Citation Nr: 21007142 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 18-49 253 DATE: February 8, 2021 ORDER Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a left knee disability is granted. FINDINGS OF FACT Resolving reasonable doubt in the Veteran’s favor, the Veteran’s right knee disability is secondary to his service-connected multiple sclerosis disability. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s left knee disability is secondary to his service-connected multiple sclerosis disability. CONCLUSIONS OF LAW The criteria for service connection for a right knee disability have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. The criteria for service connection for a left knee disability have been met. 38 U.S.C. § 1110; 5107; 38 C.F.R. § 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1970 to October 1970. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran was scheduled to appear for a hearing in January 2021 which was cancelled after the Veteran, through his representative withdrew the request for a hearing. The Veteran through his representative requested that the Board proceed with a review of his record and issue a decision. Accordingly, the Board finds that the Veteran’s request for a hearing is withdrawn. 38 C.F.R. §§ 20.702(e); 20.704(e). The issues of service connection for a bilateral knee disability are properly before the Board for adjudication. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107 (a)(2) and 38 C.F.R. § 20.902 (c). Service Connection Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a right knee disability is granted. 2. Entitlement to service connection for a left knee disability is granted. The Veteran asserts that he is entitled to service connection for his bilateral knee disability. Specifically, the Veteran through his representative asserts that the Veteran has a current bilateral knee disability which is related to the Veteran’s now service-connected multiple sclerosis disability on a secondary basis. The Veteran through his representative stated that the August 2020 Compensation and Pension (C & P) examination establishes a current bilateral knee disability as it reveals that the Veteran has reduced strength in his knees bilaterally, decreased deep tendon reflex of the knees bilaterally, decreased sensation of the knees bilaterally, and mild muscle weakness of the lower extremities. Furthermore, the Veteran through his representative stated that the Veteran is now service connected for multiple sclerosis and moreover, the August 2020 C & P examination establishes that the Veteran’s bilateral knee condition is due to multiple sclerosis. See Third Party Correspondence Received by the Board in December 2020. The Veteran is currently service connected for multiple sclerosis pursuant to diagnostic code 8018-6847. The Veteran was granted service connection for multiple sclerosis in a November 2020 Board decision. The Veteran is also currently service connected for voiding dysfunction associated with multiple sclerosis, weakness of left upper extremity associated with multiple sclerosis, weakness of right upper extremity associated with multiple sclerosis, weakness of left lower extremity associated with multiple sclerosis, weakness of right lower extremity associated with multiple sclerosis, loss of bowel control associated with multiple sclerosis, and coronary artery disease. The Veteran’s service treatment records (STRs) appear to be incomplete. The Veteran’s STRs do not contain the Veteran’s separation examination. The Veteran’s STRs include a note that states that the Veteran’s separation physical is missing in the medical record. The note states that a request was made in February 1971 to an inspector instructor for the separation examination and there is no evidence that it was sent. It is not clear whether the Veteran’s separation examination is available and has not yet been sent or if there is no record of the separation examination. The Veteran’s post service treatment records indicate that he has bilateral knee issues. A treatment note dated February 2013 states that the Veteran’s pain is more than it was before and is primarily situated in the knee. A June 2013 treatment record states that the Veteran experienced myofascial and knee pain. A July 2013 treatment record states that the Veteran reported that his multiple sclerosis condition has worsened since his last visit in February and it is also noted that the Veteran experienced worsening pain in the knee, issues with walking, and fell twice. An April 2014 treatment record states that the Veteran had a right knee replacement surgery in March 2014 and that he wakes up with knee pain. An October 2017 treatment note states that the Veteran has osteoarthritis of the right knee and that the Veteran is to have a total knee procedure on the left knee for osteoarthritis. There are several other post service treatment records that include complaints and treatment related to bilateral knee issues. The Veteran’s August 2020 C & P Examination for multiple sclerosis provides valuable insight into the Veteran’s bilateral knee condition. The examination for the Veteran’s multiple sclerosis included an assessment of other disabilities, including the Veteran’s bilateral knee disabilities. The examiner noted that the Veteran has multiple sclerosis which was diagnosed in 1994. Additionally, the examiner noted that the Veteran’s knee extension is less than normal strength for both the right and left knee. The examiner also noted that the Veteran had decreased deep tendon reflexes of the right and left knee. Additionally, the examiner noted that the Veteran’s thigh/knee (L3/4) demonstrated decreased sensation bilaterally. Further, the examiner found that the Veteran experienced mild bilateral lower extremity muscle weakness. The examiner also noted that the Veteran regularly uses a wheelchair, cane, and walker as assistive devices for his multiple sclerosis condition. After a review of the evidence, the Board finds that service connection for a bilateral knee disability is warranted. With regard to current disability, the Board finds that the Veteran currently has a bilateral knee disability as established by the treatment records and August 2020 C & P examination report discussed above. Affording the Veteran the benefit of the doubt, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s bilateral knee disability was caused by his service-connected multiple sclerosis disability. The Board finds that the August 2020 C & P examination and the statements set forth by the Veteran’s representative highlighting the findings of the examination have great probative weight. The Board finds persuasive that the Veteran’s bilateral knee disability were evaluated as part of the multiple sclerosis examination. The examiner in connection with the examination for multiple sclerosis found that the Veteran experienced deficiencies with both his right and left knee including decreased strength in knee extension, decreased tendon reflexes, lower extremity muscle weakness, and decreased sensation. The Board finds that these medical findings which were made in conjunction with an assessment of the Veteran’s service-connected multiple sclerosis disability are sufficient to establish that it is at least as likely as not that the Veteran’s bilateral knee disability is related to multiple sclerosis. This is buttressed by the fact that the Veteran is also service connected for the other complications associated with multiple sclerosis noted in the examination report, including voiding dysfunction, weakness of the bilateral upper and lower extremities, and loss of bowel control. Accordingly, the Board has weighed the evidence of record, and finds that the evidence is at least in relative equipoise as to the Veteran’s current bilateral knee disability and the causal relationship between the Veteran’s bilateral knee disability and his service-connected multiple sclerosis disability. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board resolves the reasonable doubt in the Veteran’s favor and finds that the evidence supports the grant of service connection for bilateral knee disability as secondary to the Veteran’s service-connected multiple sclerosis disability. See 38 U.S.C. § 5107. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, 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.