Citation Nr: 21030157 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-38 927 DATE: May 18, 2021 ORDER Entitlement to service connection for left knee degenerative joint disease and patellofemoral pain syndrome (left knee disability) is granted. Entitlement to service connection for right knee degenerative joint disease and patellofemoral pain syndrome (right knee disability) is granted. FINDING OF FACT It is just as likely as not the Veteran's left and right knee disabilities are proximately due to, the result of, or aggravated by his service-connected pes planus (flat feet). CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for degenerative joint disease (i.e., arthritis) and patellofemoral pain syndrome of the left and right knees secondary to the service-connected pes planus. 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 October 1986 to October 1989. In June 2019, the Board denied these claims, and in response the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In an April 2020 Order, the Court vacated the Board's decision denying these claims and remanded them back to the Board for further development and readjudication pursuant to agreement in a Joint Motion for Remand (JMR). In October 2020, in furtherance of this, the Board, in turn, remanded these claims back to the local Regional Office (Agency of Original Jurisdiction (AOJ)) including especially to obtain any outstanding private and/or VA treatment records relevant to these claims and then for a medical opinion concerning the likelihood the Veteran's left and right knee disabilities onset during his service or are otherwise related or attributable to his service, particularly caused or aggravated by his already determined to be service-connected pes planus. The Veteran since has submitted additional evidence and, based on this new evidence (a supporting medical opinion), the Board is now granting the claims. The Veteran is in receipt of service connection for bilateral pes planus (flat feet), evaluated as 30-percent disabling effectively since August 21, 2007. The primary basis of his claim is that his bilateral (left and right) knee disability is secondary to his bilateral pes planus. According to 38 C.F.R. § 3.310, service connection may be granted on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disability although in the latter instance compensation is limited to the degree of disability specifically owing to the aggravation. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). A May 2008 private record reflects that the Veteran complained of weakness in his right knee and pain in his left knee; he was examined for a left hamstring pull. A December 2009 radiology report concerning the Veteran's feet shows he had "mild" bilateral pes planus. He was noted to have "minimal" pronation, bilaterally. Clinical records indicate the Veteran has been issued over-the-counter arch supports for his flat feet (see February 2011 VA record). A September 2011 private record notes the Veteran reported bilateral knee pain that had been off and on, so intermittent, for months. A November 2011 VA record shows he had complaints of pain in his feet and knees. In December 2011, he was seen for foot impressions (apparently for orthotics) and, in January 2012, he received custom inserts for his flat feet from VA. A March 2012 Magnetic Resonance Inspection (MRI) imaging study revealed right knee patellofemoral arthropathy and left knee osteochondral injury. In June 2012, while undergoing physical therapy for his knees, the Veteran received a diagnosis of retro-patellar pain symptoms but was determined to have full range-of-motion capabilities. In September 2012, the Veteran's private physician (Dr. J.Z.) opined that the Veteran's bilateral knee degenerative arthritis was more likely than not the result of his pes planus. However, Dr. J.Z. did not provide any rationale for this opinion, so it lacks significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). A January 2014 Disability Benefits Questionnaire (DBQ) explains that X-ray confirmed degenerative or traumatic arthritis of both knees with medial and anterior joint space narrowing, mild osteophyte formation and tibial spine hypertrophy. It was the opinion of the examiner that the demonstrated knee disabilities including the patellofemoral syndrome and degenerative joint disease, were less likely than not caused by, related to, or aggravated beyond their normal progression by the Veteran's service or his service-connected pes planus. The examiner summarized the history of the Veteran's symptoms and treatment and explained that his bilateral knee problems were more likely related instead to chronic obesity and his employment as a postal clerk that required him to stand all day, placing the bulk of his weight on his knees. An October 2014 DBQ indicates the Veteran reported wearing insoles, which help at times. It was noted that he has pain on use, pain accentuated on use, pain on manipulation, pain accentuated on manipulation, and decreased longitudinal arch height. He did not have extreme tenderness of the plantar surfaces, did not have marked deformity, did not have marked pronation, and did not have a weight bearing line that fell over or medial to his great toe. A March 2016 DBQ indicates the Veteran had pain on use of his feet, pain on manipulation of his feet, pain accentuated on manipulation, extreme tenderness of the plantar surfaces, decreased longitudinal arch height, objective evidence of marked deformity, marked pronation, and that, as concerning his left foot, the weight-bearing line falls over or medial to his great toe. He used orthotics on a regular basis. A prescription sheet from Dr. J.Z. received by VA in May 2016 contains a statement that the Veteran "has severe flat feet and will not get better. Permanent disability." As already alluded to, the Board remanded these claims back to the RO (AOJ) in October 2020 for further development and consideration including for more medical comment concerning the origins of the Veteran's left and right knee disabilities, especially in terms of whether related or attributable to his service, including caused or aggravated by his service-connected bilateral pes planus. A November 2020 private record from Dr. J.S. states "flat feet certainly could be a cause of knee pain whether this is the origin of his arthritis is hard for me to know." This statement is too speculative in nature to be probative. