Citation Nr: 21025263 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-23 345 DATE: April 27, 2021 ORDER Entitlement to service connection for left knee disability is granted. REMANDED Entitlement to service connection for right knee disability, to include as secondary to left knee disability, is remanded. FINDING OF FACT The Veteran’s left knee disability is related to service. CONCLUSION OF LAW The criteria for left knee disability have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 U.S.C. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from June 1966 to June 1968. These matters come before the Board of Veterans’ Appeals (Board) from a March 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified before a Veteran Law Judge (VLJ) and a transcript of the hearing is associated with the record. In October 2020, the Veteran was notified that the VLJ who presided over his hearing was no longer employed by the Board and was asked whether he desired a new hearing. The Veteran responded that he does not wish to appear at another Board hearing, therefore, the Board will proceed with adjudication. By way of background, this matter was before the Board in February 2020. In its decision, the Board remanded these issues for further development. The Board identified relevant outstanding private treatment records. However, the VA determined that these records cannot be located and further attempts to obtain such records would be futile. Additionally, the Board also deemed inadequate the February 2018 VA examination as it lacked a clear nexus opinion with regard to the left knee and failed to discuss whether the right knee disability was related to a December 1996 right knee injury or proximately due to or aggravated beyond its natural progression by the left knee. This matter came before the Board again in December 2020. In its decision, the Board remanded these issues for further development. Specifically, the Board found the April 2020 VA examiner’s opinion inadequate for failing to discuss the Veteran’s reports of chronic knee problems and his reported treatment throughout the years. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of service connection for right knee disability, to include as secondary to the Veteran’s left knee disability. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, the Board notes the appeal has been on the docket pursuant to 38 C.F.R. § 20.902. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).   A disease first diagnosed after service may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases (to include arthritis) may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within a specified period of time post-service (one year for the aforementioned disabilities). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. When certain chronic diseases are at issue, such as arthritis, or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptomatology. 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. 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. With chronic disease shown in service or within the presumptive period, 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). 1. Entitlement to service connection for left knee disability. The Veteran contends that his left knee disability is attributable to an in-service injury. Specifically, the Veteran states that he twisted his left knee running prisoners through a bayonet assault course. He states that his left foot was stuck in a truck hole and he turned around while his knee was facing the other direction. Subsequently, the Veteran states that he fell to the ground then proceeded to the dispensary, then Irwin Army Hospital; however he was unable to get x-rays at the hospital. The following day or two, the Veteran reported to sick call and upon having his knee examined and wrapped, he was advised to go to the hospital to get x-rays. However, the Veteran was unable to obtain x-rays. After service, the Veteran states that he continued to seek treatment for his left knee on and off. He states that he eventually went to see an orthopedist who performed an MRI and x-ray and concluded that his left knee was badly damaged. The Veteran states that the lower portion of his leg started to “deform” and “bend.” That same orthopedist advised the Veteran to get his knee replaced. The Veteran states that he had concerns about the prosthesis because, if it failed, the doctors could not perform another replacement and the result would be permanent wheelchair usage. Due to this risk, the doctor advised the Veteran to “live with it the best you could” and wait on “improvements in the mechanical device” that was to replace his knee. Subsequently, the Veteran was informed by Robert Wood Johnson in the 1990s that he was not a candidate for the “quad sparing surgery” and would have to undergo a total knee replacement. See November 2019 Hearing Transcript. A Service Treatment Record (STR) dated April 1968 documents previous limitation of activity with twisting of the left knee in an incident dated 1966. In an April 1968 Report of Medical Examination, “has had previous limitation of activity in left knee, was evaluated for ligament tear” was noted. An accompanying April 1968 Consultation Sheet indicates the Veteran’s left knee was normal with no locking, full range of motion, and the Veteran was clear for separation. Additionally, in an April 1968 Report of Medical History the Veteran reported no to “trick” or locked knee. Post-service VA Treatment Records document a physical medicine rehabilitation note dated December 2013 which documents the Veteran’s complaints of bilateral knee pain. In a September 2015 Preventative Medicine Outpatient Note, the Veteran reported chronic knee pain, rating it a 7 out of 10. In a September 2017 Primary Care Outpatient Evaluation Note, the Veteran complained of increased bilateral knee pain and that he was unable to get up from the floor. A November 2017 Orthopedic Consult reveal radiology results of severe tricompartmental degenerative joint disease bilaterally. In a February 2018 VA examination, the Veteran was diagnosed with knee joint osteoarthritis in both knees. Pursuant to the Board’s December 2020 remand, a VA Addendum Opinion was obtained for the Veteran’s left knee condition in February 2021. