmental degenerative change of the left knee. The radiology report noted that x-rays as far back as 1990 were reviewed and showed similar findings of the left knee. There were mild to moderate degenerative changes of the right knee. In June 2011, SSA noted that the Veteran had a residual functional capacity (RFC) for less than a full range of light work (two hours stand/walk at a maximum is sustainable) due to bilateral knee degenerative joint disease and obesity with a limping gait, painful and decreased ROM, and 4/5 lower extremity strength. The primary diagnosis was noted as "osteoarthrosis and allied disorders." It was further noted that using steps is possible with some discomfort. He walks with a limp favoring his left leg. He cannot do toe walk or heel walk. He cannot do squats. He last worked in August 2015. The SSA found the Veteran to be disabled as of January 1, 2011. The earliest diagnosis in VA clinical records of right knee osteoarthritis and left knee osteoarthritis, by x-ray, appears in March 2016. These records indicate that x-rays show advanced osteoarthritis in both knees. Left knee x-rays show fibrous dysplasia and on the proximal femur, possibly an osteochondroma. Right knee x-rays show enchondroma in the distal femur. The final impression was given as: 1. Advanced bilateral knee osteoarthritis. 2. Benign bone tumors, both knees. April 2016 medical records show bilateral knee examination shows significant medial joint line tenderness with a -5 degree extension to 125 degree flexion. During the April 2021 hearing, the Veteran testified that his left knee disorder can be attributed to his military service. He described "a lot of running, physical training. You know, hitting the ground during activities." He asserted that strenuous activities during military service put strain on his knees. He testified that the training occurred on the hard pavement in the hot sun. "They'd put us down on the ground and leave us there." He reported specific instances during service. First, he had an ingrown toenail that "would up looking like a rotten tomato by the time they did anything with it." Also, he had a nail come through his boot and stick him in the heel. He stated that the Drill Sergeant "just took his rifle, slammed the boot down on the ground and said put it back on and go on." The Veteran stated that he believes these incidents threw his stride off. In addition, during grenade training he saw other servicemembers "helped to the ground pretty hard" and so he "took the dive on my own." He did not complain about pain or issues with his knees or seek any treatment because, "They didn't care too much for whiners." He indicated that he just carried on with the pain. He indicated that his left knee disorder continuously progressed since he was discharged from service. He stated that he had a limp for many years. He tolerated the pain until the 1990's when he sought treatment. He stated that his knee would lock and he would have to lay down on the ground and straighten his leg out. "It would sound like a firecracker going off." He testified that he was just bearing with the pain and learned how to walk and "throw my weight to where it wasn't as discomfortable with it." He stated that in 1990 the medical center ran tests and that his knees were "in bad shape." The Veteran further testified that after service, he worked in construction and factory work and did not have any knee injuries. He stated that in the last few years that he was working, he couldn't last for a full eight-hour period. He was told he would have to do something about his knees or he would lose his job. He stated that in 2008 or 2009 he was unable to work anymore. He stated that between 2009 and 2017, his knee disorder progressively worsened. He stated that an orthopedic surgeon told him that his left knee was worse and then it put more strain on his right knee. He stated that both knees have been replaced, a partial left knee replacement in February 2018 and a total right knee replacement in 2019. In June 2021, the Board remanded this matter, finding that the Veteran was entitled to a VA examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006). Specifically, the Board found that the Veteran has a current diagnosis of a disability. Also, he has competently and credibly testified and stated that training during service caused pain and discomfort in his knees that has progressively worsened through the years. Finally, the Board found insufficient medical evidence in the file to permit a decision on the merits. Pursuant to the remand, the Veteran was afforded a VA examination in July 2021. The examiner noted a diagnosis of residuals of right knee total arthroplasty in 2019 and left knee osteoarthritis status post unicompartmental arthroplasty in 2018. The Veteran reported that onset was in the mid-1980s. He stated that "I would be down on my knees or anything with my leg bent and my knee would lock up." The left knee symptoms began prior to the right knee. He stated that he saw his primary care physician for knee pain and was referred to orthopedic physicians. He stated, "they told me I had tumors in both knees and said I would need knee replacements in both knees." He reported that he had a partial knee replacement on the left knee and full knee replacement on the right knee. He had physical therapy after both knee operations. He stated that after the replacements his knees are not in constant pain but he doesn't feel he has the normal mobility. He stated that there is discomfort in his knees bilaterally especially after being active. He stated that when he kneels down, "I can feel the pressure and feels like I'm kneeling down on gravel." After a long day of working or being active, his knees will have an increase in pain. He feels unstable when going down stairs. He reported an increase in pain while standing or sitting still for a prolonged period of time. The Veteran also reported flareups once a month lasting 30 minutes and described these as throbbing and aching pain, following standing for prolonged periods of time or long days of physical activity. Functional impairment was described as limited in standing or sitting for long periods of time, going down stairs, and kneeling. Evidence of pain was noted on active motion and passive motion which causes functional loss. Range of motion was noted as flexion, 130 degrees; extension 4 degrees. Residual symptoms, right knee and left knee, were noted as decreased range of motion and pain on active and passive motion. The examiner noted a 2016 X-ray report indicating degenerative osteoarthritis of the left knee and large cystic lesion in the posterior aspect of the proximal tibia with focal blastic changes. The X-ray report for the right knee showed minimal osteoarthritis, small osteophytes, right knee on the posterior aspect of the patella and the intercondylar area, narrowing of the medial compartment, regular calcification in the distal third of the femur, status old bone infarction. A medical opinion was requested following the examination. In