Citation Nr: 21039796 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 15-40 511 DATE: July 1, 2021 ORDER Entitlement to service connection for a right knee disability, as secondary to service-connected gouty arthritis of the left ankle, is granted. Entitlement to service connection for a left knee disability, as secondary to service-connected gouty arthritis of the left ankle, is granted. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's current bilateral knee disabilities are secondary to his service-connected gouty arthritis of the left ankle. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from April 1954 to January 1956 and from April 1956 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran presented testimony before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issues were previously before the Board in June 2018 and July 2020 when they were remanded for additional development. They now return for further appellate review. 1. Entitlement to service connection for a right knee disability, as secondary to service-connected gouty arthritis of the left ankle. 2. Entitlement to service connection for a left knee disability, as secondary to service-connected gouty arthritis of the left ankle. The Veteran is seeking entitlement to service connection for a bilateral knee disability on the basis that it was due secondary to his service-connected gouty arthritis of the left ankle. During his May 2018 Board hearing, the Veteran testified that he has experienced knee pain at the same time as his left ankle pain ever since service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Secondary service connection may be granted 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). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In April 2014, the Veteran was seen by his VA orthopedist. It was noted the Veteran had end state degenerative joint disease of the left knee which began bothering him about four years before and since then, he had developed pain in his right knee and right hip. The Veteran related an injury to the left ankle while in service, the ankle injury bothered him over the years, altered his gait, and he felt this adversely affected his knees. The physician noted the Veteran had left knee pain as early as 2001 and right knee in 2008 with CT scan showing a cystic lesion in dome of the left talus suggesting post traumatic in origin. The physician stated "[i]n my opinion, baseed (sic) on the record, the [Veteran's] osteoarthritic changes in left and right knees, more likely than not, are secondarily related to his left ankle injury." In contrast, a January 2014 VA examiner provided an opinion that "[t]he condition claimed is less likely than not (less than 50 % probability) proximately due to or the result of the Veteran's service-connected condition." In support of this opinion, the examiner noted that the Veteran had advanced osteoarthritis of both knees. The knee symptoms have gotten worse over the last four yearsa time when his gouty arthritis had been quiet. This makes it seem less likely that the gouty arthritis of the ankle could be so severe as to cause him to develop advanced osteoarthritis of the knees. It would also be unlikely that if his left ankle was causing arthritis it would affect only the left knee instead of both knees as it now the situation. In February 2018, another VA examiner indicated that she reviewed the conflicting medical evidence and added that review of radiology reports shows that the Veteran's degenerative joint disease is widespread, including the neck, spine, wrist, and feet, which indicated a diffuse condition and not a focal one. In January 2019, another VA examiner provided an opinion that the Veteran's bilateral knee condition is less likely than not proximately due to or the result of left ankle gouty arthritis. In an April 2020 addendum, the same examiner also opined that it is less likely than not that the Veteran's current bilateral knee disability had onset during active service or is otherwise related to service. In support of these opinions, the examiner stated that the Veteran's end stage degenerative joint disease of the left knee began bothering him about four years before and he also developed pain of lesser degree in his right knee since that time. The examiner added that there is no documented evidence of continuity of symptoms of ankle and knees for more than a decade from retirement from service. Unfortunately, it appears that the VA examiners did not consider the Veteran's full medical history. In fact, the record shows that the Veteran had acute gouty arthritis of the left knee and left toe in September 1978 and a January 1983 treatment record notes gout history symptom in the right knee. Additionally, a July 1994 VA treatment record shows an assessment of degenerative arthritis of the right knee. Thus, after finding that the VA examiners' medical opinions were inadequate, the Board last remanded the claims in July 2020 for an addendum opinion. In November 2020, another VA examiner once again reviewed the entire claims file, examined the Veteran, and stated that "[t]he provider is unable to opine with the provided medical records from the VA secondary to numerous conflicting evidences from pervious examinations, and from various MD's weighing their opinion on the subject matter/claim." Significantly, however, this examiner pointed that there are numerous factors pertaining to the Veteran's bilateral knee condition that could greatly affect the progression of the disease process, which included right toe gout (diagnosed in April and May 1974 while the Veteran was in service), as well as gouty arthritis in the left knee, a history of gout symptoms in the right knee dated in September 1978 and January 1983, and a March 1983 statement indicting that the Veteran was treated for gout on two occasions in 1975. While the examiner acknowledged that the Veteran's bilateral knee condition could have been caused by natural wear and tear of his knee joints with advancing age and his obesity as early as 1996 to 2014, in the end, the examiner concluded that the Veteran's bilateral knee condition is due to various medical conditions through the years and could have been a combination of factors that led to the development of degenerative changes. The examiner therefore indicated that the claimed condition is at least as likely as not (50 percent or greater probability) due to or the result of the Veteran's service-connected condition; and that the claimed condition is less likely than not (less than 50 percent probability) due to or the result of the Veteran's service-connected condition. In summary, the April 2014 opinion from the Veteran VA orthopedist provided a favorable nexus opinion by saying that the Veteran's osteoarthritic changes in left and right knees, more likely than not, are secondarily related to his left ankle injury. In contrast, the VA examiners concluded that the Veteran's bilateral knee condition was not secondary to his left ankle disability. While the Veteran has other risk factors for degenerative joint disease of the knees, such as advancing age and history of obesity, none of these factors were present prior to 1996, and the November 2020 VA examiner was unable to provide definitive causation for the Veteran's bilateral knee disabilities because there was no definitive evidence either way as to whether the bilateral knee condition is related to his service-connected gouty arthritis of the left ankle. While the evidence contains conflicting opinions as to the etiology of the Veteran's bilateral knee condition, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral knee disabilities are proximately due to, or the result of, the Veteran's service-connected gouty arthritis of the left ankle. In cases such as these, the benefit-of-the-doubt rule, codified at 38 U.S.C. § 5107, provides that VA shall consider all information and lay and medical evidence, and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. The implementing regulation at 38 C.F.R. § 3.102 restates the provision in terms of "reasonable doubt." Evidence is in "approximate balance" when the evidence in favor or and opposing the veteran's claim is found to be almost exactly or nearly equal. The statutory benefit of the doubt rule applies when the factfinder determines that the positive and negative evidence relating to a veteran's claim are "nearly equal," thus rendering any determination on the merits "too close to call." Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The evidence favoring and against the claims is in approximate balance and therefore the claim will be granted. The present decision is based on the record in this appeal and carries no precedential weight as to any other pending cases. C.F.R. § 20.1303. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.