Citation Nr: 21029912 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-08 091 DATE: May 17, 2021 ISSUES Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability. Entitlement to service connection for a lower back disability, to include as secondary to a service-connected left knee disability. ORDER Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability is granted. Entitlement to service connection for a lower back disability, to include as secondary to a service-connected left knee disability is denied. FINDINGS OF FACT 1. Resolving all doubt in his favor, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's right knee disability, is related to his service- connected left knee disability. 2. A lower back disability was not manifest during active service, or until many years after service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 3. A lower back disability is not caused or aggravated by the Veteran's service-connected left knee disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.310. 2. A lower back disability was not incurred in or aggravated during service, may not be presumed to have been incurred in or aggravated during such service, and is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1967 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran previously filed a claim for service connection for a right knee disability and a lower back disability which were denied in a September 2013 rating decision. The Veteran did not appeal that decision and it became final. In June 2015, the Veteran filed to reopen the previously denied claims, which were subsequently denied in the October 2015 rating decision on appeal. In January 2020, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO in St. Petersburg, Florida. A transcript of the testimony has been associated with the record. In April 2020 the Board determined that new and material evidence had been received and reopened the Veteran's claims for entitlement to service connection for a right knee disability and a lower back disability. The Board then remanded the issues in an April 2020 decision/remand for further development. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the Board will proceed to the merits of the issues on appeal. Service Connection Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Further, service connection may be warranted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). A disability deemed proximately due to or the result of a service-connected disease or injury shall be service connected ("secondary service connection"). 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also 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), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability. The Veteran is claiming service connection for his right knee disability, to include as secondary to his service-connected left knee disability. The Veteran underwent a left knee meniscotomy in 1977 and was granted service connection for his left knee disability effective July 1978. The Veteran's service treatment records are silent for any diagnosis or treatment for a right knee disability during active service. The Veteran's April 1971 separation examination is silent for any mention or complaints of right knee problems. Private treatment records reflect that in April 2012 the Veteran was diagnosed a right knee meniscal tear and both of his knees underwent cartilage restoration surgery. VA provided the Veteran with an examination for his knees in June 2013. Upon review of the Veteran's claim file and after conducting an in- person examination of the Veteran, the examiner diagnosed degenerative disc disease of the right knee. The Veteran reported that he suffered from right knee swelling and occasional locking and giving way. The examiner opined that it was less likely than not that the Veteran's right knee disability was caused by or the result of his left knee condition. In providing a rationale the examiner explained that the Veteran appeared to have generalized osteoarthritis as he had changes on both of his knees. The examiner however failed to address whether the Veteran's right knee disability was aggravated, beyond its natural progression, by his service-connected left knee disability. The Veteran testified at the January 2020 Board hearing that after he had cartilage removed from his left knee, he began to have difficulty with his right knee, which made it difficult for him to sleep. The Veteran also testified that following the total knee replacement of his left knee in June 2018, the discomfort in his right knee escalated, and he started limping, and avoiding stairs or anything that puts any undue stress on his right knee. As the Veteran's testimony suggested worsening of his right knee due to his service-connected left knee disability, the Board remanded the matter in April 2020 for an addendum opinion to determine if the Veteran's right knee disability was aggravated by his left knee disability. In January 2020 a private opinion was added to the claims file. At that time Dr. E.C. reviewed the Veteran's service treatment records, medical records since separation from service and the statement of the case and also conducted an in-person examination of the Veteran. The examiner opined that the Veteran's right knee disability was most likely (51 percent probability or better) compounded by his left knee condition. Dr. E.C. stated that initially at the time that the Veteran underwent a left total knee replacement he had bilateral knee osteoarthritis and the left was worse than the right. In his report, Dr. E.C.'s report he explained that the Veteran's symptoms in his right knee have progressed and the progression of symptoms in the right knee were compounded by his advanced arthrosis of his left knee and the need for left knee replacement and subsequent rehabilitation following the knee replacement. The examiner determined that the Veteran's right knee arthritis had progressed to arthroplasty level. In August 2020 the Board-directed medical opinion and Disability and Benefits Questionnaire (DBQ) was completed. At that time, the examiner found that upon review of the Veteran's medical records and a physical examination it was her opinion that it was less likely than not that the Veteran's right knee condition was aggravated beyond its natural progression by his left knee condition. The examiner stated that the Veteran developed severe osteoarthrosis in both knees which is the same pathology from years of wear and tear. The Board notes that in providing the addendum opinion for secondary service connection the August 2020 examiner clicked the box for the opinion under the section of the report labeled, "Medical Opinion for Aggravation of a Condition that Existed Prior to Service" rather than the section labeled "Medical Opinion for Secondary Service Connection." The check box next to the former appears to be misplaced as the overall context and language used by the examiner in providing a rationale is consistent with the later. Medical reports must be read as a whole and in the context of the evidence of record. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). As such, the Board finds the misplaced opinion to be a mere typographical error, and it is clear that the examiner intended her opinion to refer to the secondary-aggravation theory as raised by the Veteran's contentions. In consideration of the above, the Board notes that the VA examiners who rendered the June 2013 and August 2020 opinions, as well as the Veteran's private physician, Dr. E.C. were all competent to opine as to the etiology of the Veteran's right knee disability. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159 (a)(1). Based on the foregoing, the Board finds that the evidence for and against the claim are in relative equipoise. On the one hand, the VA examiners have found that the Veteran's right knee disability is not related to his left knee disability. The VA examiners have concluded that the Veteran has right knee osteoarthritis which they have attributed to years of wear and tear and the condition is not caused by or aggravated by his left knee disability. On the other hand, the Veteran's private physician has opined that upon review of the records and his examination that following the Veteran's left knee replacement, the symptoms in his right knee progressed and as such the Veteran's right knee disability has been compounded by his left knee disability. Both the VA opinions and the private physician's opinion provide a plausible explanation for the Veteran's right knee disability. Accordingly, in resolving any reasonable doubt in the Veteran's favor, the evidence is found to be in equipoise as to the question of whether it is at least as likely as not that the Veteran's right knee disability is related to his service-connected left knee disability by way of aggravation. The Veteran is therefore entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, the Board finds that service connection for the Veteran's right knee disability is warranted. 2. Entitlement to service connection for a lower back disability, to include as secondary to a service-connected left knee disability. The Veteran is claiming service connection for his lower back disability, to include as secondary to his service-connected left knee disability. The Veteran's service treatment records are silent for any diagnosis or treatment for a back disability during active service. The Veteran's April 1971 separation examination is silent for any mention or complaints of back problems. A February 2013 private radiology report reflects that degenerative changes were found on the Veteran's lumbar spine, consistent with chronic endplate changes and disc space narrowing. VA provided the Veteran with an examination for his back in June 2013. Upon review of the Veteran's claim file and after conducting an in- person examination of the Veteran the examiner diagnosed degenerative disc disease, spondylosis of the lumbar spine. The Veteran reported that he was suffering from low back pain which was causing him difficulty with sleeping. He denied any specific injuries to his back. The Veteran reported that he attended physical therapy. The examiner opined that the Veteran's claimed lower back disability was less likely than not (less than 50/50 probability) caused by or a result of his service-connected left knee disability because he had generalized osteoarthritis in the cervical and lumbar spine. The examiner however failed to address whether his lower back disability was aggravated, beyond its natural progression, by his service-connected left knee disability. The Veteran testified at the January 2020 Board hearing that after he had cartilage removed from his left knee, he began to have discomfort in his lower back, which made it difficult for him to sleep. The Veteran also testified that it was his belief that the pain in his lower back was caused by him favoring his right knee over his left. He further stated that by strengthening his left knee, he could feel a big difference in his lower back. In August 2020 an addendum medical opinion and Disability and Benefits Questionnaire (DBQ) was completed. At that time, the examiner found that upon review of the Veteran's medical records and a physical examination, it was her opinion that it was less likely than not that the Veteran's lumbar back condition was aggravated beyond its natural progression by his left knee disability. The examiner stated that the Veteran developed degenerative disc disease of the lumbar spine, which is the same degenerative pathology from years of wear and tear. As discussed above, the Board notes that in providing the addendum opinion for secondary service connection the August 2020 examiner clicked the box for the opinion under the section of the report labeled, "Medical Opinion for Aggravation of a Condition that Existed Prior to Service" rather than the section labeled "Medical Opinion for Secondary Service Connection." The check box next to the former appears to be misplaced as the overall context and language used by the examiner in providing a rationale is consistent with the later. Medical reports must be read as a whole and in the context of the evidence of record. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). As such, the Board finds the misplaced opinion to be a mere typographical error and it is clear that the examiner intended her opinion to refer to the secondary-aggravation theory, as raised by the Veteran's contentions. The Board finds the June 2013 and August 2020 VA medical opinions to be of great probative value. Indeed, the examiners considered the Veteran's contentions, the claims file, and clinical medical evidence before providing negative opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiners' negative opinions were supported by sufficiently clear and well-reasoned medical rationale and were consistent with the verifiable facts regarding the Veteran's contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). For example, the examiners explained that the Veteran has generalized osteoarthritis in the cervical and lumbar spine which was attributed to years of wear and tear, rather than the Veteran's active duty service or his left knee disability. There is no evidence that the June 2013 and August 2020 VA examiners were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds that they are entitled to significant probative weight as to the etiology of the Veteran's lower back disability. See Nieves-Rodriguez, Id. The Board acknowledges that the Veteran is competent to provide statements as to his beliefs that his lower back disability is related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; "[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran is competent to provide statements about his symptoms relating to his claimed lower back disability. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of such a condition of any kind. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. In addition, the Board finds that the gap in time between the Veteran's last date of active service, in May 1971, to his initial evaluation by any medical provider regarding his lumbar spine in February 2013 to be probative of a lack of nexus between the diagnosed current disability and active service. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). With regard to presumptive service connection for the back disability, the weight of evidence shows no chronic symptoms of this condition during active service, no continuous symptoms of the condition since service, and that the conditions did not manifest to a compensable degree within one year of service. Additionally, based on the evidence of record, the Board notes that the Veteran has not alleged continuity of symptomatology, nor has it been shown by the evidence of record. Thus, characteristic manifestations sufficient to identify the disease entity in service or within one year following discharge have not been shown. The Board finds that the Veteran's back disability was first manifest years post-service and that there is no nexus to service. 38 C.F.R. §§ 3.303, 3.307, 3.309. There are no competent medical opinions of probative value in favor of a positive nexus to active service from any VA examiner or medical treatment provider from any source. Upon review of the record, the Board concludes that entitlement to service connection for a lower back disability is not warranted, either via direct or secondary service connection. The Board notes a current diagnosis of degenerative disc disease of the lumbar spine, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran's contentions, and the Veteran's post-service statements are noted. However, the record is silent for any diagnosis of a lower back disability until the degenerative changes were found with the Veteran's lumbar spine in February 2013, and there is no competent evidence to tie the current assertion to any in-service disease or injury. The Board thus finds the Veteran fails the third prong of the test for entitlement to service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. In summary, the medical evidence in this case outweighs the Veteran's assertions that his lower back disability is of service origin or was caused or aggravated by his service-connected left knee disability. For these reasons, the preponderance of the evidence is against the claim and service connection for a lower back disability is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.