Citation Nr: 21029986 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 09-01 651 DATE: May 17, 2021 ORDER Service connection for a right knee disability is denied. FINDING OF FACT A current right knee disorder was not incurred in, or is otherwise etiologically related to, the Veteran's active service; was not caused or aggravated by a service-connected left knee disability; and arthritis did not onset within one year of separation. CONCLUSION OF LAW The criteria for service connection for a right knee disorder, variously diagnosed, have not been met. 38 U.S.C. §§ 1106, 1110, 1116, 5107; 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1991 to June 1997, including foreign service. For his meritorious service, the Veteran was awarded (among other decorations) the Meritorious Service Medal, the Army Commendation Medal, and the Army Achievement Medal. This appeal has been the subject of multiple Board remands, most recently in January 2021. All requested development has been completed; specifically, and of most importance, the Veteran's treatment records have been obtained, and the Board now has an adequate opinion to decide the case. Accordingly, the Board now finds substantial compliance with its various directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection The Veteran is pursuing service connection for a right knee disorder on multiple theories of entitlement. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order 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). Here, the record unequivocally establishes the existence of a current disability. Private treatment records indicate that the Veteran underwent surgery for a chondral defect of the medial femoral condyle in August 2006. He has been diagnosed with multiple right knee disorders since then, to include degenerative joint disease (DJD), chondroplasty of the medial femoral condyle, and moderate chondromalacia of the patellofemoral joint space. See VA examinations dated February 2007 and July 2015; private treatment record dated September 2015. VA and private treatment records spanning the period on appeal also repeatedly document the Veteran's history of chronic right knee pain productive of functional impairment. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). Accordingly, the first element of direct and secondary service connectiona current disability, classified herein as a right knee disorder, variously diagnosedhave been met. Given the Veteran's diagnosis of DJD (arthritis), the Board has considered whether this appeal may succeed on a presumptive basis due to chronicity. However, the Veteran was not diagnosed with this condition until February 2007, nearly one decade following his separation from service. There is no evidence that he was diagnosed with this condition prior to this date or that his DJD onset within one year of his military separation, to include in VA and private treatment records. Accordingly, the appeal fails on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. Nonetheless, the records identifies several theories of entitlement for consideration, including that the Veteran's right knee disorder onset during service; is directly related to an in-service diagnosis of cryoglobulinemic vasculitis, which can contribute to joint damage; is directly related to the physical demands of service, including training runs while carrying the company guidon; or is secondarily related to a service-connected left knee disability. See, e.g., May 2020 representative's brief; buddy statements dated May 2008 . As to the latter contention, the Board confirms that the Veteran is currently service-connected for left iliotibial band (ITB) syndrome. As to the purported in-service incurrences, a veteran is generally competent to report that which he perceives through his senses, including events capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). This Veteran's testimony is also highly credible, as it is well-documented throughout the record and consistent with the nature of his service. Miller v. Wilkie, 32 Vet. App. 249 (2020). Moreover, the record contains significant corroborating evidence, including service treatment records (STRs) which show multiple in-service complaints of right knee pain, including after training runs. As a result, the Veteran was diagnosed with right ITB with tendonitis in April 1991; his reported diagnosis of cryoglobulinemic vasculitis is also documented in June 1991. Additionally, the claims file contains multiple buddy statements reporting that the Veteran's right knee pain was present during service, particularly during training exercises. See May 2008 buddy statements; May 2008 wife's statement. Upon the above, the second element of direct service connection has been met. Thus, this appeal may be granted upon the finding of nexus, whether direct or secondary. Given the prolonged history of this appeal, multiple nexus opinions have been obtained at the Board's instruction. See Board remands dated June 2014, August 2017, February 2018, November 2019, June 2020, and January 2021. Typically, the Board instructed that these addendums be obtained to address an incomplete data point (such as a new theory of entitlement) in a prior opinion; such a finding does not inherently render the earlier opinions inadequate. However, the Board has previously found September 2017, June 2018, and December 2019 VA opinions to be inadequate for their factual inaccuracies and use of improper legal standards. See Board remands dated February 2018 (finding the September 2017 opinion to be inadequate); November 2019 (finding the June 2018 opinion to be inadequate); June 2020 (finding the December 2019 opinion to be inadequate); see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, these opinions lack probative value and will not be considered