Citation Nr: 21027164 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-07 247 DATE: May 4, 2021 ORDER Entitlement to service connection for a right knee disorder, to include as secondary to service-connected right foot disability, is denied. REMANDED Entitlement to service connection for muscle spasms is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's right knee disorder is related to any aspect of his military service; or that it is secondary to his service-connected right foot disability. CONCLUSION OF LAW The criteria for service connection for a right knee disorder, to include as secondary to service-connected right foot disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1974 to January 1983. He testified at a hearing before the Board in August 2018. A transcript of the hearing has been associated with the claims file. Service Connection The Veteran claims entitlement to service connection for a right knee disorder on a direct basis, as well as secondary to his service-connected right foot disability. With regard to direct service connection, the Veteran attributes his current right knee disorder to an in-service motor vehicle accident during his first period of service from February 1974 to May 1978. See August 2018 Hearing Transcript, p. 13. Service connection may be granted for 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). Alternatively, service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). The Board concludes that, while the Veteran has a current diagnosis of right knee degenerative arthritis, the preponderance of the evidence weighs against a finding that his right knee degenerative arthritis had its onset during, or is otherwise related to, his active duty military service; or that his right knee degenerative arthritis is caused or aggravated by his service-connected right foot disability. Review of the Veteran's service treatment records are silent for any complaints of or treatment for a right knee disorder. However, as noted in the Board's March 2019 remand, service treatment records from his first period of service are unavailable aside from his August 1974 entrance examination. See March 2015 Memorandum of Unavailability of Service Treatment Records. When service records are unavailable through no fault of the veteran, VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Currently, the Veteran is service-connected for right foot osteochondritis dissecans. In connection with the Board's March 2019 remand, the Veteran underwent a VA examination in May 2019, and he was diagnosed with right knee degenerative arthritis. The examiner noted the Veteran's report that he injured his right knee while running during basic training, as well as his current diagnosis and symptoms. Ultimately, the examiner opined that the Veteran's right knee disorder was less likely than not related to his military service, to include his in-service motor vehicle accident during service because a review of his service treatment records did not document an injury to or treatment for a right knee problem, and there was no documentation of the reported in-service motor vehicle accident. Wight regard to secondary service connection, the examiner opined that the Veteran's right knee disorder was less likely than not caused or aggravated by his service-connected right foot osteochondritis dissecans. The examiner reasoned that recent X-rays revealed mild osteoarthritis in the right knee with a large hypertrophic exostoses along the anterior tubercle as the insertion of the patellar tendon. The examiner went on to say that these findings would not be associated with right foot problems. After noting the Veteran's in-service treatment for a puncture wound to the fourth toe of the right foot and clinical visits for foot pain, the examiner continued that current X-rays revealed only mild hallux valgus and mild degenerative joint disease in the right foot, and that these foot findings would not aggravate a right knee disorder. The Veteran underwent another VA examination in December 2020. The examiner again noted his reported in-service injury during service, as well as his reported 1974 motor vehicle accident. Ultimately, the examiner opined that the Veteran's right knee disorder was less likely than not related to his military service. The examiner noted that the Veteran's medical records were silent for any right knee injury during service, and that there was no chronicity of care between the Veteran's military service and the date he was diagnosed with right knee degenerative joint disease. In February 2021, another medical opinion was obtained. After noting that the Veteran's service treatment records were unavailable, the examiner also noted his report of an in-service motor vehicle accident in 1974; however, the examiner concluded that his current right knee disorder was less likely than not related to his military service. The opinion provider noted that there was no credible medical evidence to support a causal link between an acute injury and the development of degenerative arthritis decades later. Instead, citing to medical treatise evidence, the opinion provider noted that degenerative arthritis was the result of wear and tear over time, and that it was a product of the natural aging process. The Board finds that the May 2019 opinion (as it relates to whether the Veteran's right knee disorder is secondary to his service-connected right foot disability), and the February 2021 medical opinion (as it relates to whether the Veteran's right knee disorder is related to his military service, to include his reported 1974 motor vehicle accident), are the most probative opinions of record in this appeal because they are supported by cogent and persuasive medical rationale. Indeed, the February 2021 opinion provider did not simply base the negative nexus opinion on an absence of documented treatment records alone, but discussed the specific medical characteristics of the Veteran's current disability (degenerative joint disease) and why, medically, such would not be caused