Citation Nr: 21007095 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-62 582 DATE: February 8, 2021 ORDER Entitlement to service connection for left knee strain with degenerative arthritis and bursitis is granted. FINDING OF FACT The Veteran’s left knee strain with degenerative arthritis and bursitis is related to an in-service injury. CONCLUSION OF LAW The criteria for entitlement to service connection for left knee strain with degenerative arthritis and bursitis are met. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R.§§3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Air Force from October 1984 to September 1990 and in the Coast Guard from September 2001 to December 2001, and from January 2003 to June 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This issue was previously before the Board in November 2018 at which time it was denied. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 decision, the Court vacated and remanded the November 2018 Board decision. This issue has been returned to the Board for further appellate consideration. 1. Entitlement to service connection for left knee strain with degenerative arthritis and bursitis Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a chronic disease, is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). Continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Analysis The Veteran has asserted that his left knee strain with degenerative arthritis and bursitis (“left knee disorder”) is related to his military service. Service treatment records show that in 1985 the Veteran injured his knee while on active duty. He has indicated that he has had ongoing knee pain since then, and that medication prescribed for other musculoskeletal injuries has allowed him to live with the pain. He has stated that he feels his degenerative arthritis is a progression of his 1985 in-service knee injury. Pursuant to a February 2017 VA examination, the Veteran has a current diagnosis of knee strain, degenerative arthritis, and bursitis of the left knee. Therefore, the first element of service connection, a current diagnosis, has been established. Service treatment records establish the incurrence of a knee injury during service in August 1985. Therefore, the Veteran has established the second element required for service connection, an in-service incurrence, injury, or illness. The crux of the Veteran’s appeal is whether the evidence establishes a nexus between his current disability and his in-service injury. The Veteran’s service treatment records from his initial period of active service in the Air Force show that he twisted his left knee while playing football in May 1985 and sought treatment for joint tenderness and painful motion. X-rays were negative. The Veteran was diagnosed with medial collateral ligament (MCL) strain. The Veteran’s left knee was immobilized for three weeks. Service treatment records also show complaints of and treatment for low back pain and muscle strain in September 1988 and diagnosis and treatment of low back strain in January 1990. These records are relevant to the Veteran’s claim for a left knee disorder as he has asserted that medication provided for his other musculoskeletal disorders during service also alleviated his left knee pain. The Board notes that the Veteran’s service treatment records are incomplete. In August 1990, the Veteran requested a medical examination in advance of his discharge from the Air Force. An examination was scheduled, however there is no record of it. Other medical records missing from the Veteran’s file include treatment records from his Coast Guard service dated prior to January 24, 2003. In June 2018, VA noted that it had exhausted all efforts to obtain the missing records to no avail. Available records from January 24, 2003, to June 2003 are silent for knee abnormalities; these records reflect that the Veteran was treated for other musculoskeletal disorders and prescribed medications for treatment. Private medical records dated after the Veteran’s final period of active service in June 2003, but prior to separation from the Coast Guard Reserve, indicate a history of knee pain. Treatment records after his separation from the Coast Guard reserve note prescriptions for pain medication and anti-inflammatory medication. The Veteran was afforded a VA examination in February 2017. The Veteran reported a history of chronic left knee pain, with flare-ups and limitation of motion. He reported the onset of symptoms followed “combat training” during his Air Force service. He stated that the symptoms progressively worsened over time. Based on range of motion testing and x-ray evaluation, the VA examiner diagnosed the Veteran with left knee degenerative arthritis, bursitis, and strain. The examiner opined that the Veteran’s left knee disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. The examiner’s rationale was that while service treatment records showed a left knee strain during service in 1985, the records do not indicate ongoing treatment or complaints during service. The examiner opined that the Veteran’s current knee disorder is likely age and weight related. The Veteran’s claim for a left knee disorder was denied in an April 2017 rating decision. In July 2017 the Veteran submitted a Notice of Disagreement. He stated that he injured his left knee while on active duty and was in a knee brace for three weeks. After the injury, he “just learned to deal with the pain on my own.” He stated that he also was taking pain medication for a foot disorder which helped with the pain he had in his knee. The Veteran stated that he believes his degenerative arthritis is a progression of the in-service knee injury as “the pain has always been the same since I injured it in 1985.” In his Form 9 appeal the Veteran stated that the initial injury occurred while he was on active duty and that he has had continued issues since then. He stated that “I did not get seen all of the time for my knee because the medication I was taking for other physical conditions covered the pain in my knee so I thought it would be a moot point to get different medication. The symptoms have been the same since the initial injury and there were no other injuries to my knee that would cause my current disability.” In a November 2018 decision, the Board denied service connection for the Veteran’s left knee disorder, diagnosed as degenerative arthritis with bursitis and strain. The Board acknowledged the Veteran’s competent and credible statements reporting his history of knee symptoms, including for continuity of symptomatology purposes. However, the Board found that the February 2017 VA examination was highly probative and outweighed the Veteran’s statements. Relying on the examination, the Board found there was no nexus between the Veteran’s left knee disorder and his military service. The Veteran appealed the Board’s denial to the Court. In a June 2020 decision, the Court vacated and remanded the November 2018 Board decision. The Court found the Board’s decision to be erroneous because the Board failed to return the February 2017 examination for clarification. 