Citation Nr: 21022524 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 15-47 005 DATE: April 16, 2021 ORDER Service connection for right knee arthritis is granted. Service connection for left knee arthritis is granted. REMANDED Entitlement to service connection for diabetes mellitus type II is remanded. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran’s right knee arthritis is etiologically related to service. 2. The evidence is in equipoise as to whether the Veteran’s left knee arthritis is etiologically related to service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for right knee arthritis have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107:38 C.F.R. §§ 3.102, 3.303. 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for left knee arthritis have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 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 August 1996 to May 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a October 2014 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This appeal was previously before the Board in June 2019. At that time, the appeal included service connection claims for sleep apnea and bilateral ankle disabilities. The Board remanded for additional evidentiary development, to include VA examinations and nexus opinions. Upon such evidentiary development, the RO granted service connection for obstructive sleep apnea, right ankle disability, and left ankle disability. See Rating Decision dated April 2020. As this decision represents a full grant of benefits sought, these issues are no longer in appellate posture. Regarding the issues of entitlement to service connection for a left and right knee disability, the Board finds that the RO substantially complied with the remand instructions, and appellate adjudication may proceed without prejudice to the Veteran. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be established for a disability resulting from an injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury incurred or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Moreover, in the case of arthritis, service connection is granted if arthritis is manifested in service or manifested to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Generally, service connection will be granted on a direct basis when there is competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between the in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A “veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Left Knee Disability Right Knee Disability The Veteran contends that his bilateral knee disabilities stem from his period of service. In regard to the first element required for service connection, a current disability, the record reflects that the Veteran currently receives treatment for arthritis of bilateral knees. As a result, the first element of service connection is satisfied. The Veteran’s service treatment records reflect that the Veteran did report periodic bilateral knee pain throughout his period of service. At one point, treating physicians prescribed pain medications and put the Veteran on profile as a result of his bilateral knee pain. See Service Treatment Records dated March 3, 2000 and May 5, 2000. Accordingly, the second element of service connection, an in service injury or event, is met. Regarding the nexus requirement, there are two opposing medical opinions of record. In an October 2019 private opinion, Dr. M.H.G., a board-certified orthopedic surgeon, opined that the Veteran’s bilateral knee arthritis was more likely than not a direct result of his period of service, to include the documented knee injuries. Contrarily, the December 2019 VA examiner opined that the Veterans bilateral knee arthritis was less likely than not incurred in or caused by service or service-connected disabilities. In so finding, the examiner opined that there was no evidence of a knee condition, to include knee arthritis, documented during service. The examiner also found that there was no medical evidence to link the Veteran’s knee disability to his service-connected flat feet. While the examiner provided nexus opinions, the examiner did not provide any rationale to support the conclusions. Furthermore, the Board notes that the examiner’s claim that there was no evidence of a knee condition during service directly contradicts the documented reports of chronic knee pain in the service treatment records. In light of the above, the Board finds that the evidence for and against the claim is at least in equipoise as to whether the Veteran’s bilateral knee arthritis is attributable to his service. When the evidence for and against a claim is in relative equipoise, by law, the Board resolves all reasonable doubt in the Veteran’s favor. The Board emphasizes that this standard of proof is “unique” to the VA adjudicatory process in light of the fact that the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55. Therefore, the benefit of the doubt is resolved in favor of the Veteran and entitlement to service connection for bilateral knee arthritis is granted. REASONS FOR REMAND Service Connection for Diabetes The Veteran is seeking service connection for diabetes. When he initially filed his claim, he asserted that his diabetes was secondary to his obstructive sleep apnea. However, in more recent correspondence, the Veteran suggested that his diabetes was caused by his obesity as a result of his inability to exercise due to his service-connected orthopedic disabilities. See Statement in Support of Claim dated November 24, 2019; Statement received September 30, 2020. This is a permissible theory of service connection under VA law. Pursuant to VAOPGCPREC 1-2017 (Jan. 6, 2017), obesity per se is not a disability subject to service connection. This notwithstanding, under VAOPGCPREC 1-2017, obesity may be an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). An August 2020 VA opinion indicated that it was less likely than not that the Veteran’s obstructive sleep apnea proximately caused his diabetes, reasoning that there was “no association” between diabetes and obstructive sleep apnea. In light of VA law directing that obesity may be considered an intermediate step between a service-connected disability and a current disability, the Board shall remand for an opinion that considers this theory. Specifically, the Board seeks to determine whether the Veteran’s obesity was caused by his service-connected disabilities and whether his obesity then caused his diabetes mellitus type II. The matters are REMANDED for the following action: 1. Associate with the claims folder updated VA treatment records. 2. Schedule the Veteran for an appropriate VA examination to determine whether diabetes mellitus type II is proximately due to service-connected disability. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected disabilities (obstructive sleep apnea, bilateral knee and ankle disabilities, bilateral flat feet, residuals of boxer fracture of the left 5th metacarpal and erectile dysfunction) caused him to become obese or gain weight; or aggravated his obesity. To the extent possible, the examiner should identify the extent of weight gain attributable to service-connected disabilities. If weight gain has occurred due to service-connected disability but the examiner cannot determine the extent of contribution, the examiner should attribute all weight gain to service-connected disability origin. If so, the examiner should provide an opinion as to whether the extent of obesity attributable to service-connected disability rose to a level to medically contribute to causing or making diabetes worse (e.g., the Veteran’s diabetes mellitus would not have occurred or worsened but for the weight gain caused or aggravated by his service-connected disability). The examiner should consider the following: a) The Veteran’s STRs and military personnel records; b) Medical treatment records documenting his treatment for diabetes mellitus type II; and c) The Veteran’s November 2019 and September 2020 lay statements and cited articles, suggesting obesity as an intermediate step between his service-connected disabilities and his diabetes mellitus type II. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Orie, 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.