Citation Nr: 21027786 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-56 440 DATE: May 6, 2021 ORDER Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a left ankle disability is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The evidence is in equipoise that the Veteran's currently diagnosed right knee condition was first manifested on active duty service. 2. There is not credible evidence of record which shows that the Veteran had a left ankle injury that occurred during active duty or was otherwise shown to be related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee condition have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left ankle condition have not been met. 38 U.S.C. §§ 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 February 1977 to January 1981. He has additional Reserve service through November 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a February 2021 virtual hearing before the undersigned; a transcript of the hearing is associated with the claims file. Although the RO classified the above issues as claims to reopen in the November 2016 rating decision, the Board finds that these service connection claims are original claims, notwithstanding a prior rating decision which the Veteran did not directly appeal. Specifically, an August 2016 rating decision originally denied the claims. In October 2016, less than a year after the decision was issued, a VA knee and lower leg conditions examination was completed, diagnosing degenerative arthritis in both the left and right knees. Such evidence is new because it was not considered in the August 2016 rating decision. It is material because it established the existence of a left and right knee disability, which had been part of the basis of denying service connection for the left and right knee conditions. The October 2016 VA examination was received within a year of the August 2016 rating decision. Thus, it prevented the decision from becoming final. See Young v. Shinseki, 22 Vet. App. 461, 466 (2009); 38 C.F.R. § 3.156(b). Accordingly, the Board finds that the current claim is best viewed as an original claim, rather than a claim to reopen. VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The duty to notify and assist was satisfied by notices included in the Fully Developed Claim (VA Form 21-526EZ) acknowledged by the Veteran in his April 2016 claim. The RO associated the Veteran's service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. During the February 2021 Board hearing, the Veteran mentioned that there were some potentially outstanding private treatment records. However, he clarified that these records were unavailable due to the death of his doctors. No other relevant records have been identified and are outstanding. When the low threshold of McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) has not been met, the VA has no duty to provide VA examination or obtain a medical opinion. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis is listed as a chronic condition. However, as there is no evidence that arthritis manifested within one year of the Veteran's separation from service, service connection cannot be established on a presumptive basis under 38 U.S.C. § 1112; 38 C.F.R. § 3.307. Left Ankle The Veteran contends that service connection for a left ankle disability is warranted based on an alleged in-service injury. During the February 2021 Board hearing, the Veteran reported that while in-service, he stepped down from a "Deuce and a Half" truck in such a way that caused his ankle to swell. He indicated that he later received treatment at a VA facility and was told that he had an old break. At a later point in the hearing, he further described the in-service incident, recalling that after jumping out of the truck, he fell to the ground and his ankle swelled. He said that he wrapped it up, but because it continued to swell and cause him problems, he went to a VA facility for treatment. He recalled that at this time, an x-ray was taken, and he was told that his ankle was broken. An operation was then performed. He reported that he had gone to medical for his ankle a week or more after it was injured and indicated that he was completing training at the time. Neither this incident, nor any other related injury to the ankle or ankle treatment, are not mentioned in the Veteran's service treatment records (STRs). Rather, the Veteran's post-service medical records reflect that his left ankle injury occurred in April 1987, well after his separation from service. These records indicate that the he was received at the emergency department of a local hospital following his left ankle injury. Upon entrance to the facility, it was recorded that he had stepped out of his Jeep into a hole, his left foot had twisted, and the Veteran heard it pop. He complained of symptoms including reduced sensation. It was noted that there was no previous injury to the ankle. He was diagnosed with a left ankle fracture with posterior laceration and then transferred to the local VA facility in Huntington for repair of a left ankle fracture, with plates, screws, and rod. X-rays completed at the VA showed a trimalleolar fracture of the ankle. It was noted elsewhere that the x-rays showed fracture and subluxation. Following the procedure, an additional x-ray was completed, showing that the fracture of the lateral malleolus had