38 C.F.R. section 4.2. The Court indicated that February 2017 VA examiner relied on a lack of treatment records for his negative nexus opinion, but then without explanation attributed the appellant’s knee condition to weight and age. Given the fact that the Veteran reported that he simply managed to live with a persistent knee condition over time, the Court found that it is unclear how the examiner determined that the likely cause of the appellant's bursitis, knee strains, and osteoarthritis were related to weight and age. The Court also found that the examiner did not explain why an ongoing knee condition that limits the Veteran’s mobility would not have contributed to the Veteran’s weight problems. Here, upon further review and consideration of the Court’s findings, the Board finds that the February 2017 VA examiner’s opinion is entitled to low probative weight as it is based on an inadequate rationale. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that the probative value of a medical opinion primarily comes from the physician’s reasoning. The Court found that “factually accurate, fully articulated, and sound reasoning for the medical conclusion contributes probative value to a medical opinion.” The examiner opined that it was less likely than not that the appellant's left knee disorder was related to his in-service injury because “[w]hile service medical records indicate a left knee MCL strain while playing football on active duty in 1985, there is no record of this being an ongoing problem during the remainder of his military career or thereafter." However, as noted above, many of the Veteran’s service medical records, including his Air Force discharge examination, and all service treatment records of Coast Guard service prior to January 24, 2003, were missing and unavailable for review. From that date on, service treatment records are silent for knee abnormalities. However, service treatment records indicate that the Veteran injured his back and was diagnosed with low back strain in August 1987, and the Veteran has stated that he was treated for other musculoskeletal pain with medication which concurrently helped him cope with his knee pain. In addition, private treatment records prior to separation from the Coast Guard reserve are significant for history of knee pain. Further, post-service medical records indicate that the Veteran was treated for other musculoskeletal disorders with medications, including a May 2006 private medical note that indicates the Veteran was prescribed oxycodone for musculoskeletal pain. The Board finds that the medical opinion offered by the examiner is largely based on the absence of medical records themselves rather than the absence of evidence in medical records. The VA examiner relied on the missing records to prove a negative – that the Veteran’s left knee disorder is not related to service, without adequately addressing other evidence of record, including lay evidence. Buchanan v. v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds that especially in light of the missing records, the examiner did not adequately address the Veteran’s competent and credible lay statements as to the continuity of his symptoms following his in-service injury. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007), Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner also did not address the Veteran’s statements that medication prescribed for other disorders also helped him with his knee pain. Importantly, the Veteran also states that he has had no other injuries to his knee since service, which was not addressed by the VA examiner. Without sufficiently addressing the Veteran’s statements and relying on the incomplete record to find there is no nexus between the Veteran’s left knee disorder and his in-service injury, the examiner then offered an alternative cause for the Veteran’s left knee disorder, asserting that it was age-related and obesity-related. However, as noted by the Court in its remand, the examiner provided no rationale for that conclusion. The Board finds the examiner’s opinion is entitled to low probative value as the rationale is incomplete and conclusory. 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). As noted by the Court in its remand, the prior Board conceded both a diagnosis and an in-service event and acknowledged the Veteran’s competent and credible lay statements, including as to continuity of symptomatology. The Veteran's left knee disorder is a chronic disorder and the Veteran's has asserted a continuity of symptoms since his in-service injury in the Air Force. The Veteran is competent to report that he injured his knee during service and also competent to report that he continued to experience symptoms including knee pain during service and 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 of the same knee pain he experienced during service due to an in-service injury are credible. The Board further notes that there is no evidence that the Veteran's left knee disorder was caused by a post-service event or injury. In addition, the Board finds the Veteran’s statements that pain medication provided for other disorders identified in service treatment records also helped him cope with the pain from his knee disorder to be credible and supported by the medical records. Medical records during and after service note complaints of and treatment for lower back strain and foot/heel pain. The Board finds the Veteran’s lay statements are entitled to high probative value. Although medical evidence is generally necessary for a nexus to service, lay evidence can be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, to link chronic in-service symptoms to a diagnosed current disability, or as a substitute for a nexus. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). "Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service." 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1339-40 (Fed. Cir. 2013). The Board finds that the Veteran’s lay statements provide the requisite showing of the onset of a left knee disorder during service and a continuity of symptomatology thereafter that acts as a substitute for a nexus opinion. For all of the foregoing reasons, therefore, the Board resolves all doubt in the Veteran's favor and finds that service connection is warranted for the Veteran’s left knee strain with degenerative arthritis and bursitis. 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.