Citation Nr: 21041021 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 12-09 592 DATE: July 7, 2021 ORDER Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a left knee disability is granted. FINDING OF FACT The evidence shows that the Veteran's left and right knee disabilities are causally related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee degenerative arthritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left knee degenerative arthritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from January 1969 to December 1971 and from March 2003 to June 2003, with additional periods of active duty for training (ADT) and inactive duty to training (IDT). This appeal has a long procedural history. First, the Board of Veterans' Appeals (Board) remanded the issues in October 2014 for a VA examination and to determine the Veteran's Federal service. The claims were remanded again in April 2017 and the Board clarification as to whether the Veteran had any periods of IDT in July 1991 when he was diagnosed with left knee chondromalacia, or between July 1993 and October 1993 when he was diagnosed with bilateral knee patellofemoral syndrome and early DJD. The Board also requested an expert medical opinion from the Veterans Health Administration (VHA). The opinion obtained in response to the 2018 VHA request was deemed inadequate, as it does not contain sufficient rationale for the expert's conclusions and the correct standards were not used. Therefore, the claims were again remanded in May 2020 for updated VA records and to request an addendum medical opinion to determine the current diagnoses the bilateral knee disabilities and provide a medical opinion. Although the Board finds that clarification as to the Veteran's periods of ACUDTRA and INACDUTRA were not completely done, and the VA examiner's opinion was not fully adequate for substantial compliance with the three prior remand directives, the decision is wholly favorable to the Veteran. Stegall v. West, 11 Vet. App. 268, 271 (1998). Other than as noted above, the Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Here, the Veteran asserts he is entitled to service connection for his bilateral knee disabilities which began during his over 40 years in service and the Reserves. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 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). "Active military, naval, and air service" includes active duty, any period of active duty for training during which the Veteran was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the Veteran was disabled or died from an injury incurred or aggravated in the line of duty. See 38 C.F.R. § 3.6(a). "Active duty" is defined as: (1) full-time duty in the Armed Forces, other than active duty for training; (2) active duty for training (e.g., the approximately two weeks per year of training conducted by Reservists and National Guard members); (3) full-time duty performed by Reservists for training purposes (e.g., when some Reservists sign on for extended periods of service); (4) full-time duty performed by National Guard members of any state; and (5) inactive duty training (e.g., the regular monthly weekend drills conducted by Reservists and National Guard members). See 38 C.F.R. § 3.6. The Board concludes that the Veteran has current disabilities of the knees that as likely as not began in and is due to service. See 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). First, the 2018 X-ray findings revealed moderate degenerative joint disease. The 2017 and 2020 VA examiners also stated that the Veteran has a current disability of bilateral patellofemoral syndrome. Thus, the question becomes whether the current disabilities are related to service. On this question there is evidence in favor of and against the claims. The evidence against the claim includes 2015, 2017, and 2020 VA medical opinions. The March 2015 examiner opined that the Veteran did not have a current diagnosis, stating there was "no objective evidence of chronic condition" and that the Veteran had subjective symptoms. The 2015 examiner opined that the Veteran's knee conditions are less likely than not incurred in or caused by his military service or were aggravated by his service. As rationale, the examiner stated that there was no objective evidence of a chronic condition and that "temporary aggravation is plausible, but there is no evidence of permanent aggravation of the claimed pre-existing condition. The current medical literature does not support." However, the Board notes that the examiner did not consider the Veteran's four decades of service, nor were the Veteran's lay statements regarding in-service bilateral knee pain addressed. Additionally, the examiner stating there was no current disability is not accurate; consideration must be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Here there was functional limitation despite the examiner's statement that the abnormal range of motion had no clinical significance. Saunders specifically finds otherwise. As such, the April 2017 Board remand requested a new examination and medical opinion to determine the current disabilities and if any were due to service, and to opine as to the Veteran's IN/ACDUTRA service. The July 2017 VA examiner noted a diagnosis for patellofemoral pain syndrome (PFS) and the Veteran reported constant pain in his knees due to the years of physical training, running, and jumping off of trucks. His range of motion was abnormal, with extension limited to 10 degrees