Citation Nr: 21028179 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-14 625A DATE: May 10, 2021 ORDER Entitlement to service connection for a right knee disability to include as due to his service-connected left knee disability is denied. REMANDED Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran's right knee disability was not caused or aggravated by his service-connected right-knee disability, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a right knee disability are not 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 from May 1984 to June 1987. This matter was previously remanded by the Board of Veterans' Appeals (BVA) in September 2018 and February 2021 for additional development. It now returns for further appellate review. 1. RIGHT KNEE DISABILITY The Veteran seeks service connection for a right knee disability. See May 2015 VA Form 9. Legal Criteria Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). 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. See Wallin v. West, 11 Vet. App. 509, 512 (1998); 38 C.F.R. § 3.310 (2018). Factual Background The Veteran's May 1984 entrance examination revealed no lower extremity abnormality. See Service Treatment Records (STRs)-Medical. In March 1987, The Veteran was treated for left knee complaints including left knee anterior cruciate ligament (ACL) condition. See March 1987 Outpatient Clinic Note, in STR-Medical. The Veteran reported a bad knee at his April 1987 separation examination; however, his lower extremity was considered clinically normal upon examination. The Veteran's post-service treatment records confirm that he has a history of a right knee injury related to a motor vehicle accident (MVA). See April 2010 VA Primary Care Treatment Record. The Veteran was granted service connection for a left knee disability in January 2009. See January 2009 Rating Decision. In November 2018, the Veteran underwent a VA examination for his right knee claim. See November 2018 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). The Veteran was diagnosed with right knee internal derangement with residual instability and right status post fracture lower leg with residual scar proximal tibia. Id. The November 2018 X-ray of the Veteran's right knee was normal with no evidence of fracture, or bone/joint deformity. See November 2018 VA X-ray Report. The November 2018 VA examiner opined that the Veteran's right knee disability was less likely than not related to active service. See November 2018 VA Medical Opinion DBQ. In her rationale, the examiner noted that she reviewed the Veteran's service records, which involved his left knee. She further stated that "there was no associated [right] knee complaint (e.g. due to compensatory gait ect....) until he had an MVA affecting the [right] knee post military service." Id. The Veteran's claim was remanded in February 2021 and it was determined in that decision that the November 2018 and January 2019 VA medical opinions regarding secondary service connection were inadequate. As such, the Board will only address the direct service connection part of the examinations, and not address the analysis provided in the examinations as they pertain to secondary service connection. Additionally, pursuant to the February 2021 Board remand, the VA obtained an addendum medical opinion in March 2021. See March 2021 Medical Opinion DBQ. The examiner opined it was less likely than not that the Veteran's right knee disability was proximately due to or aggravated by the Veteran's service-connected left knee disability to include any altered gait and/or body mechanics. Id. She explained in her rationale, the Veteran injured his left knee in service and has had ongoing complaints for his left knee, however "[a]ll records subsequent to this left knee injury do not mention a gradually developing right knee condition." Id. She further noted that the Veteran's right knee complaints began "after suffering an MVA (unknown date)" and that subsequent evaluations of his right knee including multiple X-rays have been unremarkable. Analysis 1. Direct Service Connection The Veteran's current right knee diagnosis includes internal derangement with residual instability and status post fracture lower leg with residual scar proximal tibia. See November 2018 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). As such, the first element of service connection, a current disability, has been met. However, the Veteran's STRs are silent for any treatment, complaint, or diagnosis of a right knee disability. Additionally, the Veteran has not asserted that he injured his right knee during active service. Thus, the second element, an in-service injury or event, has not been met. Without an in-service illness or occurrence, a nexus cannot be established between the Veteran's service and his current right knee disability. Notably, the November 2018 VA examiner provided a negative nexus opinion. See November 2018 VA Medical Opinion DBQ. Specifically, she stated that "there was no associated [right] knee complaint (e.g. due to compensatory gait ect....) until he had an MVA affecting the [right] knee post military service." Id. The Board considered the Veteran's lay statements in deciding the claim. To the extent that the Veteran seeks to establish a nexus through his own lay assertions that his right knee is related to his service, he is not competent to offer opinions as to the etiology of a right knee disability. The Veteran's right knee diagnoses including internal derangement with residual instability and status post fracture lower leg with residual scar proximal tibia, requires specialized medical training for determinations as to diagnosis and causation. The Veteran has not shown he possesses the medical knowledge to diagnose or provide an etiology opinion. Therefore, the Veteran's opinion lacks probative weight, and there is no competent and credible evidence of a nexus between the current right knee disability and service. Therefore, based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a right knee disability, as there is no in-service disease or injury. There is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Secondary Service Connection As noted above, the Veteran's has current right knee disabilities. Thus, the first element of secondary service connection has been met. The Veteran is service-connected for a left knee disability. See January 2009 Rating Decision. Accordingly, the second element of secondary service connection, a service-connected disability, has been established. The