Citation Nr: 22057769 Decision Date: 10/13/22 Archive Date: 10/13/22 DOCKET NO. 11-24 046 DATE: October 13, 2022 ORDER Entitlement to service connection for a bilateral knee disability is granted. REMANDED Entitlement to service connection for a right foot disability, to include as secondary to a now service-connected knee disability, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the evidence of record is in approximate balance as to whether the Veteran's bilateral knee disability was present in service or related to service or to an incident of service origin, or was present within 1-year after service, or was present in service and/or chronically thereafter. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral knee disability have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1976 to March 1983, with additional Reserve service. By way of history, in August 2013 the Board of Veterans' Appeals (Board), inter alia, remanded the matters of entitlement to service connection for right foot arthritis and degenerative joint disease of the knees. In November 2014, the Board denied the issues of entitlement to service connection for right foot arthritis and degenerative joint disease of the knees. The Veteran appealed the denial of his claim for service connection for right foot arthritis and degenerative joint disease of the knees to the United States Court of Appeals of Veterans Claims (Court). In June 2015, the Court granted a Joint Motion for Remand (JMR) remanding the November 2014 Board decision for additional development in accordance with the JMR. The parties to the JMR found that the Board erred in relying on October 2013 VA examinations because the examiner failed to provide adequate rationale to support his determination that service connection was not warranted for the knee and right foot disabilities. In September 2018, July 2020, and April 2021, in further development of the June 2015 JMR, the Board remanded the issues of service connection right foot arthritis and bilateral degenerative joint disease of the knees. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (matters are remanded pursuant to 38 U.S.C. § 7252(a) for action consistent with the terms of the joint motion); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also notes that in April 2021 the Board, inter alia, denied the Veteran's claim for service connection for a heart condition, to include as secondary to service-connected sleep apnea. The Veteran appealed the denial of his heart claim to the Court, and in October 2021, the Court granted a JMR remanding the claim for service connection for a heart condition, to include as secondary to service connected sleep apnea, for additional development in accordance with the October 2021 JMR. The Court noted that the Veteran's knee and foot claims were not part of the appeal to the Court, and were not subject to the October 2021 JMR. As such, the issue of service connection for a heart condition, to include as secondary to service connected sleep apnea, will be addressed in a separate Board decision. Accordingly, the Board will proceed with adjudicating the remaining issues on appeal, as noted in the June 2015 JMR. The Board apologizes for any confusion that this may cause the Veteran. SERVICE CONNECTION The Veteran contends that his bilateral knee disability is related to service. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection for certain chronic diseases, including arthritis, may be presumed to have been incurred in service, by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service (for Hansen's disease (leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 years). 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). If a condition noted during service is not shown to be chronic, then a showing of continuity of symptomatology after service is generally required for service connection, but only if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Importantly, the Veteran bears the burden of presenting and supporting his claim for benefits. See 38 U.S.C. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 1. Entitlement to service connection for a bilateral knee disability Turning to the evidence, the Board notes that there is no dispute that the Veteran has a current bilateral knee disability. Importantly, the Veteran has argued "continuity of symptomatology" relating his bilateral knee disability to service. He and his spouse have provided lay statements claiming onset for his bilateral knee condition during an in-service motor vehicle accident (MVA) in 1980, and a course of symptoms, to include experiencing popping in his knees that worsened over time, since 1980. There is nothing in the record to discount the probative value of the Veteran's competent and credible testimony for his service and medical history. The competent, credible, and probative medical history includes a March 1992 treatment record that assessed the Veteran with degenerative joint disease, reflecting that the Veteran's knees popped and ached for the prior 10 years, a May 1992 VA examination that found the Veteran's right knee pain and swelling was gouty arthritis, a September 1992 private treatment record reflecting that the Veteran was diagnosed with knee bursitis related to the 1980 MVA, and a January 1993 private treatment record reflecting that the Veteran was assessed with an old knee injury and it was suspected that he had injured ligaments. The Board notes that, while the October 2013, April 2018, and July 2020 VA negative medical opinions have been considered, they are flawed. Nonetheless, the Board has decided not to prolong this appeal by remanding for another medical opinion to address the Veteran's competent and credible statements of having a bilateral knee disability since service. See Miller v. Wilkie, 32 Vet. App. 249, 252 (2020) (holding that when an examiner fails to address the veteran's lay evidence, and the Board did not find the veteran not credible, or not competent, to offer that lay evidence, the proper remedy is for VA to obtain a new examination). In considering the evidence discussed above, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's bilateral knee disability had its onset during service, or within one year following service discharge, and present chronically thereafter. As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a bilateral knee disability is warranted. 38 U.S.C. § 5107; Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). REASONS FOR REMAND 1. Entitlement to service connection for right foot disability The Board apologizes for the further delay, but finds another remand is necessary in order to properly adjudicate the Veteran's right foot disability claim. The Veteran asserts that he developed a right foot disability as a result of his now service-connected bilateral knee disability. Specifically, per an April 2018 VA examination report, the Veteran advanced that his right foot started to hurt after his 1993 (post-service) knee surgery, and that he did not recall injuring his right foot in the March 1980 MVA. The April 2018 VA examiner also found that the Veteran's swelling in his right foot was due to a tibialis anterior tenosynovitis, as well as a common toe flexor tendon bursitis, secondary to cast removal and subsequent motion over the ensuing two months from his 1993 knee surgery. To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran has a current diagnosis of a right foot disability, and the Board grants entitlement to service-connection for a bilateral knee disability in this decision. Accordingly, the Board finds that obtaining a VA medical opinion regarding secondary service connection is necessary. The aforementioned matter is REMANDED for the following action: 1. Associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran's representative should submit any new pertinent evidence that the Board does not have. 3. Obtain an addendum medical opinion from an appropriate medical professional to determine the nature and origin of the Veteran's right foot disorder. After reviewing the record, to include the Veteran's lay testimony, the examiner is asked to address the following: (a.) Identify all diagnoses associated with the Veteran's right foot. (b.) opine, is it at least as likely as not that each of the Veteran's identified right foot disabilities were caused by service, or are otherwise related to the Veteran's military service, to include the Veteran's reports of a March 1980 MVA in service? (c.) If no direct causal relationship is found, then opine whether there is evidence that one or more of the Veteran's current right foot disabilities persisted since service. (d.) if none of the above, opine whether it is at least as likely as not that one or more right foot disabilities were caused by, or aggravated by, any service connected knee disability. The examiner should consider all medical and lay evidence of record, including the findings of the April 2018 VA examiner who found that the Veteran's swelling in his right foot was due to a tibialis anterior tenosynovitis, as well as a common toe flexor tendon bursitis, secondary to cast removal and subsequent motion over the ensuing two months from his 1993 knee surgery. The examiner must keep in mind that "aggravation" means any incremental increase in disability in non service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service connected condition(s). See Ward v. Wilkie, 31 Vet. App. 233 (2019) (the Court redefined the definition of aggravation to include temporary flare-ups). If the examiner finds that the Veteran's right foot disability has been aggravated by his service-connected disability, then he/she should state the baseline level of severity of the right foot disability, established by the earliest available medical evidence, and describe the extent to which the condition was worsened by the Veteran's service-connected disability. In providing answers to the above questions, the examiner should be aware of the fact that he/she cannot rely solely on negative evidence to support the opinions. If there is a medical basis to support or doubt the history provided by the Veteran, or the private medical reports, given current X-ray or MRI findings, the examiner should provide a fully reasoned explanation. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. E. BLOWERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.