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale stated: There is no evidence of a right or left knee condition in service. There is no evidence of a condition of the right or left knee predating service. The references to a knee condition while in service are related to the left knee, which itself was acute and self-limited, and not present at separation. The separation exam dated 4/19/68 was negative bilaterally. This includes a veteran-answered questionnaire and physical exam. The Veteran answered negative for “trick knee,” bilaterally. The physical exam itself was negative. These exams are notably thorough, and it is highly unlikely that a significant knee condition would have gone unreported or unnoted. Furthermore, the medical officer would have had the veteran’s STR available further making it unlikely a prior knee condition would have been missed…Though the veteran reports onset of symptoms in the 1990s, there is no documentation until 2013 [and] 2014. The veteran was diagnosed with bilateral DJD on imaging 11/20/17 and this is diagnoses on the DBQ in 2018…Despite the veteran’s claims of bilateral injury in service with chronicity of symptoms since service, the medical evidence does not support the claim. As noted, it is unlikely a condition would have been missed or unreported at separation. Any new onset of pain occurring in the 1990s, more likely than not would have represented a new and separate condition. The Board finds that the rationale provided by the VA examiner is inadequate, thereby giving it little probative weight. First, the examiner explained that the Veteran reported no knee condition at separation and knees were found to be normal at separation. However, the Board notes that it is plausible that the Veteran reported “no” for “trick” or lock knee at separation because his knee did not lock even though his knee proved painful. Crucially, the VA examiner did not address the Veteran’s lay statements regarding continuity of symptomatology since service of his knee conditions. In his hearing testimony the Veteran states that he got “off and on” treatment for his knee post service, leading up to the 1990s Robert Wood Johnson visit that discussed the “quad sparing” knee replacement surgery. The December 2020 remand explicitly directed the examiner to address the Veteran’s reports of chronic knee symptoms and his report of on and off treatment since service, including treatment in the 1990s. See Stegall, 11 Vet. App. at 271 (holding that a remand confers on the Veteran, as a matter of law, the right to compliance with the remand orders). Indeed, the rationale offered in support of the examiner’s negative nexus opinion was based largely on a lack of chronicity of care of these conditions immediately after service and suggested that there was no evidence of care until 2013. However, the Veteran stated that he received treatment for his knee condition following separation from service but prior to 2013. An opinion based on the absence of treatment records without consideration of a veteran’s competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service); see also, Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006) (holding that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). A layperson is competent to report on the onset and continuity of his or her 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Board emphasizes that the lack of medical documents immediately following service is not fatal to the claims, and that the examiner should have addressed the Veteran’s lay evidence of continuity of symptomatology since service, as explicitly directed in the December 2020 Remand instructions. However, the Board has considered the application of the concept of continuity of symptomatology in reviewing this claim, as arthritis is a “chronic disease.” See 38 C.F.R. §§ 3.303(a). In this case, the Board finds the Veteran’s testimony as to the onset of his left knee disability credible. The Veteran is competent to report symptoms of pain associated with his left knee disability. Additionally, he has credibly reported that his left knee symptoms began in-service and have continued to the present time. The Veteran has not attempted to bolster or exaggerate his symptoms. The Board finds the Veteran’s competent statements concerning the continuity of symptomatology of his knee condition to be credible and ultimately probative. Therefore, the criteria for service connection for a left knee disability have been met. REASONS FOR REMAND 1. Entitlement to service connection for right knee is remanded. In February 2020, a VA examiner provided etiological opinions concerning the Veteran’s claimed right knee disability. The examiner stated that because the Veteran is not service-connected for the left knee condition, it could not be considered a