Citation Nr: 21026878 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 11-16 795 DATE: May 4, 2021 ORDER Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee disability, is denied. FINDING OF FACT The preponderance of the evidence is against finding that right knee disability began during active service, or is otherwise related to an in-service injury or disease or secondary to a service connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1998 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board issued a remand in December 2020 instructing the RO to obtain an addendum opinion to determine if the Veteran's right knee disability had its onset in-service or if it was secondary to his service-connected left knee disability. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained a February 2021 addendum opinion that addressed direct and secondary service connection for the right knee. The Board finds the RO substantially complied with the December 2020 remand directives. Entitlement to service connection for right knee disability. The Veteran contends that he developed a right knee disability to his military service. Alternatively, he contends that he developed a right knee disability secondary to his service-connected left knee disability. On the June 2011 Form 9, the Veteran wrote that the pain he suffered from on a daily basis was directly related to the injury he suffered in service. His right knee had been overcompensating because of his left knee problem. 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, 5107; 38 C.F.R. § 3.303. 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). Secondary service connection requires: (1) a service connected disability; (2) a nonservice connected disability; and (3) evidence that the nonservice connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability. See 38 C.F.R. § 3.310. The Board notes that a March 2002 STR reflects that the Veteran complained of right knee pain, which started the prior week after a 12-mile march where caused the knee to give way. The assessment was retropatellar pain syndrome of the right knee. An October 2008 VA examiner found no pathology for the right knee based on examination and x-rays. However, a private July 2009 magnetic resonance imaging (MRI) of the right knee found a small amount of joint fluid present with no fracture or intra-articular loose body, evidence of a grade II injury or partial thickness tear involving the inferior aspect of the anterior cruciate ligament (ACL), and a small amount of degenerative sign in the posterior horn of the medial meniscus with no medial or lateral meniscal tear identified. Private treatment records also reflect treatment and diagnoses of a right knee ACL tear in August 2009. The April 2012 Disability Benefit Questionnaire reflects that x-rays revealed no arthritis or patellar subluxation of the right knee. The VA examiner noted July 2009 MRI evidence showing a partial tear of the ACL but stated that such evidence was reflected in the right knee. An August 2017 addendum opinion was obtained to further clarify the findings. The examiner opined that the Veteran ad a normal right knee. He was diagnosed with PFS in March 2002, but he was only seen once in service. Medical records do not indicate a chronic problem and the record indicates that he does not currently have PFS. The examiner mistakenly stated that the July 2009 MRI was of the left knee and not the right knee. In March 2018, the Board remanded the claim again noting that the July 2009 MRI show the Veteran was, in fact, scheduled for a right knee MRI. The Board again sought an addendum opinion further clarify the findings. In September 2018, the April 2012 examiner provided the same opinion as given in August 2017 without additional discussion of the July 2009 MRI or whether the Veteran currently had arthritis or other disability in his right knee. An opinion was sought from a different examiner. Another addendum opinion was obtained in September 2020. The examiner opined that the Veteran currently had a right knee strain. The Veteran reported that he began to feel right knee pain in 2000. He sought medical care and was provided medication. He stated that his right knee pain had worsened over the years. The examiner opined that the Veteran's right knee strain 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 explained that the in-service right knee strain was acute only and there was no evidence of chronicity of care. The symptoms were subjective only and a nexus had not been established. The examiner also opined that it was less likely than not (less than 50 percent probability) proximately due to the result of the Veteran's service-connected condition. The examiner explained that there was no clear evidence to suggest that an injury in one joint had any significant impact on another or opposite uninjured joint, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individuals gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. This level of severity was not supported based on record review, history, or exam. It is not unusual for two joints to share properties in the same person, but one joint's disease does not 'spread' to another or cause damage to it. Although compelling, the Board found that an additional opinion was necessary because the September 2002 VA examination did not address the findings of the July 2009 MRI and it was unclear whether the MRI results were considered. The examiner's discussion on any aggravation due to the service-connected left knee disability was also unclear. Therefore, a February 2021 medical opinion was obtained. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected condition. He wrote that there was no evidence of a chronic condition arising from the March 2002 in service diagnosis and no evidence of care proximate to service (within one year). After service, the first evidence of a right knee condition was in 2009. Orthopedic notes and MRI/XR's reflect a 3 to 4-year history, placing the onset no earlier than 2005/2006. The MRI/XR's also showed minimal degenerative joint disease (DJD) and a partial tear of the ACL, consistent with a grade 2 sprain. The posterior medial meniscus exhibited degenerative changes without evidence of a tear. Osteoarthritis was considered a natural aging process and the other changes are likely acute injuries and not chronic. It was more likely than not that the veteran suffered an acute injury requiring care in or around 2009, with associated early DJD. The Board acknowledges the Veteran's assertion that his right knee disability was related to his military service and/or a service-connected disability. However, a lay person is not considered competent to medically attribute his right knee to another disability as doing so to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the competent medical evidence of record answered the question and did not support a causal relationship between the Veteran's right knee disability and military service or his right knee and a service-connected disability. The evidence of record shows the Veteran had an acute in-service injury that did not require continued care. The evidence of record also indicates the Veteran did not develop a disability within one year after service and the first record of a current disability in 2009. In addition, the VA examinations of record consistently found that there was no relationship between the Veteran's in-service injury, service-connected disability and his current right knee disability. Accordingly, the criteria for entitlement to service connection for right knee disability have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for right knee disability, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.