been transfixed by an intramedullary nail. Simply put, the Board finds that the Veteran's allegations of an in-service incident involving left ankle injury are not credible. Reference to this incident is not only noticeably absent from the Veteran's in-service treatment records but is similar in description to the incident as described in the post-service treatment records. Although the Veteran reports that this injury occurred while he was in a training, he was discharged from active military service in January 1981, roughly six years prior to this incident. His military records show discharge from the Reserves in November 1982. Further, these records specifically note that the Veteran did not have a past injury to the ankle and show that injury was received from getting out of his personal vehicle, rather than a military vehicle. While the Veteran's recent private treatment records reflect a history of "joint replacement, ankle, 1977," which would have been while the Veteran was on active duty, upon description of this procedure, the records appear to be referring to the 1987 injury. Specifically, the record shows that the Veteran had an "old injury and has pins etc. at the VA in Huntington." Although a Veteran is generally considered competent to describe events from service, even when they are not included in the records, this incident as described is inconsistent with the information contained in the available records. In the absence of an injury, the first element of service-connection for the left ankle is not met, and service connection cannot be granted. Furthermore, the Board notes that the duty to assist requires provision of an examination when there is a current disability, an in-service event, and a possible nexus connecting the event to a current disorder. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, without evidence of an in-service injury, the threshold has not been met. The Veteran has not made any allegations that his left ankle condition is due to his right knee condition and has solely contended that such was caused by the in-service injury described above. Accordingly, service connection for a left ankle condition on that basis is not warranted. Right Knee The Veteran contends that service connection for a right knee condition is warranted based on in-service injury. The presumption of soundness attaches, as the November 1976 enlistment examination shows that the Veteran's knees were evaluated as normal. 38 C.F.R. § 3.304(b). While service treatment records (STRs) raise the possibility that the Veteran had torn a ligament in his knee prior to service, there is no clear and unmistakable evidence that demonstrates that the Veteran's disability preexisted service to rebut that presumption. The Veteran's October 2016 VA knee and lower leg conditions examination report includes a diagnosis of degenerative arthritis in the right knee. During the February 2021 Board hearing, the Veteran reported that while stationed at Fort Eustis, he was sent on a mission to Fort Drum where he injured his knee. He was on skis when a fellow soldier came down the hill and took his legs out from under him. He reported that when this happened, it dislocated his right kneecap. He reported visiting a medic, who put his right knee back into place three days after the injury. He further reported that on his return to Fort Eustis, he went to the doctor, at which time they wrapped it, gave him a knee brace, drained the fluids off, and gave him Cortisone shots. The Veteran's STRs do not include reference to this incident or the related medical visits described by the Veteran during the hearing. However, the records do support that he was treated for recurrent right knee dislocations towards the latter part of his active duty service. In November 1979 records, completed while the Veteran was in Germany, he reported a right knee injury, stating that when another person lifted his leg, he felt a pop. It was noted that an x-ray was taken, showing that the right patella was laterally displaced, although the radiographic report of record states that the films were incomplete and should be repeated. The following day, records showed that this was the third episode of lateral patellar dislocation on the right knee, with swelling and apprehension. The Veteran was afforded a provisional diagnosis of patellar subluxation - recurring. His treatment plan included placement in a soft cast with plaster slabs and crutches. The following month, it was noted that he had been put in the cast, which was removed after two weeks. By the end of December 1979, the Veteran was receiving physical therapy for his right knee and was on a temporary light profile. The Veteran's knee was also mentioned on the January 1982 examination that was completed roughly a year after the Veteran's period of active duty. On the Report of Medical History, the Veteran indicated that he had received treatment for his knee while in Germany. The examiner wrote that he has had problems while in the Army, and still has difficulty when he bends or runs, stating that the knee gets dislocated. The examiner found that Veteran was still unable to do exercise because of the knee. On the Report of Medical Examination, the Summary of Defects and Diagnoses section indicates that the Veteran experiences recurrent dislocation at the patella prior service/treatment while in active