service-connected condition aggravating a non-service-connected condition. Further, the examiner stated that there was no evidence of a chronic right or left knee condition arising in service. The examiner states that there is no evidence of care proximate to service and the Veteran did not report the onset of his pain until the 1990s, which led him to the conclusion that it is less likely than not that either knee condition had its origins in service or is due to events in service. Further, the examiner opined that it is less likely than not that either knee condition had its origins in service or is due to events in service. For secondary service connection, the examiner opined that it is less likely than not that either knee has been aggravated beyond its natural course due to any cause or by the opposite knee. The examiner states, “if the decision is made to concede the left knee condition, it would not cause the right knee condition, nor would it aggravate it. This too is established medical knowledge and practice. DJD of one knee does not cause DJD of the opposite knee and it does not transfer from one knee to the other.” Unfortunately, the Board again finds that the rationale provided by the February 2021 VA examiner is inadequate. Given the Board’s findings of the Veteran’s left knee disability as provided above, the Board finds that an opinion for service-connection for a non-service-connected disability is warranted. Additionally, the Board deems that the February 2021 addendum opinion does not reflect any consideration of the Veteran’s own history of the symptoms of his knee disability. The December 2020 remand explicitly directed the examiner to address the Veteran’s reports of chronic knee symptoms and his report of on and off treatment since service, including treatment in the 1990s. See Stegall, 11 Vet. App. at 271. The rationale offered in support of the examiner’s negative nexus opinions were based largely on a lack of chronicity of care of these conditions immediately after service and suggested that there was no evidence of care until 2013. However, the Veteran stated that he received treatment for his knees following separation from service, including a consult about knee replacement surgery in the 1990s. An opinion based on the absence of treatment records without consideration of a veteran’s competent reports is inadequate. See Buchanan, 451 F. 3d at 1336-37. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno, 6 Vet. App. at 470. Here, the Board emphasizes that the lack of medical documents immediately following service is not fatal to the claims, and that the examiner should have addressed the Veteran’s lay evidence of continuity of symptomatology since service, as explicitly directed in the December 2020 Remand instructions. Furthermore, the Board finds the examiner’s opinion as to secondary service-connection inadequate for the failure to adequately address aggravation. The examiner cites unspecified “medical knowledge” to support that DJD of the opposite knee does not cause DJD of the other knee. It is unclear what type of medical treatise the examiner may be referring. In addition, this provides rationale for causation but does not sufficiently address the aggravation prong of secondary service connection. Aggravation is any increase in severity beyond the natural progress of the disease. The Board notes that it is plausible that a disability in the Veteran’s left knee could aggravate the Veteran’s right knee beyond its natural progression. This includes the impact of gait and pain on the Veteran’s right knee, for which the examiner’s rationale is silent on. Accordingly, a remand is required to obtain an adequate medical opinion to address these deficiencies. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Obtain an addendum opinion regarding the Veteran’s right knee disability. Ask an appropriate examiner to review the Veteran’s file including the entirety of this remand. The examiner must opine as to the following: a. Whether it is at least likely as not that any current right knee disability including symptoms of pain was caused or aggravated by service. In doing so, the examiner must specifically consider and address the notations in the service treatment records, the Veteran’s reports of chronic knee symptoms that begin and have continued since service, including his report of on and off treatment after service up to his consult in the 1990s for knee surgery, as well as any subsequent report of symptoms. b. Whether it is at least as likely as not (a 50 percent or greater probability) that the current right knee disability is caused by the Veteran’s service-connected left knee disability, to include any gait changes and symptoms of pain. c. Whether it is at least as likely as not (a 50 percent or greater probability) that the current right knee disability is aggravated (worsened) by the Veteran’s service-connected left knee disability, to include any gait changes and symptoms of pain. The examiner is reminded that aggravation is any worsening in severity beyond a natural progression. (Continued on the next page)   The examiner should set forth all findings, along with complete rationale for the conclusions reached. Discussion of medical rationale should include specific information as to the medical knowledge used to render the opinion as well as how the Veteran’s particular circumstances relate to that medical knowledge. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Law Clerk for the Board N. Jamordee 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.