Citation Nr: 21030517 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-25 877 DATE: May 19, 2021 ORDER Entitlement to service connection for degenerative arthritis of the right knee is granted. REMANDED Issue of entitlement to service connection for a right hip disability, claimed as secondary to degenerative arthritis of the right knee is remanded. FINDING OF FACT The evidence is in at least relative equipoise as to whether the Veteran's right knee degenerative arthritis is a chronic disease that manifested during service with continuing symptoms since. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative arthritis of the right knee have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1970 to March 1972. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2013 rating decision issued by the Department of Veterans Affairs (VA). See September 2013 Notice of Disagreement (NOD); June 2015 Statement of the Case (SOC); July 2015 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in a February 2018 hearing. See February 2018 Hearing transcript. In July 2018, the Board granted the Veteran's request to reopen his claim of entitlement to service connection and remand the underlying claim of entitlement to service connection for further development of the evidence. July 2018 Board decision. The Board also remanded the Veteran's claim of entitlement to service connection for a right hip disability for further development. Id. In October 2019, the Board denied the claims. October 2019 Board decision. The Veteran appealed the October 2019 Board decision to the Court of Appeals for Veterans Claims (CAVC) and, through a Joint Motion for Remand, CAVC remanded the claims back to the Board for further development and reasons and basis for its decision. December 2020 CAVC decision. Entitlement to service connection for a right knee disability. The Veteran asserts entitlement to service connection for a right knee disability due to a 1970 in-service injury in which he fell on his knee during a training obstacle course. June 2015 Correspondence; February 2018 Hearing transcript. The Veteran relates that his right knee would swell or stiffen since then. June 2015 Correspondence; February 2018 Hearing transcript. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1112, 1133; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Certain chronic diseases, such as arthritis, which are manifested to a compensable degree within one year of discharge from active duty, shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. See 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, if a chronic disease listed at 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) is noted during service or the presumptive period, but not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, the Board finds that the evidence supports finding the Veteran's right knee disability as a chronic disease that manifested within a year of discharge from active duty. The evidence show that the Veteran has a current right knee disability, diagnosed as right knee arthritis and status post arthroscopy for articular cartilage tear. See August 2019 VA examination for knee and lower leg conditions. The Veteran's statements about injuring his right knee during service is consistent with the type and place of his service and his service treatment records. See March 1972 DD Form 214; October 1970 Service treatment record. Medical treatment records since separation shows that the Veteran was seen for history of a knee injury in June 1980. See June 1980 VA treatment evidence. X rays of his knees at that time showed minimal hypertrophic spurring in his knees and diagnosis for minimal degenerative changes. Id. The Veteran reported having knee "slipping," joint pain, and a history of injuring his knee during basic training with no recent trauma. July 1980 VA treatment evidence. The next evidence of treatment for a knee condition is in September 1998, when the Veteran reported right knee swelling and discomfort over the last eight days. September 1998 Private treatment evidence. The Veteran reported that he last injured his knee at work a year ago and the x-ray evidence indicates normal findings, but his treatment provider found evidence of early arthritic changes. September 1998 private treatment evidence. A month later, the Veteran was seen again for knee swelling and locking, but due to twisting his knee at work. October 1998 Private treatment evidence. An MRI then showed degenerative joint disease and a torn meniscus versus flap tear of the articular cartilage. Id. While the medical treatment evidence shows the Veteran injured his right knee in 1997 and 1998, the evidence also supports that the Veteran had at least some arthritic changes in his knee in 1980, almost 20 years prior to any knee injury after separation. The Board finds this evidence probative and that it supports a continuity of symptomatology for his right knee disability since service. The Board considered the Veteran's lay statements about having right knee swelling and stiffness since his in-service knee injury. June 2015 Correspondence; February 2018 Hearing transcript. While the Veteran is not competent to opine on the cause of his knee symptoms, he can report experiencing knee swelling and stiffness. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the Veteran made similar statements about a right knee injury and symptoms in his 1980 claim for service connection. See January 1981 Hearing testimony. The Board finds the Veteran's statements about his knee symptoms and its onset to be probative. The Board recognizes that the August 2019 VA examiner opined that the Veteran's right knee disability is less likely than not due to his in-service injury. August 2019 VA examination medical opinion. The VA examiner noted that the Veteran's medical examination during separation was normal, and the Veteran reported being in good health. Id. The VA examiner opined that this evidence supports finding the Veteran's in-service knee injury to be an acute injury that resolved. Id. However, the Veteran explained that he felt encouraged not to complain about his knee pain during service. See February 2016 VA Form 21 4138. And while the medical treatment evidence supports that the Veteran's cartilage tear is related to a 1998 work injury, the VA examiner does not explain why the degenerative changes shown by June 1980 knee x-ray would support his arthritis is due to age and genetics rather than his in-service injury. See August 2019 VA examination medical opinion. The VA examiner is a medical professional qualified to evaluate the Veteran's knee disability, and the Veteran's report of being in good health at separation also raises a reasonable doubt as to whether his right knee disability is due to service. In resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's current right knee disability, diagnosed as arthritis, manifested as chronic within a year of discharge from active duty with continuing symptoms since then. Accordingly, entitlement to service connection for a right knee disability is warranted. REASONS FOR REMAND Issue of entitlement to service connection for a right hip disability, claimed as secondary to a right knee disability is remanded. The December 2020 CAVC decision found the August 2019 VA examiner's opinion for the Veteran's right hip to be inadequate because it fails to discuss the Veteran's full medical history, including his 2014 treatment notes indicating less than normal muscle strength in his right hip. The CAVC decision also found the VA examiner's opinion that the Veteran's right hip disability is less likely than not proximately due to or the result of his right knee disability to be insufficient. The August 2019 VA examiner stated that he knew of no credible peer-reviewed medical literature that supports knee joint pathology having a direct effect on hip degenerative joint disease, but CAVC found it is unclear if this is due to the VA examiner's own lack of knowledge of medical literature or if there is a lack of credible peer-reviewed medical literature in the medical community. Id. CAVC also found that there was insufficient rationale as to why age and genetics is considered the more likely cause. See id. The Board, thus, finds that a remand is required. The matters are REMANDED for the following action: 1. If possible, obtain an addendum opinion from the same medical professional who provided the August 2019 VA examination for hip and thigh conditions. Otherwise, obtain an opinion from an appropriate medical professional to determine the nature and cause of the Veteran's current right hip disability. If the medical professional determine that it is necessary, schedule the Veteran for a VA examination. The medical professional should respond to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's current right hip disability began in (or is otherwise related to) the Veteran's military service? The examiner should consider the Veteran's lay statement that when he injured his knee in service, he rolled onto his right hip and later aggravated his condition by going up and down a track for his gunner duties. The examiner should also specifically consider and discuss the June 2014 and May 2014 VA treatment records showing less than normal muscle testing in the right hip. (b) The examiner should also provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current right hip disability is proximately due to or the result of his service connected right knee disability. If his right hip disability is found not proximately due to or the result of his right knee disability , the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current right hip is aggravated (any increase in severity) by his right knee disability. The examiner should consider and discuss the Veteran's lay testimony and assertions regarding any pertinent complaints and symptoms, including his assertion that his right knee disability causes him to walk awkwardly, which resulted in his right hip disability. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.