Citation Nr: 21006329 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-25 014 DATE: February 3, 2021 ORDER Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a right knee disability, secondary to a service-connected left knee disability, is granted. REMANDED Entitlement to service connection for a lower back disability is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, his current left knee disability is related to service. 2. The Veteran’s current right knee disability is causally related to his service-connected left knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a). 2. 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, 3.159, 3.303(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to October 1972 and from October 1972 to August 1995. These claims arose to the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in December 2019. A transcript of that hearing is associated with the file. The Board remanded these matters for further evidentiary development in April 2020. In addition to the claims listed above, the Board also remanded a claim for service connection for sleep apnea. Following a VA examination and positive nexus opinion, the RO granted that claim in a September 2020 rating decision; hence, that issue is no longer on appeal. Service Connection 1. Entitlement to service connection for a left knee disability The Veteran contends his current left knee disability is related to service. For the following reasons, the Board agrees service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Initially, the record shows the Veteran has been diagnosed with a left knee disability during the pendency of his appeal. A VA Compensation and Pension (C&P) examination report from September 2020 shows a diagnosis of left knee strain with degenerative arthritis. Thus, the current disability element of his service connection claim has been met. See 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a); see also Holton, 557 F.3d at 1366. The record further shows the Veteran injured his left knee in 1992; his service treatment records reflect he was diagnosed with patellar tendinitis in June 1992. Accordingly, the “in-service incurrence” element is also met. In a September 2020 C&P opinion, a VA examiner appeared to conclude it was less likely than not that the Veteran’s left knee disability was related to his in-service injury. However, upon closer inspection, the examiner actually provided a positive nexus opinion; the examiner noted the Veteran “developed a primary in service left knee condition,” stating his right knee condition (discussed below) began as a result of the left knee. Thus, the examiner stated, “it is at least as likely as not that [the Veteran’s] left knee is a direct result of service[].” (The confusion in the examiner’s opinion arose from the fact the Veteran has previously asserted his knee problems were due to his lower back disability; the examiner opined that was not the case.) In sum, the weight of the evidence clearly supports the Veteran’s claim that his current left knee disability is related to a documented in-service injury. There is credible lay and medical evidence of record, including a positive nexus opinion authored by a VA medical professional, that supports a nexus between his current left knee strain with degenerative arthritis and an in-service diagnosis of patellar tendinitis. See 38 C.F.R. § 3.303(a). Thus, the Board finds the elements of service connection with respect to a left knee disability have been met, and the Veteran’s claim will be granted. See 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a); see also Holton, 557 F.3d at 1366. 2. Entitlement to service connection for a right knee disability, secondary to a service-connected left knee disability The Veteran contends he is entitled to service connection for a right knee disability, secondary to his left knee disability. In addition to the provisions regarding direct service connection outlined above, service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Initially, the record shows that the Veteran has been diagnosed with a right knee disability, specifically a right knee strain with degenerative arthritis as noted in a September 2020 C&P report. Thus, the current disability element of his service connection claim has been met. See 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a); see also Holton, 557 F.3d at 1366. As noted above, the September 2020 C&P examiner included an opinion wherein he explained the Veteran developed a left knee disability in service which was documented in his records. The examiner continued, “additionally [the Veteran] then developed his current right knee disability due to changes in gait and accomodation and now has a progressive degenerative condition in both [knees]. [T]herefore it is at least as likely as not that his left knee is a direct result of services and his right knee is a secondary result of this left knee.” In light of the above, the Board finds the weight of the evidence clearly supports a finding that the Veteran’s current right knee disability is causally related to his (now service-connected) left knee disability. There is credible lay and medical evidence, including a detailed positive nexus opinion from a C&P examiner, that supports a nexus between his right knee disability and his service-connected left knee disability. See 38 C.F.R. § 3.310. Service connection for a right knee disability will therefore be granted. See 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.310; see also Holton, 557 F.3d at 1366. REASONS FOR REMAND Entitlement to service connection for a lower back disability is remanded. The Veteran contends he is entitled to service connection for a lower back disability stemming from an in-service fall during routine exercises that caused him to snap a tendon in his leg and smash the vertebrae in his back. At the Veteran’s Board hearing, he stated private records dating from the early 2000s, would demonstrate continuity of care for a lower back disability since his retirement from service. In its April 2020 remand, the Board requested the Veteran provide information to obtain these private medical records. To date, the Veteran has not provided this information. The Board also directed the RO to afford the Veteran an examination to evaluate his contentions. A C&P examination was provided in September 2020. At that examination, the examiner determined the Veteran’s lower back disability was not related to service; by way of rationale, the examiner noted only that there was “no documentation of an in-service back injury.” The examiner acknowledged the Veteran reported an injury but nonetheless determined that because there was “no documentation,” no nexus could be established. The Board finds the September 2020 C&P examiner’s conclusion to be inadequate, as the opinion relies solely on the absence of in-service medical records documenting a back injury. The opinion does not meaningfully address the Veteran’s competent lay contentions. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning the onset of symptoms, if credible, is competent, regardless of the lack of contemporaneous medical evidence). Accordingly, an additional examination is in order. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of the Veteran’s lower back disability. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for a diagnosis are met. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s disability was incurred in or otherwise related to the Veteran’s service, to include as due to the Veteran’s reported in-service back injury. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s lower back disability was caused or aggravated by the Veteran’s now service-connected knee disabilities. The examiner should specifically address the September 2020 C&P opinion in which it was noted the Veteran’s left knee disability caused an abnormal gait, and discuss whether that could have caused or aggravated his lower back disability. (d) The examiner is specifically asked to comment on the Veteran’s contention that his disability stemmed from an in-service fall during routine exercises that caused him to snap a tendon in his leg and smash the vertebrae in his back. The examiner should also discuss the Veteran’s reports that he received continuous care for his back problems since service. (e) If it is determined that there is another likely etiology for the Veteran’s disability, that should be stated. The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, 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.