by in-service trauma. The May 2019 opinion addressed the potential relationship between the Veteran's right knee disability and his right foot disability, opining against such a relationship (on both a causal and aggravation basis) based on analysis of the severity of the Veteran's foot condition as shown on x-rays. The Veteran has not supplemented the record with any medical opinion evidence that is supportive of his claim, or contrary to the medical opinions already obtained. Although lay persons are competent to report symptoms or other matters within their personal knowledge, and to provide opinions on some medical matters (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the specific matter of whether the Veteran's right knee disorder is related to his military service or secondary to his service-connected right foot disability is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Specifically, the question involves medical subjects concerning internal physical processes extending beyond an immediately observable cause-and-effect relationship. The Veteran has not demonstrated that he has the necessary training and expertise to provide competent opinions on the subjects at issue. Absent competent and credible evidence demonstrating that the Veteran's right knee disorder was caused by his military service, to include his reported 1974 motor vehicle accident; and/or that his right knee disorder is secondary to his service-connected right foot disability, the preponderance of the evidence is against his claim. As such, reasonable doubt does not arise, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for muscle spasms is remanded. The Veteran claims entitlement to service connection for muscle spasms as a result of his military service. Specifically, the Veteran claims that he began to experience muscle spasms after receiving injections during service, that they started in his shoulder blades, and that his spasms have spread throughout his body ever since. See August 2018 Hearing Transcript, pp. 11-12. In September 2020, the Board remanded the Veteran's claim to the agency of original jurisdiction (AOJ) so that the Veteran could be afforded a new VA examination to address the issues raised. The Board found that an examination was necessary because a May 2019 VA medical opinion does not address whether the Veteran experienced a broader spasm-related disability that was related to his military service, because the opinion failed to reflect consideration of the Veteran's lay statements concerning the onset and continuity of his spasm-related symptoms, and because the examiner based her opinion exclusively on the lack of any documented in-service treatment for foot spasms. The Veteran underwent another examination in December 2020, and the examiner noted the July 1982 service treatment record showing treatment for a paravertebral muscle spasm at C-7. Ultimately, the examiner concluded that the Veteran's current spasms were not related to his military service as his in-service spasm was acute in nature, and there was no evidence of chronicity of care for spasms. The examiner also noted that the Veteran was not currently being treated for muscle spasms of the neck. The December 2020 examiner's opinion is insufficient to adjudicate the Veteran's claim because, like the May 2019 VA opinion, it fails to reflect consideration of the Veteran's lay statements concerning the onset and continuity of his spasm-related symptoms, and because the conclusion reached is exclusively based on a lack of any documented in-service treatment for chronic spasms. When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given that the medical evidence of record fails to adequately address the issues raised, a new examination is necessary. 2. Entitlement to a TDIU is remanded. As noted in the Board's March 2019 remand, given the Veteran's contentions, see October 2014 VA Form 21-8940, his claim for a TDIU is inextricably intertwined with his other claim remaining on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, the Board will defer consideration of that issue at this time. On remand, the AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Records dated through September 3, 2019, are currently of record. The matters are REMANDED for the following action: 1. Associate with the claims file any VA treatment records dated from September 3, 2019, to the present. 2. The Veteran should be afforded an examination to determine whether any muscle spasm disorder had its onset during or is otherwise related to his military service. The record must be made available to, and reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted, and the examiner should take a history from the Veteran as to the onset and progression of his claimed disability. Following a review of the entire record, the examiner should address the following question: Is it at least as likely as not (i.e., a 50 percent or greater probability) that any currently-diagnosed muscle spasm disorder had its onset during, or is otherwise related to, his active duty service, including his July 1982 treatment for muscle spasms? In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service and continuity of symptomatology. In this regard, the Veteran claims that he began to experience muscle spasms after receiving injections during service, that they started in his shoulder blades, and that his spasms have spread throughout his body ever since. See August 2018 Hearing Transcript, pp. 11-12. Furthermore, a July 1982 service treatment record noted mild spasms in the left trapezius, and another July 1982 service treatment record noted the presence of paravertebral muscle spasms. A clearly-stated rationale for any opinion offered should be provided, and must not be based solely on the absence of chronic treatment for a spasm disorder in service. 3. Thereafter, and after any further development deemed necessary, the issues remaining on appeal, including entitlement to a TDIU, should be readjudicated. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.