Citation Nr: 21030896 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-31 566 DATE: May 19, 2021 ORDER Entitlement to service connection for left knee chondromalacia, to include as secondary to the service-connected disability of residuals, fracture, left talus, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his left knee condition is proximately due to his service-connected lower extremity conditions. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee condition, to include as secondary to service-connected lower extremity conditions have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to February 1972. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Houston, Texas. In August 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In June 2019, the Board remanded the appeal for further development. In November 2020, the Board remanded the appeal for further development. Although the appeal also originally included the issues of service connection for hallux limitus, plantar fibroma, right foot (now claimed as bilateral foot condition) and bilateral hip conditions, as secondary to the service-connected disability of residuals, fracture, left talus, these benefits were granted by rating decision in April 2020. These claims are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Additionally, the issue of service connection for cervical spine condition, as secondary to the service-connected disability of residuals, fracture, left talus, and numbness of the left foot was denied in a November 2020 Board decision. 1. Entitlement to service connection for a left knee condition, claimed as left knee chondromalacia. The Veteran appeals the denial of service connection for a right knee condition. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused by or aggravated by a service-connected disability. Id.; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran's service treatment records indicate that he was evaluated for possible left knee lateral meniscus tear in July 1968, prior to service. The Veteran reported a history of chondromalacia bilaterally in February 1969. The Veteran was also evaluated for left knee pain in April 1970. In an August 2018 Board hearing, the Veteran testified that he has developed pain and other symptoms in the knees, cervical spine, and feet, and that these conditions have occurred and worsened since his in-service injury which resulted in residuals, of a left talus fracture. In a March 2003 Podiatry note, the podiatrist stated "the lack of rotatory motion also is lost, and this motion must be made up in knee, hip, and lower spine joints. I feel his foot condition is contributing to the knee, hip, and lower back pain this veteran is experiencing." In a December 2019 VA examination, the Veteran reported chronic pain since service. The Veteran was afforded a VA examination in January 2021. The examiner noted that the Veteran "demonstrated an altered gait favoring his right side, as to alleviate pain from a prior left ankle talus fracture. Service member's left knee condition at that time was mild in severity considering his age and likely due to this and not secondary associated to any ankle, knee, radiculopathy or hip condition." While the VA examiner addressed whether the Veteran's left knee condition was caused by service-connected lower extremity disabilities, he did not address secondary service connection based on aggravation. Therefore, the Board finds that the January 2020 VA examination has limited probative value as the examiner did not opine as to whether the Veteran's left knee condition was aggravated by his service-connected lower extremity conditions. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (Where an examiner finds that a service-connected disability did not cause a claimed disorder, it is not clear that aggravation has been addressed.). Additionally, the examiner relied on an inaccurate factual basis in finding that the Veteran did not have any knee conditions prior to service. The VA examiner provided an addendum opinion in February 2021. The examiner noted that he has considered "VAMC treatment reports and examinations which show orthopedic disabilities contributing to the left knee disability, into account." Despite this evidence, the VA examiner opined that there was insufficient evidence to opine on whether the Veteran's left knee condition was aggravated by his service-connected disabilities. The Board finds competent evidence to showing aggravation the March 2003 podiatrist statement that the "the lack of rotatory motion also is lost, and this motion must be made up in knee, hip, and lower spine joints. I feel his foot condition is contributing to the knee, hip, and lower back pain this veteran is experiencing" but the extent of aggravation is not shown by this opinion. On the other hand, the addendum opinion found "insufficient evidence" to determine any extent of aggravation. The reasonable doubt doctrine dictates that all symptoms be deemed proximately due to service-connected disability. Mittlieder v. West, 11 Vet. App. 181 (1998). The Veteran also submitted lay statements regarding the symptomatology of his left knee condition. The Board find his lay statements are competent and credible as they are based upon readily observable symptoms. 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (Lay evidence is competent to establish features or symptoms of injury or illness). (continued on the next page) In light of the credible lay statements, coupled with the VAMC treatment reports and examinations which show orthopedic disabilities contributing to the left knee disability, the Board finds that the evidence for and against the claim is at least in equipoise. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. As reasonable doubt has been resolved in the Veteran's favor, entitlement to service connection for a left knee condition is warranted. 38 U.S.C. § 5107(b). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor 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.