Citation Nr: 21029574 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-40 666A DATE: May 14, 2021 ORDER Entitlement to service connection for bilateral knee disabilities, diagnosed as osteoarthritis and residuals of total arthroplasty of the knees, is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's bilateral knee disabilities, diagnosed as osteoarthritis and residuals of total arthroplasty of the knees, is related to his service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral knee disabilities, diagnosed as osteoarthritis and residuals of total arthroplasty of the knees, are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from November 1969 to November 1971. He is a veteran of the Vietnam War Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veteran's Benefits Administration (VBA) in Waco, Texas, which is the Agency of Original Jurisdiction (AOJ). The Veteran and his wife later provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2020. A transcript of that hearing is associated with the claims file. This matter was previously before the Board in March 2020 at which time it was remanded. 1. Entitlement to service connection for a bilateral knee disability to include osteoarthritis Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). If a chronic disease, is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). Continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Analysis The Veteran has asserted that his knee disorder is related to basic training in service, specifically being required to perform the "low crawl" exercise repeatedly, and that it continued and worsened since that time. The Veteran's service treatment records are silent for complaints of a knee disorder. The Veteran was diagnosed with osteoarthritis in May 2012 and underwent knee replacement surgeries in 2014 (right) and 2016 (left). May 2012 VA medical records note complaints of knee pain and swelling in the knees. The Veteran denied any recent injury. He reported that he had bilateral knee pain for an extended period of time and that the pain increased in the last 3-4 weeks. Crepitus and left knee inflammation with tenderness over the lateral aspect and decreased range of movement were noted. He was given steroid injections in his knees for pain. X-rays taken on May 4, 2012 showed "degenerative changes to both knees especially the right medial compartment." June 2012 to February 2013 VA medical records note chronic bilateral knee pain. The Veteran denied any recent injury. He reported pain in his right knee, 10 out of a scale of 1-10. He was having a hard time walking and placing pressure on right leg. He reported sharp/stabbing pain, increased with ambulation. He reported difficulties going from sitting to standing, walking, and standing. He stated that it was difficult to walk and the pain increased with movement especially while walking in his job as a detention officer. The Veteran stated that his knee pain causes him to be unable to perform his job. The Veteran was referred to an orthopedic surgeon. In August 2014, the Veteran submitted a statement that he volunteered in 1969. During the weeks of basic training he passed all drills, exercises and details except for the low crawl and infantry course. He stated that for some reason his knees would not help him in the rubber mat. He never had any problems with his knees prior to service. He stated that the drill sergeants noticed that he could not do the low crawl and would make him do it over and over to the point that his knees would bleed, swell and have burn marks. He stated that they would also have him do the low crawl by himself before daylight and after sundown but his knee kept hurting and he could not do the exercise. He did not go to sick call because he did not want a medical discharge and was afraid of a less than honorable discharge. After being honorably discharged two years later, he worked in a refinery for over 25 years. He stated that he would pray that his knees would not give out when climbing tall towers. He then worked as a contract detention officer for 15 years and noticed that "it was impossible to walk from point A to point B because of the constant pain in my knees." Eventually, he went to a VA clinic because the pain was too much to bear. He was given cortisone shots in both knees. In 2014, he had a total right knee replacement and at that time a left knee replacement was also planned. The Veteran's wife submitted a statement in August 2014. She stated that she had known the Veteran for 45 years and was married to him for 40 years. They were dating when he enlisted in the army. After the Veteran was discharged, he would complain about pain in his knees. He told her that he was made to do certain exercises over and over including one known as the low crawl. She stated that the Veteran "walks more and more with a limp." A statement was submitted in August 2014 from a friend who knew the Veteran for 40 years. He is also a Vietnam Veteran. Years later, the Veteran was his supervisor at work. He stated that he noticed the Veteran "walked kind of funny." The Veteran told him that while he was in basic training, he was forced to do the low crawl over and over, day in and day out. Another longtime friend also submitted a statement in August 2014 that noted that after they returned from service, the Veteran told him that his knees were bad because he was made to do the low crawl over and over to the point where his knees were in a lot of pain. The Veteran, his wife, and several friends testified at a hearing in January 2020. The Veteran testified that he did not have a problem with his knees before service. He used to play sports in high school and enlisted shortly after graduation. He was sent to basic training and the drill sergeants told him that he was going to Vietnam and "better do everything right and learn everything right." When it came to the PT test, he would do every exercise except for the low crawl, which is where you get down on your knees and elbows and crawl for about 40 yards. He did it but they wanted him to do it faster because there was a competition with another unit. The Veteran testified that he was required to do the exercise before breakfast, and after lunch and dinner, when everyone else had post privileges, and he stayed to do the low crawl to the point that his knees "got bad, they were bleeding, they were black and blue." The Veteran stated that he wrote to his brother and told him that his knees were giving out because he was doing the low crawl too much. He stated that he did not go to medical or report his knee problem because he volunteered