Citation Nr: 21010636 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-25 730 DATE: February 25, 2021 ORDER Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a bilateral foot disability is granted. FINDINGS OF FACT 1. It is as likely as not that the Veteran's current right knee disability is related to active duty service. 2. It is as likely as not that the Veteran's current bilateral foot disability is related to active duty service. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor 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, 3.303. 2. With resolution of reasonable doubt in the Veteran's favor the criteria for service connection for a bilateral foot disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1988 to December 1991. This matter was previously remanded by the Board for additional development in December 2018 and August 2020. Service Connection Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the evidence 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). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). The Veteran’s contention has essentially been that the nature of his active duty service resulted in knee and bilateral foot disabilities. Specifically, he has indicated that the rigorous physical activities during special forces training and airborne training led to the degeneration of his knees and feet. He described “walking and/or running hundreds of miles, carrying excessive amounts of weight while wearing combat boots.” In this regard, he submitted copies of service personnel records that noted that he completed the Special Forces Assessment and Selection Course in 1990 and that he completed the Airborne Course in 1990 (his DD 214 also noted receipt of the Parachute Badge). 1. Entitlement to service connection for a right knee disability The Veteran’s service treatment records (STRs) appear to be silent as to any complaint or treatment related to the right knee. The Veteran declined to undergo a physical examination at the end of active duty in 1991. In a May 1995 physical examination for transfer to the National Guard, the Veteran denied any knee trouble. The Board acknowledges that the evidence of record variously references post-service incidents and injuries related to the Veteran’s right knee. Post-service treatment records indicate that the Veteran tore his right anterior cruciate ligament (ACL), his right lateral meniscus and had an avulsion fracture of the right lateral tibia in September 1997 and that he had surgery to repair the ACL and meniscus tears in October 1997. Contemporaneous private medical records referenced a twisting injury while working as a security officer. The Veteran has reported that the injury occurred while walking at work and that there was no acute trauma. He asserts that the injury would not have occurred but for the ongoing trauma he sustained during active military service. The medical evidence indicates that the Veteran had an additional February 1999 right knee surgery. The Veteran stated on his November 2011 claim that “by age 28 need[ing] 2 complete right knee reconstructions...is not normal for a healthy 28-year-old unless that person endured service in the U.S. Army” and he stated in January 2012 that “the physical extremes of my service resulted and/or contributed to my [right] knee falling part in my 20s.” The Board also acknowledges that the Veteran was involved in a serious motor vehicle accident (MVA) in November 2001. This resulted in a left patellar fracture that required surgery as well as a follow-up surgery in February 2002 to remove hardware from the left patella and the right tibia. The Veteran underwent a VA examination for knee conditions in October 2019. The examiner noted diagnoses of the right ACL tear in 1999 and osteoarthritis of the right knee. The examiner opined that the Veteran’s current right knee disability is less likely than not etiologically related to his active military service. He noted that there is no evidence of a right knee injury or pain during service, and there is strong evidence that the right knee condition was caused by or incurred during the Veteran’s post-military occupation in 1997. The Veteran submitted a June 2020 statement challenging the adequacy of the October 2019 examination. Specifically, he asserted that his post-military occupation was not the cause of the injury, but rather the degeneration and damage from his military service led to the collapse of his right knee while he happened to be at work. In its August 2020 decision, the Board remanded the issue for an addendum opinion because the October 2019 examiner provided a positive nexus opinion for the Veteran’s left knee disability. The Board found that if the Veteran’s occupational injury did not deter the examiner from rendering a positive nexus opinion for his left knee disability, it should not be the sole basis for concluding that the Veteran’s right knee condition is not related to service, especially given the fact that the examiner explicitly stated that it is plausible that his training during service can cause injuries to the lower extremities. Pursuant to the August 2020 remand, a November 2020 VA medical opinion was obtained whereby the examiner opined that the Veteran’s right knee disability is at least as likely as not related to his active military service. Consistent