Citation Nr: 21026869 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-10 745 DATE: May 4, 2021 ORDER Entitlement to service connection for right degenerative knee condition is granted. Entitlement to service connection for left degenerative knee condition is granted. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, her right degenerative knee condition is at least as likely as not caused by her service-connected foot condition. 2. Resolving all doubt in the Veteran's favor, her left degenerative knee condition is at least as likely as not caused by her service-connected foot condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to secondary service connection for right degenerative knee condition, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303, 3.310. 2. The criteria for entitlement to secondary service connection for a left degenerative knee condition, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty to include from September 1983 to July 1986, with additional service in the reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified at an August 2019 Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the Veteran's claims file. This case was previously before the Board in September 2020 when it was remanded for additional development to include a VA medical opinion addressing aggravation. The record shows VA scheduled and obtained a January 2021 VA knee and lower leg examination and medical opinion and a February 2021 addendum medical opinion. The Board notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The matter has returned to the Board for appellate review. The Veteran originally asserted entitlement to service connection for her right and left degenerative knee condition. See February 2013 VA 21-526b Supplemental Claim. The Veteran then asserted a secondary theory of service connection reporting that her feet are worse, and her knees are secondary to her feet. See December 2016 Decision Review Officer (DRO) Conference Report. Neither the Veteran nor her representative have subsequently claimed that her bilateral degenerative knee condition is directly related to service. Thus, the Board will address only whether the Veteran is entitled to service connection for her claimed bilateral knee disability on a secondary basis. See Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). In general, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or a disease incurred or aggravated in the line of duty during active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if preexisting such service, was aggravated therein. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. However, VA will not concede aggravation unless the baseline level of severity of the non-service-connected disease is established by medical evidence. 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b). The Veteran is competent to report on that of which she has actually observed and is within the realm of her personal knowledge. See Layno v. Brown, 6 Vet. App. 465 (1994). 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. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board acknowledges that the Veteran has a current diagnosis of right and left knee degenerative arthritis and right knee torn meniscus. See January 2021 VA knee and lower leg conditions examination. Therefore, the only questions for the Board is whether the current disability was caused by her active service or is proximately due to, or aggravated by, her service-connected left foot disability. The Veteran's service treatment records (STRs) are silent for knee issues. The Board notes that there are extensive post service treatment records addressing the Veteran's knee pain between June 2008 and March 2020. These records clearly establish that the Veteran suffers from right and left knee degenerative arthritis and knee pain throughout the appeal. The claims file also includes multiple treatment records noting a gait abnormality including a February 2014 rehabilitation record that noted right knee pain with a gait abnormality described as slightly increased base of support, diminished hip/knee flexion bending and slight forward lean, a March 2017 general medical record that noted left leg pain with an abnormal gait, an August 2017 physical therapy record that noted knee pain and an abnormal gait. In an April 2017 VA knee and lower leg conditions examination, the examiner confirmed a diagnosis of bilateral knee arthritis (right-2015/left-2016). The examiner noted a partial timeline of medical records documenting knee issues. The examiner also noted diagnostic testing to include imaging of both knees. In the attached medical opinion, the examiner opined that the Veteran's right and left knee condition (claimed as degenerative knee disorder) is less than likely as not proximately due to or the result of post-operative hammertoe left fifth toe with proximal phalangeal anatomy. As a rationale for the opinion, the examiner noted that the Veteran's mild bilateral knee arthritis is due to age and girth. After the Board's September 2020 remand, the Veteran was afforded a new VA knee and lower leg conditions examination in January 2021. Following an in-person examination and review of the records, the examiner confirmed a right knee meniscal tear and bilateral degenerative arthritis, all from 2018. The examiner noted the Veteran described her current symptoms as "weight in her legs" after walking approximately 12 block. The Veteran reported sharp pain that required her to sit down. The examiner also noted that the record does not show current treatment. The examiner provided a detailed history of