October 2021, the examiner opined that the Veteran's right and left 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. The rationale was as follows: The Veteran served from May to August 1979. His entrance examination noted normal knees, no knee concerns noted. His service treatment records are silent for any complaint, diagnosis or treatment of either knee. No separation exam was noted. The file shows bilateral knee pain in January 2016. The Veteran did rodeo for over 30 years, pain since 1990 when B "tumors" found as part of worker's compensation case while working for carpet company. The Veteran went on disability a few years prior to the examination. X-rays show advanced bilateral knee osteoarthritis. The file also shows the Veteran worked as vehicle service repairman, laborer, carpet company, and participated in rodeo events for 30 years. There is no medical evidence presented to support the Veteran's knee osteoarthritis (2016) nor bone tumors (1990) are due to active duty service. His first knee complaints noted over 10 years post separation from service therefore intercurrent injury/disease cannot be ruled out as an etiology. MOS does not in itself cause or lead to any specific injury - the Veteran had no knee complaints during active duty period nor within one year of separation. The Veteran's lay testimony establishes a subjective chronicity of symptoms but he is not qualified to ascribe symptoms to a diagnosis or determine an etiology. The medical model states all decisions of medical professionals are to be based on credible medical evidence. Lay testimony does not constitute credible diagnosable medical evidence. Medical evidence supports the Veteran's post service work and recreational activities as the most likely cause of his bilateral knee osteoarthritis. There is no medical evidence presented to support the right knee is due to the left knee. A nexus has not been established. Osteoarthritis is the most common form of arthritis, affecting millions of people worldwide. It occurs when the protective cartilage that cushions the ends of your bones wears down over time. Although osteoarthritis can damage any joint, the disorder most commonly affects joints in your hands, knees, hips and spine. Osteoarthritis occurs when the cartilage that cushions the ends of bones in your joints gradually deteriorates. Cartilage is a firm, slippery tissue that enables nearly frictionless joint motion. Eventually, if the cartilage wears down completely, bone will rub on bone. Osteoarthritis has often been referred to as a "wear and tear" disease. Risk factors: older age, female sex, obesity, joint injury, genetic, bone deformities, and certain metabolic diseases. mayoclinic.org. The examiner also opined that it is less likely than not that the Veteran's right knee condition was caused by his left knee condition with the same rationale. The Board finds that the VA examiner's opinion is inadequate. The examiner states that the Veteran's service treatment records are silent for any complaint, diagnosis or treatment of either knee but also notes that there is no separation file in the record. He acknowledges that the Veteran reported the onset of symptoms in the mid-1980s after discharge in 1979 but states that he did not report symptoms until 10 years after service. He notes that the Veteran receives Social Security disability benefits but does not address the associated medical records which include a radiology report noting that X-rays as far back as 1990 were reviewed. Nor does the examiner acknowledge that the Veteran's SSA medical records show that he is disabled specifically due to bilateral knee degenerative joint disease and obesity with a limping gait, painful and decreased ROM, and 4/5 lower extremity strength. In addition, the examiner does not adequately address the Veteran's lay statements. The examiner conceded that the Veteran's statements establish chronicity of symptoms but then discounts said statements as he asserted these statements are not medical evidence. However, as arthritis is a chronic disease, service connection may be granted under a theory of chronicity and continuity of symptomatology. 38 C.F.R. §§ 3.303(a)(b), 3.309(a). Lay statements may additionally be considered as competent evidence of a continuity of symptomatology. Also, it is for the Board to whether the lay statements establish a continuity of symptomatology. Further, while the examiner states that an intercurrent injury/disease "cannot be ruled out" as an etiology, he does not find that such intercurrent injury/disease is the only cause, or even a cause, of the Veteran's knee disorders and therefore this part of the opinion is speculative. The Board finds the October 2021 opinion is entitled to low probative value. The Board finds that the Veteran's testimony and competent lay statements constitute credible evidence of a continuity of symptomatology that is entitled to significant probative value. In summary, the Board finds that the Veteran's SSA and VA medical records, testimony, and lay statements provide circumstantial evidence of the onset of a bilateral knee disorder during service and a continuity of symptomatology thereafter. X-ray evidence of degenerative changes were already noted on X-rays in 1990, and while there is an opinion that speculates that this indicates the possibility of an intercurrent injury between service and the 1990 X-rays, the Board finds that it just as easily reflects a causal relationship between these changes and service. In addition, even though the Veteran does not have the requisite 90 days of service to warrant application of 38 C.F.R. §§ 3.307, 3.309, the fact remains that the Veteran's bilateral knee arthritis is a chronic disorder and the Veteran's has asserted a continuity of symptoms since his in-service injury. The Veteran is considered competent to report that he experienced knee pain during service due to the circumstances of his service, and also competent to report that he continued to experience symptoms after he was discharged. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds the Veteran's statements of continuity of symptomatology are credible and entitled to high probative value. In addition, as was alluded to earlier, while the VA examiner stated that intercurrent causes could not be ruled out, that limited mention without further discussion is not sufficient to show that a preponderance of the evidence is against the claim. There is also no medical evidence of record that demonstrates that the Veteran's knees were asymptomatic at any time between his discharge in 1979 and 1990. Accordingly, the Board finds the evidence is at least in equipoise as to a nexus between the Veteran's left knee disorder and right knee disorder, diagnosed as osteoarthritis, and his period of active service. Therefore, the Board will resolve all doubt in the Veteran's favor and find that service connection is warranted for the Veteran's right and left knee disorders, diagnosed as osteoarthritis. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.