against his parents' wishes so he didn't want to get a medical discharge. He stated that his knees continued to bother him after basic training. The Veteran stated that when he was deployed to Germany, his knees bothered him because of the cold weather. He would feel pain constantly; his knees would swell. His knees continued to bother him after service. He was unable to play softball or baseball because he couldn't run, couldn't bend over. When he started going to the VA, they gave him physical therapy but it didn't help. He testified that he began getting cortisone shots in his knees from a private doctor. Ultimately, he had knee replacement surgery. He stated that his knees still hurt after the surgery. The Veteran's wife testified that the Veteran complained about his knees after he returned from service. She would help him "get up from the couch or chair." She stated he did not have that problem before service. She was surprised that his knees were so bad. She stated that they used over the counter medication such as Bengay and medication prescribed by doctors. She stated his knees are getting worse and they have to help him "by pulling him up so he can walk." The Veteran's daughter testified that she remembered him having knee problems. He would ask her to help him tie his shoes or take off his socks which she now realizes was because he couldn't bend his knees or get on his knees or bend over. She stated that she remembered taking him to get injections in his knees for the pain. She stated that currently family members take turns helping the Veteran from the couch because if he sits down for more than 20 or 30 minutes, he needs assistance to help him off the couch. The Veteran's friend testified that when the Veteran returned from military service, he was always complaining about his knees. He couldn't play softball anymore because he couldn't run. He would get cortisone shots. He started wearing braces. Then, he had the knee replacement surgeries and he was always in pain afterward. Another friend testified that the Veteran used to love playing baseball, and he had a team but after service he could no longer play. Another friend testified that prior to service they would play football, baseball and after service, the Veteran would wear bandages to keep his knees warm so that they didn't swell. This friend stated that when they were younger, they were taught not to complain, and to just do what needed to be done. The Board remanded the Veteran's appeal in March 2020, finding that the evidence of record showed current disabilities of the Veteran's knees and competent and credible testimony of an in-service knee injury, and an indication of a medical nexus. Therefore, the Board found that the Veteran was entitled to a VA examination to determine the nature and etiology of his knee disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board directed that the examiner must consider the Veteran's reports of initially injuring his knees during basic training while performing low crawl drills and experiencing knee pain since that time to be competent and credible lay evidence. As such, the offered nexus opinion could not discount this evidence for a lack of corroborating service treatment records. In its decision, the Board noted that the Veteran has asserted that he began to experience "knee problems" during service, and such have worsened since that time. The Veteran's service treatment records do not contain complaints, treatment, or diagnosis for bilateral knee injuries during service; however, he asserts that he initially injured his knees during basic training while performing repeated "low crawl" drills. The Veteran's wife and three friends submitted statements and also testified during the January 2020 hearing that he has experienced knee pain and difficulty ambulating since his service separation. The Veteran submitted private treatment records showing that he underwent right knee total replacement surgery in May 2014, and May 2015 x-ray testing of his left knee showed of "bone-on-bone osteoarthritis with complete loss of cartilage space tricompartmental varus alignment with circumferential osteophytes." The Board noted that May 2015 treatment record included a note by a private clinician, stating that the Veteran's bilateral knee disabilities "happen[ed]" while performing low crawl drills during his active duty; however, the Board found it unclear whether this represented the clinician's etiological opinion or a recitation of the Veteran's assertions. The Board noted that this record was internally inconsistent, including notations that the Veteran's knee pain was unrelated to any injury and began approximately 10 years prior (approximately May 2004) while also relating the Veteran's knee disability to service. Here, the Board finds that on closer review, the May 2015 private medical record is not internally inconsistent. The physician provided an opinion that the symptoms and current knee disorder is posttraumatic osteoarthritis due to the physical training required in the military. Read in conjunction with the physician's opinion and other medical records of the same time period, this record indicates that the Veteran's experienced injury to his knees and pain during service due to repetitive low crawl exercises. Thereafter, in approximately 2005, the pain was gradual and was unrelated to any new injury, as is indicated in other medical records. Pursuant to the remand, the Veteran was afforded a VA examination in January 2021. The examiner noted a diagnosis of bilateral knee pain status post bilateral knee arthroplasty. The Veteran reported that he has had bilateral knee pain since "basic training where he had to complete multiple low crawls repetitively." He stated that he had bilateral knee pain and bruising after these physical events. He was treated with "cortisone shots, bilateral knee replacements, and physical therapy as he aged and his knee condition worsened. He described his current symptoms as "stiff knees, can't sit too long, can't stand too long, unable to walk long distance, unable to kneel, bend over, struggle lacing shoes." He uses over the counter analgesics and Bengay/Biofreeze. He reported daily flareups with moderate and occasional severe pain, precipitated by walking, standing, sitting. He stated he is unable to bend his knee, kneel or run. He stated that he cannot stand for too long, sit for too long, can't tie his shoes, can't bend over, kneel, and is unable to do simple things around the house. He experiences intermediate degrees of residual weakness, pain, or limitation of motion. The examiner noted that knee