with the previous examiner’s rationale for the Veteran’s left knee disability, the November 2020 VA examiner explained that the Veteran is in receipt of a Special Forces training certificate and a Parachutist Badge, and there is a high incidence of damage known to be caused by repetitive impact with hard surfaces, which the Veteran experienced throughout service. The Board is cognizant that a subsequent November 2020 addendum opinion was obtained whereby the examiner opined that the Veteran’s bilateral knee disabilities are not etiologically related to service because the Veteran is currently (or recently) employed as an armed guard and is able to stand 12 to 13 hours per day for his job, and thus, does not have a knee disability. The Board does not find this opinion to be probative as the rationale is inadequate and it has already been established that the Veteran has a diagnosis of osteoarthritis of the right knee. The examiner did not conduct any physical examination of the Veteran and based his opinion solely on the Veteran’s employment status. The examiner did not provide adequate reasons or bases as to why the Veteran’s currently diagnosed right knee osteoarthritis is unrelated to his vigorous military service. Given the medical nexus established by the initial November 2020 VA opinion along with the competent and credible lay evidence and military service records demonstrating the nature of the Veteran’s active duty service, the Board finds that the evidence is in relative equipoise with the claim as to whether the Veteran's current right knee disability is related to service. 2. Entitlement to service connection for a bilateral foot disability At the outset, the Board notes that the Veteran’s contentions regarding his bilateral foot disability are similar to those regarding his right knee disability in that he asserts that the rigorous nature of his active duty service as described above caused injury in his feet over time. The Veteran’s service treatment records (STRs) appear to be silent as to any complaint or treatment related to the feet. In a May 1995 physical examination for transfer to the National Guard, the Veteran denied any foot trouble; however, the examiner noted bilateral asymptomatic pes planus. The Veteran underwent a VA examination for foot conditions in October 2019 whereby the examiner diagnosed the Veteran with bilateral pes planus and bilateral degenerative arthritis of the feet. The examiner opined that the Veteran’s current foot disabilities were less likely than not related to his active duty service. The examiner stated that while the Veteran’s bilateral foot condition is less likely than not related to service, “according to [the] Army Public Health Center, repetitive overuse of joints with heavy equipment can cause pain in the limbs,” and “microtrauma that occurs during services can lead to life-long musculoskeletal disabilities such as sprains, arthritis, pain in bones... and/or associated damage that may be functioning beyond it’s normal degree of function.” Additionally, the examiner provided no alternative etiology as to the Veteran’s bilateral foot condition. Because of the conflicting nature of the examiner’s rationale, the Board remanded the issue for an addendum opinion in its August 2020 decision. In a November 2020 addendum opinion, the VA examiner opined that the Veteran’s bilateral foot disabilities were as likely as not related to his active duty service. He explained that, although there are no documented injuries in service, the Veteran is a receipt of Parachutist Badge and there is a high incidence of foot conditions in ex-parachutists, especially those who achieved a Parachutist Badge, due to damage known to be caused by repetitive impact with hard surfaces. Therefore, the examiner concluded that it is at least as likely as not that the Veteran’s bilateral pes planus and arthritis are due to his military service. The Board is cognizant that a subsequent November 2020 addendum opinion was obtained whereby the examiner opined that the Veteran’s bilateral foot disabilities are not etiologically related to service because of the Veteran’s recent employment. Again, the Board does not find this opinion to be probative as the rationale is inadequate and it has already been established that the Veteran has a diagnosis of bilateral pes planus and arthritis of both feet. The Board reiterates that the examiner did not conduct any physical examination of the Veteran and based his opinion solely on the Veteran’s employment status. Therefore, given the medical nexus established by the initial November 2020 VA opinion along with the competent and credible lay evidence and military service records demonstrating the nature of the Veteran’s active duty service, the Board finds that the evidence is in relative equipoise with the claim as to whether the Veteran's bilateral foot disability is related to service.   In that regard, the law is clear. Pursuant to the "benefit-of-the-doubt" rule, "where there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter" the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. Thus, the Veteran’s claims for service connection for a right knee disability and bilateral foot disabilities are granted. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, 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.