duty. It was noted that this condition was uncorrected. Notably, the Board finds that the Veteran's testimony as to the reported in-service skiing injury at Fort Drum is not credible. Although he describes this incident in some detail, there is no corroboration in his STRs that he received treatment either at Fort Drum or at Fort Eustis, as described. Furthermore, his personnel records do not contain any reference to temporary duty travel (TDY) or other travel to Fort Drum. While injury to his right knee is recorded in his November 1979 records while he was in Germany, there was no mention in these records of any prior in-service skiing accident, or that he had previously injured his right knee. Additionally, considering the finding that the Veteran's testimony regarding his alleged in-service ankle condition was not credible, as discussed above, this raises doubt as to the credibility of his testimony regarding the knee injury. Regardless, the Veteran's right knee injury from November 1979 is well-documented in his record. As such, an in-service injury has been established. Accordingly, the only remaining requirement for establishing entitlement to service connection is a nexus between the in-service injury and the Veteran's current disability, and the Board will proceed with consideration of this. Following service, an MRI was completed on the right knee in October 2015, identifying lateral patellar tilt and subluxation. During the October 2016 VA knee and lower leg examination, the Veteran reported the in-service skiing incident, his in-service treatment in 1979, and treatment for knee pain that he received in 2000 while working in a coal mine. He disclosed that he had worked as a mechanic in a coal mine for 32 years. the examiner provided a negative nexus opinion, reporting that he believed the lateral patellar dislocations were acute and self-limited conditions. He noted no chronic knee condition and treatment in service and that the Veteran did not continue to receive care after getting out of service until 2000. The examiner concluded that the Veteran's degenerative joint disease was more likely from his civilian job as a mechanic in a coal mine as well as part of generalized degeneration due to age. However, following this examination, the Veteran clarified in his October 2017 VA Form 9 that his right knee was injured during service, and that he has had recurrent dislocations since service. He stated that he has continued to seek treatment and care for his condition from the time that he got out of the Army to the present and that he has battled this condition since his time in the military. Although it is unclear when the Veteran was first treated for his knees as a civilian after discharge, the Veteran has reported that the symptoms have continued. Notably, the January 1982 examination indicates that he was experiencing dislocations in the right knee for at least one year after active duty. The Veteran further confirmed that he has continued to receive medical treatment for his knee since service at the hearing, stating that he has received Cortisone shots and has undergone several different operations. Accordingly, despite the negative nexus opinion offered by the VA examiner, testimony offered on the October 2017 VA Form 9 and at the February 2021 hearing suggest that the Veteran has consistently experienced problems with both of his knees since the reported in-service injury. The Veteran's STRs show that he received treatment to the right knee for recurrent dislocations in November 1979. The Veteran's medical records indicate that he currently suffers from arthritis in the right knee, specifically noting that problems with his kneecap have continued. As such, the Board finds that the evidence is at least in equipoise that the Veteran's currently diagnosed right knee arthritis had its onset in service. Therefore, service connection for a right knee disability is warranted. REASONS FOR REMAND During the February 2021 Board hearing, the Veteran raised the contention that his left knee disability is secondary to his right knee condition. Specifically, he indicated that because of injury to his right knee, he has had to put extra strain on the left knee and has had to have a knee replacement. Considering the grant of service-connection for the Veteran's right knee condition, remand is required for an examination and medical opinion which addresses the etiology of the left knee condition. Additionally, complete records for the left knee treatment should be secured. The Veteran's October 2016 VA knee examination indicates that it took place in July 2016. The matters are REMANDED for the following action: 1. Contact the Veteran and request properly executed releases for any private care providers who have provided left knee treatment, to include the left knee replacement in 2016. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Associate with the claims file complete, updated VA treatment records. 3. Schedule the Veteran for a VA knee conditions examination; the claims folder must be reviewed in conjunction with such. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any current left knee disability was caused or aggravated by service, to include the service-connected right knee condition. 4. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.P. Faris 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.