issue for the Board is whether the Veteran's right knee disability was caused or aggravated by his service-connected left knee disability. The March 2021 VA examiner opined it was less likely than not that the Veteran's right knee disability was proximately due to or aggravated by the Veteran's service-connected left knee disability to include any altered gait and/or body mechanics. See March 2021 Medical Opinion DBQ. The examiner reasoned that although the Veteran sustained a left knee injury in service and had ongoing complaints for his service-connected left knee disability, there was no mention of a "gradually developing right knee condition." Id. Rather, the Veteran's right knee complaints occurred "after suffering an MVA (unknown date)." The March 2021 VA medical opinion was based on review of the pertinent records, considered an accurate history, was definitive and was supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board affords the March 2021 VA medical opinion great probative weight. Notably, there are no other medical opinions of record. Here, based on the March 2021 VA examiner's opinion, the Board concludes that the Veteran's right knee disability was not proximately caused by his service-connected left knee disability because his right knee disability was noted to be associated with an MVA. See April 2010 VA Primary Care Treatment Record. Additionally, both the March 2021 and November 2018 VA examiners have opined that his right knee disability began after the MVA. The Board also concludes that the Veteran's right knee disability was not aggravated by his service-connected left knee disability because the March 2021 VA examiner explained that the Veteran's ongoing left knee complaints did not include complaints of a "gradually developing right knee condition." It was also noted that the Veteran did not have an altered gait and/or body mechanics. Id. As such, the evidence does not support finding that his service-connected left knee disability aggravated his current right knee. The Board also considered the Veteran's lay statements. While the Veteran attributes his right knee disability to service and to his service-connected left knee disability, the Board ultimately finds the medical opinion of the March 2021 VA examiner outweighs the Veteran's lay statements based on her medical education, training, and experience, and based on the detailed rationales provided as to her conclusions. See 38 C.F.R. § 3.159 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The competent and probative evidence suggests that the Veteran's right knee disability was not caused or aggravated by his service-connected left knee disability. Consequently, the Veteran is also not entitled to service connection for a right knee on a secondary basis. 38 C.F.R. § 3.310. Thus, the claim for entitlement to service connection for right knee as secondary to the Veteran's service-connected left knee disability is denied. REASONS FOR REMAND 1. TDIU to include on an extra-schedular basis is remanded. The claim for TDIU is remanded for referral for extra-schedular consideration. Despite the Veteran's representative's argument in the July 2020 Appellate Brief, the Veteran did not meet the schedular threshold requirements for TDIU. The Veteran is service connected for unspecified depressive disorder, rated as 50 percent disabling; left knee instability, with rated as 20 percent disabling; left knee degenerative joint disease, rated as 10 percent disabling; and residual nondisplaced left distal fracture, residual avulsion fracture of the tip of left thumb, and left knee limitation of extension, each rated as noncompensable. See April 2020 Rating Decision. His total combined disability rating was 60 percent. Id. As such, the Veteran does not meet the schedular requirements under 38 C.F.R. § 4.16(a) because his combined disability rating is less than 70 percent. The Veteran may be entitled to TDIU on extra-schedular basis if it is established that he was unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Under 38 C.F.R. § 4.16(b), if the schedular percentage threshold criteria are not met for TDIU, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Services, for extraschedular consideration of an earlier effective date for TDIU. 38 C.F.R. § 4.16 (b). Neither the Agency of Original Jurisdiction (AOJ) nor the Board may assign an extra-schedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Here, the evidence reflects that the Veteran may be unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. The Veteran reported that he stopped working as a trash collector in July 2013 in his formal TDIU application. See September 2019 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. His highest level of education is a high school diploma. Id. Additionally, the Veteran's Social Security Administration (SSA) earnings report confirm he last worked in 2013. See SSA Earning Report. The Veteran reported that he quit his job as a garbage collector due to his left knee disability because it was too painful to repetitively get on and off of the truck during the April 2011 VA examination. See April 2011 VA Examination. Similarly, he sated he lost his job due to his knee condition during the April 2019 VA examination. See April 2019 VA Knee and Lower Leg Conditions DBQ. Additionally, in October 2016, Dr. H.H.-G. provided a private medical opinion regarding the Veteran's service-connected psychiatric disability. See October 2016 October 2016 Private Mental Disorders DBQ and Addendum. She opined that the Veteran "cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive disorder. Id. As the above-cited evidence indicates that the Veteran may be unemployable due to his service-connected disabilities, the Board finds a referral to the Director, Compensation Service is warranted. The matters are REMANDED for the following action: 1. The Regional Office (RO) should also undertake any additional development deemed necessary for the Veteran's TDIU claim. 2. Following any necessary development, refer the claim to the Director, Compensation Service for consideration of an extraschedular TDIU rating in accordance with 38 C.F.R. § 4.16(b). A full statement regarding the Veteran's service-connected disabilities, employment history, educational and vocational training, and all other factors pertaining to the issue must be provided. 3. Should the Director indicate that further evidentiary development is required, such development should be undertaken. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.