Citation Nr: 21010760 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-40 257 DATE: February 25, 2021 ORDER Entitlement to service connection for a right knee disability is granted. REMANDED Entitlement to service connection for a left knee disability, to include as due to a right knee disability is remanded. FINDING OF FACT There is an approximate balance of positive and negative evidence as to whether the Veteran’s current right knee disability is related to his in-service injury. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to February 1971. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office. In March 2020, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In May 2020, the Board reopened the Veteran’s service connection claims for right and left knee disabilities and remanded the matters for further development. Now the matters are returned to the Board. The Veteran seeking entitlement to service connection for a right knee disability and contends that his right knee disability is due to an in-service right knee injury sustained during basic training. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303 (2019). The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” When 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 claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. 1. Right knee disability First, the evidence of record shows the Veteran’s current diagnosis of residuals of bilateral total knee replacement. Thus, the Board finds that the first Shedden element for service connection is met. As to the right knee injury in service, the Board notes that the Veteran’s service treatment record does not show any complaints, diagnosis or treatment related to a right knee condition. However, during the March 2020 hearing, the Veteran testified that he had injured his knee in basic training after jumping from a truck. He provided that he felt something snapped, had a bad swelling, and could not walk. In light of his competent testimony regarding an in-service right knee injury, the Board resolves reasonable doubt in the Veteran’s favor and finds that the second Shedden element for service connection is also met. As to the causal relationship between the Veteran’s current right knee disability and his in-service injury, the Board notes that there are two medical opinions of record. First, the Veteran’s private physician G.C. provided a positive opinion in January 2012. Dr. G.C. stated that he has been treating the Veteran for many years, and the Veteran had very significant osteoarthritis of the knee when he first met him. Dr. G.C. opined that it is very obvious that the Veteran had a long-standing right knee problem, which had come from a specific injury years before, during the time of his right knee surgery in 1974. Dr. G.C. discussed the 1974 discharge summary and opined that it is clear that the significant fraying and tearing of the meniscus at the time of operation indicate that the 1974 injury was not a new injury. Dr. G.C. noted that the Veteran was also found to have a complete tear of anterior cruciate ligament which was noted in the operative report as an old injury. Further, Dr. G.C. pointed out that the Veteran had osteochondritis dissecans, which is an injury to the joint cartilage and bone of the knee. Dr. G.C. provided that he believes the osteochondritis dissecans came from anterior cruciate ligament instability which caused damage to the bone, and it led to a free fragment which had to be removed at that time. Dr. G.C. stated that he did not have the notes regarding the Veteran’s in-service right knee injury for review, but the Veteran is very clear that his knee was abnormal since the injury and it certainly makes sense considering the findings in the operating room. Dr. G.C. concluded that he believes the Veteran had an ACL tear from the in-service injury which caused instability, and developed a meniscus tear and damage to the bone surface, i.e., osteochondritis dissecans. On the other hand, a VA examiner opined in December 2020 that the Veteran’s current right knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the meniscus is a piece of cartilage in the knee that acts as a shock absorber and can be torn during twisting motions of the knee, and the symptoms of a meniscus tear include significant knee pain, swelling, potential inability to ambulate, catching and locking of the knee joint. The examiner stated that someone with this type of injury would require medical treatment around the time of injury or at a later point due to flare-up of the condition and likely removal from service-related physical trainings. In that regard, the examiner pointed out that the Veteran was able to complete 4 years of service activities without knee issues and denied knee complaints on a medical examination conducted on June 19, 1968, which would have occurred after the claimed injury. The examiner noted that the Veteran’s right knee surgery was required 3 years after his separation for symptoms of a typical meniscus tear. Based on above, the Board finds that there is an approximate balance of positive and negative balance of as to whether the Veteran’s current right knee disability is related to his in-service injury. Thus, the Board resolves reasonable doubt in the Veteran’s favor and finds that his entitlement to service connection for a right knee disability is warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS FOR REMAND The Veteran is also seeking service connection for a left knee disability and contends that his left knee disability is secondary to his right knee disability. During the March 2020 hearing, the Veteran testified that his left knee disability came on gradually since 1974, and he was told that his left knee was compensating for the right knee. On December 2020 VA examination, the examiner provided a medical opinion on direct service connection for a left knee disability. However, as an opinion on whether the Veteran’s left knee disability is at least as likely as not proximately due to his now service-connected right knee disability, a remand is required to obtain an addendum opinion in order to make a fully informed decision. Accordingly, the matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) must obtain an addendum opinion from the December 2020 VA examiner regarding the Veteran’s service connection claim for a left knee disability. If the December 2020 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. If the examiner determines that a new examination is necessary, the AOJ should schedule one for the Veteran. The examiner should review the Veteran’s claims file and a copy of this REMAND order before rendering the requested addendum opinion. (a.) The examiner must opine whether the Veteran’s current left knee disability is at least as likely as not (50 percent or greater probability) caused by or proximately due to his service-connected right knee disability, or otherwise related to his service. (b.) The examiner specifically is asked to consider the Veteran’s March 2020 hearing testimony during which he provided that his left knee disability came on gradually since 1974, and he was told that his left knee was compensating for the right knee. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. (c.) If the examiner finds that the Veteran’s current left knee disability less likely as not caused by or proximately due to his service-connected right knee disability, the examiner must opine whether the Veteran’s current left knee disability is at least as likely as not (50 percent or greater probability) aggravated beyond its natural progression due to his service-connected right knee disability. (d.) The examiner must provide a complete written rationale for any opinion offered. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 2. After completing the above actions and any other necessary development, the issue on appeal must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.