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). However, there also is other medical evidence in the file addressing this determinative issue of causation or aggravation. Namely, December 2020 correspondence from Physician's Assistant L.B. recounts the Veteran reporting over pronating his feet, which has led to alteration of his natural gait. She added that it is well documented in medical literature that changes to an individual's natural gait will precipitate pain and dysfunction in the lower extremities. But the Veteran's gait has been described as mild left antalgic (June 2012), bilateral antalgic (July 2012), and normal/without antalgic (January 2013, October 2013, and January 2017). L.B. also stated, and cited to studies supporting, that foot symptoms have been found to increase the risk of developing knee conditions, such as patellofemoral and osteoarthritis, over time. With regard to the Veteran's obesity, she surmised that his reported inability to partake in daily physical activity secondary to his chronic foot pain was the driving force behind his weight gain and remains the primary causation of his increased body mass. However, the Veteran has stated that his knee pain has been constant even when he has been at his lowest weight. A finding that the Veteran's service-connected disability caused him to gain weight or become obese is not sufficient upon which to find that a related disability warrants service connection. Rather, it also must be determined whether the weight gain or obesity resulting from the service-connected disability was a substantial factor in causing his knee disabilities and, if so, whether his knee disabilities would not have occurred but for weight gain or obesity "caused" by the service-connected disability. Obesity may qualify as an "intermediate step" between a service-connected disability and another current disability. See VAOPGCPREC 1-2017 (Jan. 6, 2017); see also Garner v. Tran, U.S. App. Vet. Claims Lexis 81 (2021) and Walsh v. Wilkie, 32 Vet. App. 300 (2020). Although the pain in the Veteran's feet can reasonably interfere with his desire to walk or run, the record on appeal shows he walked three miles a day for exercise (see August 2013). Moreover, the evidence does not support the notion that his knee disabilities would not have occurred but for his weight gain or obesity. One of the articles cited by L.B. found that people with foot/ankle symptoms are at an increased risk of developing knee osteoarthritis compared to those without foot ankle/symptoms, although it was unclear as to whether the foot/ankle symptoms directly caused the knee symptoms. In a January 2021 DBQ, the examiner found it less likely than not the Veteran has a current knee disability causally related to, or aggravated by, his pes planus because, in the examiner's opinion, the Veteran's pes planus was too mild to be associated with knee pain. The examiner did concede, however, that studies have shown that moderate and severe pes planus have been associated with nearly double the rate of anterior knee pain. That notwithstanding, this examiner found it more likely than not the Veteran's knee disabilities are from his civilian employment that required him to stand for long hours. Thus, critical to deciding this appeal is whether the Veteran's bilateral pes planus is mild, moderate, severe or even pronounced. See 38 C.F.R. § 4.71A, Diagnostic Code (DC) 5276. There is conflicting evidence on this important issue. As discussed, a December 2009 radiology report revealed only mild pes planus and minimal pronation. However, the Veteran was issued arch supports in 2011 and custom-fitted supports in 2012. In October 2014, he was noted to have pain on use, pain accentuated on use, pain on manipulation, pain accentuated on manipulation, and decreased longitudinal arch height. In March 2016, he was noted to have pain on use of his feet, pain on manipulation of his feet, pain accentuated on manipulation, extreme tenderness of the plantar surfaces, decreased longitudinal arch height, objective evidence of marked deformity, marked pronation, and that, as concerning his left foot especially, the weight-bearing line falls over or medial to the great toe. In May 2016, he was noted to have severe flat feet. The record on appeal resultantly traces worsening symptoms since 2009 or thereabouts. In addition, he has had a 30 percent rating for his bilateral pes planus effectively since August 21, 2007, and, according to DC 5276, this rating accepts that his bilateral pes planus is "severe". Given this concession by the very level of rating for this service-connected disability according to DC 5276, the increase in symptoms, the level of complaints, and the onset of knee pain, and when resolving all reasonable doubt in the Veteran's favor, the Board finds that his left and right knee disabilities are as likely as not caused or aggravated by his service-connected bilateral pes planus. And, in this circumstance, the claims are granted rather than denied See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.