on the right, and limited to 15 degrees on the left. It was also noted he uses a cane for ambulation when experiencing increased pain in the knees. The examiner opined, however, that "during service, condition was acute only. There is no evidence of chronicity of care." The rationale was that there was no follow up of care from August 1991 until July 1993 and no additional complaints of said condition after October 1993. The Board finds that the 2017 VA opinion inadequate as the examiner did not appear to consider the October 1997 report of medical history in which the Veteran indicated that he had or currently has arthritis, rheumatism, or bursitis as well as the March 2003 examination report that noted "knee arthritis." Additionally, a May 2003 post deployment health assessment revealed that the Veteran experienced swollen, stiff, or painful joints on duty and was placed on a profile for his knees. Furthermore, subsequent service treatment records dated from 2008 through 2011 noted the Veteran's knee symptoms, including pain and weakness. Finally, although the 2017 VA examiner referred to the Veteran's in-service diagnoses as bilateral patellofemoral pain syndrome and chronic bursitis, as well as left knee chondromalacia, with strain of the medial, lateral, and co-lateral ligaments, he did not clarify whether or not the Veteran had a current bilateral knee disability. Therefore, as per the May 2020 Board remand, an addendum opinion was requested to identify current disabilities and opine as to nexus. An opinion was obtained in June 2020, and the examiner did state the Veteran likely has a diagnosis for bilateral PFS, which "can be a chronic condition." The examiner also stated it was not clear if the 2017 examiner, who made the diagnoses of chondromalacia and bilateral PFS was carrying forward the service diagnoses but stated PFS is "evidently a new or recurrent condition" though the complaints in 2006 "may" have been PFS, which "'can' be a chronic condition with episodic flares or recurrences." The examiner opined it is less likely than not that the Veteran had knee issues while on active duty, or had aggravation of any sort due to any cause because "the Veteran's entry exam for his brief active-duty stint in 2003 was negative for knee conditions, as was the separation exam three months later. There is no evidence of the condition surfacing during the 2003 active-duty stint or proximate to service [and] the Veteran was accepted as whole in February 2003 and had no complaints at separation." However, this is blatantly incorrect. As discussed in greater detail below, arthritis was, in fact, noted on the March 2003 entrance examination; he was put on a running profile in April 2003; and his May 2003 post-deployment examination noted that the Veteran was on profile and light duty for his knees and he indicated that he had experienced swollen, stiff, or painful joints while on duty. The examiner than stated "it is as likely as not that the Veteran does have a condition of PFS that undergoes intermittent exacerbations. It is less likely than not due to service on active duty and is less likely than not aggravated beyond its natural course by the active-duty in 2003." The rationale was based on no chronicity of care following active duty which disregards the multiple remand directives instructing the examiner to consider the Veteran's IN/ACDUTRA periods of service; rather, the examiner only considered the 2003 period of active duty service and ignored the plethora of medical records showing knee issues and being on profile due to his knee issues (see discussion below) but only noted that the Veteran's 2006 report of knee pain may have been PFS but there was no recurrences of flares of the Veteran's knees while on active duty. Further, the Board finds that the examiner's discussion of current possible diagnoses fails to consider the 2018 X-rays which document moderate arthritis in the knees. In addition, the opinion that "the 2006 complaints may also have been PFS [and] PFS can be a chronic condition with episodic flares or recurrences" but the Veteran had no recurrences while on active duty is insufficient for the purpose of making a decision on the claim as it is too speculative to establish a causal relationship, and the opinion is of little probative value. Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (without supporting clinical data or other rationale, [the expert's] opinion simply is too speculative to provide the degree of certainty for medical nexus evidence.). Specifically, the examiner failed to consider the Veteran's IN/ACDUTRA periods of service wherein he did consistently report knee issues, and the examiner also did not include any supporting data for the negative opinion; as such, the opinion was more conclusory than probative. There are several pieces of evidence in favor of the Veteran's claim. First, a July 1991 letter from a private physician, Dr. S.W., shows the Veteran was examined and diagnosed with left knee chondromalacia with strain of the medial, lateral, and co-lateral ligaments. Second, service records show the Veteran had a period of IDT in August 1991 and an August 1991 individual sick slip indicated that the Veteran was injured and the examiner referred the left knee for an evaluation to determine fitness for physical training. He was assigned a physical profile from August 13, 1991, to September 30, 1991, for his left knee chondromalacia with strain of the medial, lateral, and co-lateral ligaments. Private treatment