Citation Nr: 21030718 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 02-17 656 DATE: May 19, 2021 ORDER Entitlement to a right knee disability, as secondary to service-connected healed left fibular fracture, is granted. REMANDED Entitlement to an initial disability evaluation in excess of 10 percent for left knee instability is remanded. Entitlement to an initial disability evaluation in excess of 10 percent for degenerative arthritis of the left knee with patellofemoral pain syndrome, from August 20, 2001, is remanded. FINDING OF FACT The evidence of record is at least in equipoise as to whether the Veteran's right knee disability is related to his service-connected residuals of a left ankle disability. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for service connection for a right knee disability as secondary to service-connected residuals of a left ankle disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1980 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) in San Juan, Puerto Rico. In December 2003, the Board denied entitlement to service connection for bilateral knee and lumbar spine disabilities. In October 2006, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision and remanded the matters for further evidentiary development. The Veteran has since been awarded service connection for left knee and lumbar spine disabilities. However, the issue of entitlement to service connection for a right knee disability remains pending, and will be adjudicated favorably below. Insofar as the Veteran's attorney has requested a 90-day extension of time from the date of the Board's March 26, 2021 letter re-docketing this right knee disability appeal, the request is denied given the award of the benefit sought herein. As noted by the Board in a January 2020 decision, the Veteran has perfected appeals as to the initial ratings assigned to his service-connected left knee disabilities; however, at the time of that January 2020 decision, such issues were not yet certified to the Board. The AOJ has subsequently certified the issues to the Board, and they will be discussed in the Remand section below. Service Connection In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection may be established by a showing that a nonservice-connected disability is caused or aggravated (chronically worsened) by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Entitlement to a right knee disability, as secondary to service-connected healed left fibular fracture, is granted. The Veteran contends that his current right knee disability had onset in, or is otherwise related to service, or in the alternative, was caused by his service-connected left ankle disability based on altered gait and weight-bearing. As will be discussed below, the can grant the appeal based on the latter theory of entitlement. There is no dispute that the Veteran has a current right knee disability, which has been diagnosed as right knee patellofemoral syndrome and degenerative arthritis. He is in receipt of service connection for residuals of a left ankle fracture throughout the period on appeal. The key question in this case is whether it is at least as likely as not that the Veteran's right knee disability was due to his service-connected left ankle disability. The Board has attempted to obtain medical opinions on several occasions addressing this potential relationship, and regrettably, nearly all opinions have been deemed inadequate, or incomplete. While the Board is not satisfied with the medical opinion evidence on file, the Board finds that, at this juncture, further development on this matter would be an exercise in futility. Indeed, in July 2016, the Board granted entitlement to service connection for a left knee disability, as secondary to his left ankle disability, relying on a July 2001 private medical opinion diagnosing him with "left tibio fibular joint dysfunction at knee level" which "developed as a consequence of his primary ankle injury." In this decision, the Board noted that the examiner reported that "residual limitation at ankle joint has progressively affected the relation between tibio-fibular head at knee level," producing "pain, discomfort in lateral leg and limitation of activities." In this decision, the Board also cited to a May 2016 VA examination report, in which the examiner noted "crepitus over the lateral joint area to flexion and extension" and that the Veteran "has history of left ankle surgery and has pes pronation which may be secondarily producing lateral knee pain from overstress." In its July 2016 decision, the Board reasoned that although the May 2016 examiner provided little in the way of explanation and did not explicitly find that the Veteran's left knee disability was linked to his left ankle condition, her conclusion was consistent with the prior private examiner's finding that the Veteran's left knee symptoms "developed as a consequence of his primary ankle injury." In its July 2016 decision, the Board remanded the Veteran's right knee claim for additional development due to the May 2016 examiner's opinion that his right knee degenerative arthritis with patellofemoral pain syndrome was more likely attributable to the aging process because the Veteran's "gait is normal in the medical evaluations done." Nevertheless, the Board also cited to a May 2015 orthopedic note which appeared to refute the examiner's opinion and provided what amounts to a favorable opinion in support of the Veteran's assertions. Specifically, the resident orthopedic surgeon stated: "He continues with ankle pain on ambulation. Due to change in gait he is now experiencing knee pain bilaterally. Ankle pain continues regardless of physical therapy." The resident orthopedic surgeon's note was then endorsed by his supervising orthopedic surgery physician. Taken together the medical evidence from February 2001 and May 2015 paint the picture that the Veteran developed knee problems due to gait changes caused by altered biomechanics in his left ankle, first in his left knee, and later in his right knee. The Board notes that VA is not permitted to completely ignore even an 'inadequate' opinion or examination, whether it is in favor or against a veteran's claim. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). In an effort to clarify whether the Veteran's current right knee disability was caused by his ankle disability-related gait changes, or was simply age-related, the Board ordered new medical assessments and opinions in subsequent remands, but such opinions do not adequately address the Veteran's previously documented gait problems, or his lay assertions that his gait problems caused strain on his knee joint. Indeed, as noted above, the prior May 2016 right knee negative nexus opinion was premised on a finding by the examiner that the Veteran's "gait is normal in the medical evaluations done"; however, a February 2011 C&P Joints Exam clearly indicated that the Veteran walked with an antalgic gait, noting "he has to use an I-point cane and left ankle brace to correct his gait while walking." This evidence was again referred to in a March 2017 Medical Opinion and a July 2018 C&P Examination. The Veteran, himself, has stated that his ankle impacted his mobility. See, e.g., December 2015 Correspondence from Veteran. His spouse has stated that she has observed her husband walk with a limp. See December 2015 Lay Statement from Veteran's Spouse. Both the Veteran and his spouse are competent and credible in their reports. The Board notes that the addendum opinion procured in March 2017, again, relied on a seemingly incorrect factual premise, stating that the Veteran's right knee changes were mild and the Veteran used no braces or assistive devices besides a left ankle brace, when the evidence above describes a prior need for use of an I-point cane. A subsequent opinion obtained in 2018 was against a relationship, noting that because the arthritis changes in both knees were more or less the same, such would not be indicative of disease due to a shift of weight to the right leg. It is unclear whether this examiner was aware that the VA had already attributed his left knee disability to his ankle disability based on the evidence described above. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current right knee disability is proximately due to his service-connected residuals of a left ankle disability, given the Veteran's longstanding observations and complaints of gait-related pain in his right knee, the observations of his wife, the medical assessments of record linking the left ankle's disabling effects to bilateral knee conditions, and the inadequacies in the negative nexus opinions on file. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a right knee disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to an initial disability evaluation in excess of 10 percent for left knee instability is remanded. Entitlement to an initial disability evaluation in excess of 10 percent for degenerative arthritis of the left knee with patellofemoral pain syndrome is remanded. In a September 2016 rating decision, the AOJ implemented the Board's award of service connection for a left knee disability, and assigned two separate initial disability ratings: 10 percent for degenerative arthritis with patellofemoral pain syndrome, and 10 percent for left knee instability, both effective August 20, 2001. The Veteran timely disagreed with this initial ratings, and the AOJ issued a statement of the case (SOC) in October 2017, but a copy of the SOC was returned to VA as undeliverable. There is no indication the adjudication was re-sent to the Veteran or his attorney. In a March 2019 letter, the AOJ informed the Veteran's attorney that the October 2017 SOC was returned to VA by the Postal Service, and a new copy was mailed. The Veteran's attorney promptly filed a VA Form 9, which the AOJ appears to have accepted as timely, as the appeal was certified to the Board in July 2020. See a July 30, 2020 letter from the AOJ, noting the appeal being certified stemmed from a July 27, 2017 NOD, and an April 8, 2019 VA Form 9). Accordingly, the Board has jurisdiction over these issues. After the last adjudication of the Veteran's appeal in the October 2017 SOC, but before certification of the appeal in July 2020, relevant VA treatment records were associated with the Veteran's file which may suggest the Veteran's left knee disability worsened in severity. See September 2018 Primary Care Follow Up Note, ("LEFT KNEE PAIN - worsening knee pain and crepitus with MRI showing Medial femorotibial patellofemoral tracking abnormalities/or patellofemoral friction syndrome"). The Veteran's attorney also contended that the Veteran's knee conditions have worsened in severity, especially during flare-ups. See April 2019 VA Form 9, Appeal to the Board. Updated VA-contract examinations have also been added to the record, to include a July 24, 2020 examination report that pre-dated certification of the Veteran's appeal. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that pertinent evidence will be first reviewed at the AOJ so as to not deprive the claimant of an opportunity to prevail with a claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives evidence prior to certification and transfer of the case to the Board that is relevant to a claim or claims properly before it that is not duplicative of evidence already discussed in the Statement of the Case or Supplemental Statement of the Case, it must prepare a Supplemental Statement of the Case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). Because relevant evidence was added to the record before the case was transferred to the Board, the Veteran's appeals for higher initial left knee ratings must be remanded for consideration of such evidence in by the AOJ in the first instance. The matters are REMANDED for the following action: After complete review of the record, and after performing any additional development deemed necessary, readjudicate the issues of (1) entitlement to an initial disability evaluation in excess of 10 percent for left knee instability; and (2) entitlement to an initial disability evaluation in excess of 10 percent for degenerative arthritis of the left knee with patellofemoral pain syndrome. If the benefits sought are denied, in whole or in part, send the Veteran and his attorney a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hennessy, 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.