Citation Nr: 21012520 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-30 498 DATE: March 4, 2021 ORDER Entitlement to service connection for a bilateral knee disability is granted. REMANDED Entitlement to service connection for a bilateral hip disability is remanded. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s current bilateral knee disability had its onset during his military service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria to establish service connection for a bilateral knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from January 1981 to September 1992. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. By way of procedural background, this matter was previously before the Board in February 2019, at which time the Board remanded the issues of entitlement to service connection for a bilateral knee disability, a bilateral hip disability, and an acquired psychiatric disability for additional development. In a July 2020 rating decision, the RO granted service connection for an acquired psychiatric disability as proximately due to the Veteran’s service-connected lumbar spine disability. As this is considered a full grant of the benefits on appeal for that claim, the issue of service connection for an acquired psychiatric disability is no longer before the Board for appellate consideration. AB v. Brown, 6 Vet. App. 35 (1993). As an aside, the Board notes that in the November 2020 Supplemental Statement of the Case (SSOC), the RO appears to have only adjudicated entitlement to service connection for a left knee disability, rather than a bilateral knee disability. However, given the RO’s discussion of both knees in the “Reasons and Bases” section of the SSOC, and the fact that this matter is distinguishable from Manlincon in that the Veteran’s December 2012 Notice of Disagreement was acknowledged and the July 2015 Statement of the Case (SOC) adjudicated entitlement to a bilateral knee disability, the Board declines to remand this matter for issuance of an SSOC that separately addresses entitlement to service connection for the right knee. See Manlincon v. West, 12 Vet. App. 238 (1999). Additionally, as the Board is granting in full the benefit sought herein, there is no prejudice to the Veteran in proceeding with this adjudication. The Board observes that an addendum VA medical opinion was received after the RO’s adjudication in the November 2020 SSOC, without a waiver of initial RO consideration. See November 2020 addendum VA medical opinion; see also Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). However, review of this evidence reveals that it is not relevant to the claims on appeal – the November 2020 addendum VA medical opinion pertains to the Veteran’s claim for service connection for abdominal and flank pain. As such, a waiver of initial RO consideration is not required. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for a bilateral knee disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Relevant here, the Veteran’s diagnosed arthritis is considered by VA to be a “chronic disease” as listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana, 24 Vet. App. at 443 n. 4; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the Veteran asserts that he currently has a bilateral knee disability that is related to, or caused by, his active service. In the alternative, the Veteran asserts that his bilateral knee disability is secondary to his service-connected lumbar spine disability. As an initial matter, the Board finds that the Veteran has current diagnoses of bilateral knee joint osteoarthritis, right knee strain, left knee meniscal tear, chondromalacia of the left knee, and bilateral patellofemoral pain syndrome. See July 2012, December 2019, and September 2020 VA knee examination reports. Therefore, a current bilateral knee disability, to include arthritis, is established. Next, the Board finds that the Veteran had in-service injuries to both knees. Various service treatment records (STRs) document injuries, complaints, and diagnoses pertaining to both knees, to include knee strain, bursitis, a subluxing patella, and patellofemoral pain syndrome. See STRs dated November 1983, July 1985, August 1985, September 1985, December 1987, January 1988, and March 1988. Accordingly, an in-service event is established. Thus, the remaining question before the Board is whether there is competent evidence of a nexus between the Veteran’s in-service knee injuries and his current bilateral knee disability. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current bilateral knee disability had its onset during active service. First, the Board finds highly probative the Veteran’s competent reports that his bilateral knee symptoms, to include pain and giving way, onset during active service and have continued ever since. See July 2014 VA physical medicine rehabilitation consultation; June 2018 Board hearing transcript; December 2019 letter from Dr. M.C.; December 2019 and September 2020 VA knee examination reports. Notably, in a July 2014 VA physical medicine rehabilitation consultation record, the Veteran was noted to be wearing bilateral knee braces and reported experiencing “catching” and giving way in both knees since around 1988. Additionally, in a December 2019 letter, the Veteran’s private chiropractor, Dr. M.C., wrote that the Veteran reported his knees giving way during service and that “[w]hen he left the Army in 1992, he continued chiropractic treatment to assist his pain, but he has never been able to stop his knees / legs from unexpect[ed]ly giving way…” Statements, such as these, made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the Veteran has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). The Board also finds it significant that VA treatment providers and examiners have characterized the Veteran’s knee symptoms as “chronic.” See May 2015 VA primary care note; March 2020 VA pain note; June 2020 VA orthopedic surgery consultation; December 2019 and September 2020 VA knee examination reports. The Board acknowledges that during the July 2012 VA knee examination, the Veteran indicated that he started having left knee problems in August 2011 and that he did not recall any previous problems in either knee. Nevertheless, the Board emphasizes that the evidence need only be in relative equipoise for the Veteran to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Second, the Board finds the January 2020 and June 2020 VA medical opinions inadequate and affords them little to no probative value. In the January 2020 VA medical opinion, the VA examiner provided a negative nexus opinion and reasoned, in part, “[i]n reviewing the available service treatment medical records, no evaluation and/or treatment for a left and/or right knee condition, or injury during service was identified.” As discussed previously, the record contains multiple STRs documenting the Veteran’s knee injuries, complaints, and diagnoses. As such, the January 2020 VA medical opinion is based on an inaccurate factual premise and, to that extent, is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Furthermore, as rationale for the June 2020 VA medical opinion, the VA examiner wrote, “there does not appear to be a nexus or clear correlation between the Veteran’s present left and/or right knee condition, with active military service, or