herein. Further, the Veteran underwent VA knee examinations in April 2012 and July 2015. However, nexus opinions were not provided by these examiners, such that these examinations are not probative evidence with respect to the nexus inquiry. Briefly, the April 2012 examiner diagnosed the Veteran with ITB syndrome, with an onset of 1991. This appears to reference the Veteran's in-service history only, rather than identify any current right knee diagnoses (particularly as supported by contemporaneous evaluation or x-ray evidence). Thus, this limited notation does not stand as competent evidence regarding the nature of the Veteran's current disability, let alone its chronicity since service. Nonetheless, there remains multiple opinions for review. In December 2008, a VA examiner opined that the Veteran's current right knee disorder was less likely than not related to service. In doing so, the examiner concluded that the Veteran's right knee problems during service were consistent with right knee strain. There is no objective data for degenerative arthritis during service. The right knee pain was intermittent and associated with injuries which would have caused these strains. Moreover, there was no documentation for a continued pattern of pain between the Veteran's service and his first orthopedic visit in 2006. Rather, an accompanying note to the 2006 orthopedic visit indicates that the Veteran's right knee pattern "became constant after a running injury" that May, several years after service. As such, there was no clear continuum between the Veteran's service and current right knee complaints, but there was a significant documented etiology for his current right knee condition from an incident after service. An addendum opinion was obtained in March 2017. At that time, the examiner opined that the Veteran's right knee disorder was less likely than not proximately due to or the result of his service-connected left knee disability. Here, the examiner noted that the Veteran's right knee condition "clearly had its onset" in May 2006, following a running injury. This was unrelated to the left knee disability, which did not affect ambulation, as shown by the fact that the Veteran was able to run despite his left knee symptoms. Thus, a causal relationship was not established. An additional VA opinion was obtained in September 2020. First, the examiner opined that the right knee disorder was less likely than not related to service. By way of rationale, the examiner noted that "cryoglobulinaemic vasculitis, by definition, is an inflammatory vascular condition." It does not affect the joints, including the Veteran's knees. This is established by medical knowledge and standard texts. Rather, the Veteran was diagnosed with right ITB tendinitis in April 1991. This is a lateral, tendinous condition of the knee and does not involve the joint surface. There is no evidence of a chondral lesion on the surface, and no post-service knee complaints until 2006. Thus, the pathophysiology of tendinitis is different and separate from lesions of the articular surfaces, such that it was less likely than not that the Veteran's chondral lesion with chondroplasty had a nexus to service or is related to the vasculitis diagnosis level. In offering this opinion, the examiner reported a "[c]onfidence level 99+%." As to secondary service connection, the September 2020 examiner concluded that it was less likely than not that the Veteran's right knee disorder was due to or incurred by his left knee disability. The condition of one knee does not cause a condition which is contralateral. This is accepted medical knowledge and practice, and is particularly true of osteochondral lesions. Simple gait accommodation would not cause this condition. Thus, a secondary causal relationship was not found. The examiner then held that the above rationale "applies to aggravation as well." The natural history of osteochondral lesions is progression, often requiring directed treatment including surgery. There is no objective evidence to suggest progression beyond the natural course, due to any cause, including a left knee disability. Simple gait accommodation would not be sufficient to do so. Rare exceptions are leg length discrepancy or chronic, exaggerated Trendelenburg gait, which are not apparent here. Therefore, it is less likely than not that the Veteran's right knee disorder was aggravated beyond its natural course due to any cause, including his left knee disability. As noted by the Board in June 2020, the September 2020 opinion utilized an inaccurate definition of aggravation, which means any increase in disability under 38 C.F.R. § 3.310. An addendum opinion was obtained in March 2021 to provide clarity on this point. At that time, the examiner opined that the claimed condition was less likely than not related to the Veteran's left knee disability. Here, the examiner recorded the Veteran's current diagnoses of right knee DJD and status post-chondroplasty with osteobiologic implant. There is a historical diagnosis of ITB syndrome (tendinitis) which appears to have resolved. There are no current records reflecting an active ITB condition and the prior 2015 examination does not note symptoms consistent with such. Rather, the Veteran had ITB syndrome from 1991 through early 1992. There were no further notations, suggesting resolution with appropriate rest and treatment. The Veteran then had a ski accident in June 1996 which worsened through December 1996. An MRI taken in February 1997 was negative for any significant injury. The veteran was noted to have had a biceps femoris injury, without specifics. Given the mechanism of injury, a contusion or strain of the biceps femoris (quad) was the likely diagnosis. This condition was also likely acute and self-limited. The Veteran's separation examination, conducted