pain limits the Veteran's ability to walk to approximately 0.5-1 mile, and standing duration to approximately 1 hour before he needs to sit and rest. The examiner opined that the Veteran's knee disability is less likely than not incurred in or caused by an in-service injury, event or illness. The rationale was as follows: The Veteran states that he initially injured his knees from performing repetitive low crawl exercises while in the military, and has had bilateral knee pain since that time. The examiner stated that low crawl is a military exercise that is rough on the knees, but usually results in a contusion pattern of injury if one is sustained. These types of injuries are expected to resolve with time after cessation of the activity as would be expected with a normal bruise. The Veteran's medical record was reviewed from his time in service and there were no records found pertaining to a knee complaint/injury or treatment of either knee. The Veteran's report of medical history from separation, dated 9/16/1971, was reviewed. At that time, the veteran stated "I am in good health. At this time I am under no medication." He furthermore responded "NO" to all complaints of question 11 listing numerous conditions including "arthritis, rheumatism, or bursitis", "bone joint or other deformity", and "trick or locked knee." He replied "NO" to question 20, "Have you ever had any illness or injury other than those already noted" and question 21, "Have you consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years for other than minor illnesses?" This indicates that he had no complaints of knee pain at the time of his separation. The Veteran's report of medical examination from separation, dated 9/9/1971, was reviewed. No abnormalities were reported. The examiner found that the preponderance of the evidence indicates the absence of a chronic knee condition while in military service and at the time of separation in 1971. The development of his knee arthritis is more likely to have resulted from wear and tear over the 41 years in between 1971 and 2012 when the arthritis was discovered than in the 2 years of military service, given the absence of significant traumatic injury or medical evaluation or treatment required. As the Board previously found that the evidence of record showed current disabilities of the Veteran's knees and competent and credible testimony of an in-service knee injury, the first two elements required to establish service connection are met. The remaining element requires a determination whether the evidence establishes a nexus between the Veteran's knee disabilities and military service. To that end, the Board notes that in its previous remand, the Board directed that the examiner must consider the Veteran's reports of initially injuring his knees in basic training in the process of performing low crawl drills and experiencing knee pain since that time to be competent and credible lay evidence. As such, the Board stated that the nexus opinion may not discount this evidence for a lack of corroborating service treatment records. Yet the examiner relied upon the absence of corroborating evidence to find that there was no nexus between the Veteran's knee disability and his service. Therefore, here, the Board finds that nexus opinion is entitled to low probative weight because in spite of the directive, the examiner failed to weigh the Veteran's lay testimony and statements (or those of his spouse and longtime friends) into the determination. When a Veteran has provided lay testimony of an in-service event, an examiner cannot ignore that lay evidence and base his or her opinion that there is no nexus to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Also, compliance with the remand orders of the Board was required. While the Board could again remand pursuant to Stegall v. West, 11 Vet. App. 268 (1998), the Board finds that in the present case, a remand to obtain a more adequate and complete nexus opinion amounts to avoidable delay without benefit to the Veteran, which the United States Court of Appeals for Veterans Claims has advised is to be avoided. Soyini v. Derwinski, 1 Vet. App. 540 (1991). The Board is able to decide the merits of this appeal based upon a review of the evidence of record. Although medical evidence is generally necessary for a nexus to service, lay evidence can be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, to link chronic in-service symptoms to a diagnosed current disability, or as a substitute for a nexus. Lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, certain chronic disorders, like arthritis, when coupled with credible statements of continuity of symptoms, can substitute for competent medical nexus evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). "Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service." 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1339-40 (Fed. Cir. 2013). The Board finds that the Veteran's lay statements provide the requisite showing of the onset of a knee disorder during service and a continuity of symptomatology thereafter that acts as a substitute for a nexus opinion. The Board finds that the Veteran's testimony and statements, along with that of his wife and friends, establish a clear timeline of symptomatology during and after service. The Board finds that the Veteran's lay statements as to the etiology of his bilateral knee disorder are competent and credible in that those statements are supported by the circumstances of his service and the evidence of record, including the private opinion indicating that his knee disability began during service. The record is notably absent of any other intercurrent post-service event or injury. There is also no evidence of record that outweighs the Veteran's lay statements regarding the onset of knee symptoms during service and the continuous presence of knee symptoms since his service continuing to the present post-knee replacement. In summary, the Board finds the evidence is at least in relative equipoise as to whether the Veteran's bilateral knee disorder is related to his military service. The Board finds that the Veteran's bilateral knee disorder is as likely as not related to repetitive low crawl exercises during service and that he has established continuity of symptomatology to warrant service connection for his chronic disability of arthritis and disability arising therefrom. Accordingly, the Board resolves the benefit of the doubt in favor of the Veteran and finds that service connection for the Veteran's bilateral knee disability is warranted. 3 8 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.