the Veteran’s right knee condition evaluated and treated in service in 1985.” (emphasis added). Medical opinions expressed in such speculative language (“does not appear”) are inadequate, and “clear correlation” is not the correct evidentiary standard. In addition, the rationale provided for the June 2020 VA medical opinion is incomplete in light of Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), which holds that a Veteran’s lay statements of symptomatology need not be corroborated by contemporaneous medical records to constitute competent evidence. As an aside, the Board notes that the July 2012 VA medical opinion was found inadequate in the Board’s February 2019 decision. Third, the Board finds the October 2020 VA medical opinion adequate and affords it great probative value. The VA examiner was asked to “state whether the Veteran’s medical records support that any currently diagnosed condition(s) related to the Veteran’s claimed bilateral knee disorder, is/are at least as likely as not (50 percent or greater probability) incurred in or caused by the service treatment records noting right knee and hip in service treatment.” In the October 2020 VA medical opinion, the VA examiner opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness, reasoning, “He had an injury Summer 1995 to the right knee to the MCL. There are several note[s] from July and August. The veteran stated this was self-limiting but describes no other injuries to the knee since then.” The Board recognizes that the VA examiner appears to have made a typographical error when referring to the relevant STRs (noting a right knee injury in the summer of 1995, rather than 1985), and that the rationale only refers to the right knee. Even so, the Board finds the October 2020 VA medical opinion probative as it was authored by a medical doctor who reviewed the Veteran’s claims file and considered the Veteran’s lay reports of knee symptoms and injuries. Fourth, the Board acknowledges that there is no adequate etiology opinion of record specifically addressing the Veteran’s left knee disability. While a lay person is not always competent to relate past symptoms to a current diagnosis, in this case it is within the competence of a lay Veteran, and the lay adjudicator, to reach that conclusion based upon the overall factual picture such as the length of time and observable nature of knee pain and giving way. See Kahana, 24 Vet. App. at 438. Accordingly, after resolution of all reasonable doubt in the Veteran’s favor, the Board finds that service connection for a bilateral knee disability is warranted. The appeal is therefore granted. Having granted service connection on a direct basis, the Board need not address the Veteran’s alternative theory of entitlement. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hip disability is remanded. The Veteran also asserts he is entitled to service connection for a bilateral hip disability, to include as secondary to his service-connected lumbar spine disability. The Board finds that additional development is necessary prior to appellate consideration of this claim. In December 2019, the Veteran was provided a VA examination to determine the nature and likely etiology of his claimed bilateral hip disability. The VA examiner diagnosed osteoarthritis of both hips. After an in-person examination of the Veteran and review of his claims file, the VA examiner provided medical opinions addressing direct and secondary service connection. See January 2020 VA medical opinions. As to direct service connection, the VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, reasoning, in part, “[f]urther diagnostic studies in 2015…did note osteoarthritis of the left and right hips, approximately 23 years post military discharge from service.” However, in an August 1998 private computed tomography (CT) scan report of the pelvis and hips, the interpreting radiologist wrote, “the hip joint spaces bilaterally appear slightly thinned. The lateral margins of the acetabulum are a bit pointed and sclerotic and the anterior margin of the acetabulum are slightly irregular as well but not on the articulating surface. Similar changes are noted at both margins of the symphysis pubis. These findings are certainly not acute and may indicate some type of indolent underlying arthritic condition. The changes could be due to degenerative arthritis.” On remand, the VA examiner should address the August 1998 private CT scan report when providing an etiology opinion as to the Veteran’s bilateral hip disability. Additionally, while both causation and aggravation were addressed in the rationale provided for the January 2020 VA medical opinion as to secondary service connection, the VA examiner only provided one opinion – that the claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition. On remand, the VA examiner should clearly, and separately, address both avenues for secondary service connection. Lastly, in its February 2019 Remand directives, the Board instructed that the VA examiner “should specifically address whether the Veteran’s hip symptoms are separate and distinct from the already service-connected [bilateral lower extremity] radiculopathy disability.” This was not addressed in the December 2019 VA hip examination report, nor in the January 2020 VA medical opinion. As such, remand is required to ensure compliance with the Board’s prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran’s bilateral hip disability, preferably from the VA examiner who completed the December 2019 VA hip examination report, if possible. If this is not possible, the opinion should be rendered by another appropriate examiner. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a review of the entire claims file, the examiner is asked to respond to the following: (a) Address whether the Veteran’s hip symptoms are separate and distinct from the already service-connected bilateral lower extremity radiculopathy. (b) Provide an opinion as to whether the Veteran’s bilateral hip disability at least as likely as not (50 percent probability or greater) had its onset during service or within one year after separation from service, or is otherwise related to service. * Specifically, address an August 1998 private CT scan report of the pelvis where the interpreting radiologist wrote, “the hip joint spaces bilaterally appear slightly thinned. The lateral margins of the acetabulum are a bit pointed and sclerotic and the anterior margin of the acetabulum are slightly irregular as well but not on the articulating surface. Similar changes are noted at both margins of the symphysis pubis. These findings are certainly not acute and may indicate some type of indolent underlying arthritic condition. The changes could be due to degenerative arthritis.” (c) Provide an opinion as to whether the Veteran’s bilateral hip disability is at least as likely as not (50 percent probability or greater) proximately due to OR aggravated by his service-connected lumbar spine disability. * Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non-service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). A complete rationale should be provided for each opinion. 2. Thereafter, readjudicate the remanded claim. In so doing, ensure that all applicable theories of entitlement are addressed. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.