records show that in September 1991, the Veteran was diagnosed with left knee chondromalacia. July 1993 STRs show that the Veteran complained of his knees hurting, and he was diagnosed with chronic bursitis, and X-rays were ordered. A July 1993 letter from his private physician, Dr. S.W., reflects he reviewed the X-rays and the diagnosis of bursitis was continued and that the Veteran still has "pronounced knee pain when he attempts to run." September 1993 and October 1993 STRs show he was referred for orthopedic evaluation, and his X-rays were reviewed and chronic bilateral patellofemoral syndrome (PFS) and early degenerative joint disease (DJD) were diagnosed. He was subsequently on several profiles due to his knee conditions. Records from December 1993 show the Veteran was diagnosed with chronic bilateral patellofemoral pain syndrome and a permanent profile was recommended. On an October 1997 report of medical history, the Veteran indicated that has had or currently had arthritis, rheumatism, or bursitis. The Veteran entered a period of active duty in March 2003. A March 2003 medical report shows that "knee arthritis" was noted. An April 2003 pre-deployment health assessment then initially indicted that the Veteran was not on a profile, or light duty, or undergoing a medical board, but a final medical disposition indicated that the Veteran was deployable although he had a P2-no running profile. In a May 2003 post deployment health assessment, the Veteran indicated that he was currently on a profile and light duty for his knee. He indicated that he had experienced swollen, stiff, or painful joints on duty. As noted above, the prior VA examiners all opined there was no condition noted during active duty which is erroneous as the 2003 medical record clearly shows otherwise. A July 2003 memorandum of physical evaluation report noted that the Veteran had arthritis in his knees. In an April 2008 report of medical history, the Veteran indicated that he had swollen and painful joints, and knee trouble. He clarified that his knees were weak at times. April 2008 and September 2009 Functional Capacity Certificates noted the Veteran's knee pain. A May 2008 initial medical review-annual medical certificate noted that the Veteran had joint pain. Physical profiles dated in June 2008, August 2008, October 2008, November 2009, December 2009, July 2010 and November 2011 indicated that the Veteran had pain in both knees. Additionally, the Veteran has consistently reported that during service, he was frequently involved in activities that required overworking his knees, such as years of marching, physical training testing, and jumping into and out of various types of equipment during his periods of active duty, ADT, and IDT over the course of several years from 1969 to 2010. See 2011 Notice of disagreement. The Veteran also consistently reported his knee pain to his medical doctors as well as described current symptoms during VA examinations as constant aching dull pain in the bilateral knees. He reported that he had a couple of falls related to his "knees giving out" and that he uses biofreeze and Ibuprofen for treatment. His May 2010 private records note he had arthralgias, myalgias, joint stiffness and limb pain. It was also noted that he had a limp and his gait was affected by this and he was walking with a crutch. Further, February 2018 X-ray findings revealed mild diffuse osteopenia with moderate narrowing of the lateral compartment and degenerative spurring at the lateral compartment and posterior patella. The examiner noted that "overall, these degenerative changes appear mild/moderate in degree small amount suprapatellar joint fluid." The Board notes that the Veteran is competent to report knee problems during and since service and the Board finds that his account of having knee pain and issues during and since service is credible. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, while the RO did not substantially comply with the prior remand directives as noted above regarding clarifying all periods of Federal service to include ACDUTRA and INACDUTRA service, the Board considered the periods of service that were clarified. For example, the Veteran had INACDUTRA service in June 29-30, and July 13-14, 1991; and his DFAS payment worksheet in 1993 shows May 1-2; June 5-6; July 10-11; August 7-8; September 10-13; October 2-3; November 12-14; and December 4, 1993. Per his military history information report from June 2017, the Veteran had active duty service from March 15- June 6, 2003; June 11-12, 2009; August 2-15, 2009; and June 5-18, 2010. As noted above, the Veteran reported his bilateral knee pain and was diagnosed with ongoing knee disabilities during active duty and ACDUTRA service periods, or within a day of the INACDUTRA period. Importantly, the Veteran's military personnel records also show he received a certificate of completion on August 16, 1991 and as noted above, his STRs show he was injured and put on a profile for his knees on August 13, 1991; which demonstrates he was, indeed, injured while serving during an INACDUTRA time period and was subsequently put on multiple profiles and consistently reported knee pain and issues since this injury. As such, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current bilateral knee disabilities are related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for degenerative arthritis of the bilateral knees is warranted and the claims are granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.