the Veteran's bilateral knee pain. In the attached medical opinion, as to secondary service connection, the examiner opined the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected condition. In the rationale supporting the opinion, the examiner noted the Veteran's bilateral knee degenerative joint disease, is at least as likely as not caused, or aggravated by the service-connected left foot hammertoe condition. As to aggravation, the examiner noted an inability to determine a baseline level of severity for the bilateral degenerative knee condition based on the medical evidence available prior to aggravation or the earliest medical evidence following aggravation by the service-connected left foot condition. To support this opinion, the examiner noted the Veteran's claims file includes an examination report dated December 2008, in which knee pain is listed in the medical diagnosis history section dated October 2003. This date indicates that the Veteran was initially diagnosed with that diagnosis. This diagnosis preceded the above noted examination report by five years. A baseline would have needed to be established in 2003 which the record failed to present. Thus, the medical evidence is insufficient to support a determination of baseline level of severity. Regardless, the examiner opined that the Veteran's degenerative joint disease, left knee is at least as likely as not aggravated beyond its natural progression by the service-connected residuals, post-operative hammertoe left fifth toe with proximal phalangeal astronomy. After reviewing the rationale provided for this opinion, including the reported date of the Veteran's separation examination, the Board is not entirely convinced that the examiner was discussing results of this Veteran's examination and finds this medical opinion not helpful in review of the Veteran's appeal. The record notes that VA immediately identified concerns with the medical opinion and requested that it be reworked. In a February 2021 addendum medical opinion, the examiner noted the January 2021 medical opinion was not accurate and should be disregarded. The examiner then opined that it is less likely than not that the Veteran's current bilateral knee degenerative arthritis is proximately due to or the result of the Veteran's service-connected residuals s/p operative hammertoe left 5th toe with proximal phalangeal astronomy. As a rationale, the examiner noted the two conditions are not medically related. The examiner continued, noting there is no credible evidence to suggest that an injury or disease of the foot, unless that injury or disease resulted in major muscle or nerve damage causing partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than four or five centimeters so that the individual's gait pattern has been altered to the extent that clinically there is an obvious lurching type gait (a very significant limp). The Veteran's service-connected foot condition is not of the severity to result in a right or left knee condition. A nexus is not established. As to the theory of aggravation, the examiner noted that the two conditions are not medically related. There is no credible evidence to suggest that an injury or disease of one lower extremity would have any significant impact on another lower extremity joint, unless the injury to the foot resulted in major muscle or nerve damage causing partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than four or five centimeters so that the individual's gait pattern has been altered to the extent that clinically there is an obvious lurching type gait (a significant limp). There is no mechanism to support the suggested aggravation, beyond the natural progression, of the Veteran's bilateral knee condition. A nexus is not established. The Board notes that there are no additional medical opinions in the claims file. As noted above, the Veteran testified in her August 2019 Board hearing that pain from her toe spread through her foot, up her leg, and caused difficulty walking. The Board acknowledges that the Veteran is competent to relate symptoms within the realm of her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, she does not have the training or credentials to determine the etiology and the current nature and severity of those symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this instance, the statement regarding the altered gait in the February 2021 VA medical opinion combined with the post-service treatment records noted above tends to support the Veteran's testimony that her bilateral knee condition is indeed secondary to her service-connected foot condition. Based on a thorough review of the claims file, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's bilateral degenerative knee condition is related to service. The Board is mindful of the February 2021 VA medical opinion's negative etiology; however, this opinion only serves to place the medical evidence in a state of relative equipoise with the post service treatment records that noted and described the Veteran's abnormal gait. Resolving all doubt in the Veteran's favor, the Board finds that the record is in relative equipoise on all material elements of the claim for secondary service connection. The Board notes that the benefit of the doubt mandate is triggered when the evidence reaches a stage of equipoise. In this matter, the Board is of the opinion that this point has been attained. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Accordingly, service connection for a bilateral degenerative knee condition is warranted. The claims are accordingly granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.