just two months later, is negative for either condition, and his self-reporting questionnaire denies trick or locked knee. These examinations are notably thorough, such that it was "highly unlikely" a significant, chronic knee condition would have been unreported. Of particular importance, the Veteran reported an onset of his current right knee disorder in May 2006, while running: "This clearly establishes an acute change in the [V]eteran's status." Testing conducted at that time showed an osteochondral defect, suggesting relatively acute degenerative disease due to running. Further, the injuries incurred in service would not cause a defect within the joint of this type. Again, this is established medical knowledge and practice. Thus, a direct nexus was not established. In offering this opinion, the examiner "does not discount lay testimony," but offers findings based on the pathophysiology of all conditions involved. It is unlikely a significant knee condition would have been missed at separation and another decade pass without requiring intervention. Instead, the records reflect a relatively acute onset of symptoms in May 2006, such that a secondary nexus is also not found. Instead, the Veteran's ITB syndrome of the left knee would not impart any significant forces to cause the Veteran's 2006 defect. Further, gait accommodation generally does not cause a condition in another joint not involved in the original injury. Rare exceptions are possible, but not found in this case. The same rationale applies to the question of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013). Further, there is no evidence of aggravation from the Veteran's DJD beyond the natural course. A 2015 MRI shows degenerative changes which are consistent with the natural course of the condition. Once DJD is established, the course often proceeds, requiring medical or surgical interventions. There is no evidence to suggest a course beyond its natural course, such that the Veteran's left knee disability was not found to have caused or aggravated his current right knee DJD. Again, the examiner cited a confidence level of greater than 99 percent. Collectively, the above opinions are highly probative evidence against the claim. Critically, these opinions are derived from thorough evaluations of the Veteran's medical and military histories, including his in-service injuries/diagnoses and the nature and onset of his current disorders; assess all theories of entitlement as presented by the Veteran and the record; and engage analysis of the Veteran's unique circumstances as supported by medical literature and accepted practice. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). There is no indication that the above examiners were not fully aware of the Veteran's past medical history or misstated any relevant fact in formulating the negative nexus opinions. Moreover, the VA examiners possess the requisite expertise to render competent opinions as to complex medical matters, to include the etiology of the Veteran's current right knee disorder. Insofar as the Board previously held that the September 2020 opinion was inadequate for its use of an incorrect legal standard, this flaw does not render the entire evaluation inadequate. Rather, the content of the Veteran's military and medical history remains intact, as does the narrative review regarding the observable relationship between his bilateral knee conditions. Moreover, the examiner's reliance on an improper legal definition was corrected by the March 2021 opinion. Thus, the September 2020 opinion has sufficient probative value with respect to the histories provided, and has been considered herein to that limited extent. The Board has also reviewed the extensive medical treatment records herein, and finds no additional nexus opinions for consideration. Rather, the only positive opinion of record is that implicitly offered by the Veteran. However, he lacks the requisite training and expertise to offer a competent opinion as to complex medical matters, including the etiology of his right knee disorder. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, his lay testimony has been properly considered by both the Board and his VA examiners, but is not sufficiently probative upon which to establish a nexus in this case. Rather, greater probative value is afforded to the competent medical opinions of record, which weigh against the finding of direct or secondary nexuses. In sum, the Veteran demonstrated ITB syndrome and right knee strain during service. These conditions subsequently resolved, such that they were unaffected by an in-service diagnosis of cryoglobulinemic vasculitis and May 2020May2008no right knee condition was noted on separation. Rather, the Veteran first sought treatment for his current right knee disorder in approximately 2006, following a running injury; this condition has persisted since that time. There is no competent evidence to suggest that the Veteran's right knee disorder is caused or aggravated by his left knee disability, to include a related altered gait. Any worsening of the condition is due to its natural development, which has not been contributed to by the left knee disability. The preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is inapplicable, and the appeal seeking service connection for a right knee disorder is hereby denied on direct and secondary bases. In offering this finding, the Board acknowledges the Veteran's prolonged and good faith belief that his right knee disorder warrants an award of service connection; his testimony on this point has been considered by the Board and VA examiners alike. Regrettably, the competent medical evidence weighs heavily against a favorable finding in this case. [CONTINUED ON NEXT PAGE] Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.