Citation Nr: 22012019 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 15-44 127 DATE: March 2, 2022 ORDER Entitlement to service connection for a left hip disability as secondary to a service-connected left knee disability is granted. Entitlement to service connection for a right knee disability as secondary to a service-connected left knee disability is granted. REMANDED Entitlement to an increased rating in excess of 10 percent prior to September 5, 2021 and in excess of 20 percent thereafter for a left knee stress ligament is remanded. Entitlement to an initial rating in excess of 10 percent for left knee patellar subluxation is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A left hip disability has been shown to have been caused or aggravated by the Veteran's service-connected left knee disability. 2. A right knee disability has been shown to have been caused or aggravated by the Veteran's service-connected left knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hip disability have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1994 to November 1994. While evidence indicates this period of service was active duty for training (ADT), as the Veteran is service-connected for a disability incurred during that period of ADT it is considered active service for VA purposes. 38 U.S.C. § 101(24). This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in May 2013 the RO granted a separate 10 percent rating for patellar subluxation of the left knee, and denied entitlement to an increased rating in excess of 10 percent for a left knee stress ligament, service connection for a right knee disability and a left hip disability, and entitlement to a TDIU. The Veteran perfected an appeal of the ratings assigned to the patellar subluxation and stress ligament, and the denials of serviced connection and a TDIU. The Board most recently remanded the issues on appeal for additional development in May 2021. VA provided notice of the inability to obtain private treatment records from South Butler Medical Services and Tri County Medical in May 2021, VA treatment records were obtained in May 2021 and July 2021, the Veteran was requested to submit or release additional private treatment records in May 2021, and the requested examination was obtained in May 2021. As such, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In October 2021 correspondence, the Veteran's attorney notified VA that they were withdrawing as the Veteran's representative in the current appeal. VA notified the Veteran that her attorney had withdrawn that same month and further stated that if she wished to remain represented in the current appeal she needed to submit the appropriate form identifying her chosen representative. To date, the Veteran has not submitted a new power of attorney form in favor or a new representative. As such, she will be treated as pro se in this matter. Since the most recent adjudication of the current appeal by the RO, additional VA treatment records and examination reports have been associated with the file. In January 2022 correspondence the Veteran waived review of this evidence by the RO in the first instance. 38 C.F.R. § 20.1305(c). As such, the Board will proceed to address the appeal on the merits. Finally, the Board notes that in September 2021 the Veteran submitted a Privacy Act request for copies of all the VA examinations contained in her claims file. In October 2021, the Veteran was provided a copy of her entitle claims file, which inherently fulfilled her more specific September 2021 request. As the September 2021 request has been complied with, the Board may address the appeal. 38 C.F.R. § 20.1200. Veterans Claims Assistance Act of 2000 (VCAA) VA requested the Veteran's private treatment records from Dr. T.C. in July 2021. 38 C.F.R. § 3.159(c)(1). In August 2021 correspondence Dr. T.C. indicated that no treatment records could be located, and therefore that further attempts to obtain the records would be futile. Id. In August 2021 correspondence, VA informed the Veteran of the records they attempted to obtain, the efforts made to obtain them, further actions VA was going to take on the claim, and that the Veteran was ultimately responsible for submitting the records. 38 C.F.R. § 3.159(e). Thus, VA made adequate attempts to obtain the records, and provided sufficient notice of their inability to do so to the Veteran. 38 C.F.R. § 3.159(c)(1), (e). Neither the Veteran nor the record has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). As such, the Board will proceed to adjudicate the issue(s) on appeal. Service Connection Service connection may be granted 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. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened) by a service-connected disability. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). 1. Entitlement to service connection for a left hip disability. The Veteran has generally contended that her left hip disability was caused or aggravated by her service-connected left knee disability. The Veteran was diagnosed with a left hip strain during an October 2021 VA examination, and therefore a current disability has been shown. Further, the Veteran is currently service connected for a left knee stress ligament and left knee patellar subluxation. With the threshold requirement for secondary service connection met, the remaining question is whether the left knee disability caused or aggravated the left hip disability. VA obtained an opinion concerning secondary service connection in October 2021. The examiner stated that it was at least as likely as not that the left hip strain was caused by the service-connected left knee disabilities. The examiner explained that the left hip disability was likely caused by the increased pressure and weight being placed on the hip due to the left knee pain resulting in abnormal alignment of the knee and hip, thus establishing a pathophysiological relationship between the left knee and the left hip disabilities. There is no evidence that the examiner was either not competent or credible, and the opinion was supported by a well-reasoned rationale. As such, the Board finds that the opinion is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that VA obtained another opinion in July 2021 concerning the etiology of the hip disability. However, this opinion only stated that the hip disability was less likely than not related to the Veteran's period of service, specifically her in-service fall. As the opinion did not address secondary service connection, it is entitled to no probative weight. No other opinions concerning secondary service connection are of record. Based on the foregoing, the evidence weighs persuasively in favor of a finding that the Veteran's left hip disability was caused or aggravated by the left knee disability. The only competent and credible evidence of record is the October 2021 opinion, which clearly explained that the left hip disability was likely due to the left knee disability. As such, service connection for a left hip disability as secondary to a left knee disability is granted. 38 C.F.R. §§ 3.102, 3.310. 2. Entitlement to service connection for a right knee disability. The Veteran has asserted that her service-connected left knee disability either caused or aggravated the current right knee disability. The Veteran was diagnosed with a right knee strain during a July 2021 VA examination, and the Veteran is currently service connected for a left knee stress ligament and left knee patellar subluxation. With the threshold requirement for secondary service connection met, the remaining question is whether the left knee disability caused or aggravated the right knee disability. VA obtained opinions concerning secondary service connection in February 2021 and July 2021. The February 2021 examiner stated that the Veteran's right knee disability was at least as likely as not caused by the left knee disability. In support of that opinion, the examiner noted that the right knee pain began subsequent to the left knee injury, which indicated a causal relationship. The examiner further stated that a ligament injury of the knee, such as the Veteran's, is associated with a variety of chronic symptoms, including joint instability, weakness and pain, and that studies indicate these symptoms limit people in their activities of daily living. The examiner concluded by stating that the Veteran compensating for her left knee put additional wear and tear on her right knee. There is no evidence that the examiner was either not competent or credible, and the opinion was supported by a well-reasoned rationale. As such, the Board finds that the opinion is entitled to significant probative weight. Nieves-Rodriguez, 22 Vet. App. 295. The July 2021 examiner stated that it was less likely than not that the right knee disability was caused by the left knee disability. However, the examiner failed to address the question of aggravation of the right knee by the left knee. El-Amin v. Shinseki, 26 Vet. App. 136, 14041 (2013); see also Allen v. Brown, 7 Vet. App. 439 (1995). Further, the examiner provided no rationale supporting the secondary service connection opinion, citing only to evidence that disproved a direct relationship between the right knee disability and service. Nieves-Rodriguez, 22 Vet. App. 295. As such, the July 2021 opinion is entitled to no probative weight. No other opinions concerning the etiology of the right knee disability are of record. Based on the foregoing, the evidence weighs persuasively in favor of a finding that the Veteran's left hip disability was caused or aggravated by the left knee disability. The only probative evidence of record is the February 2021 opinion, which stated that the right knee disability was likely due to the left knee disability, a provided a clear supporting rationale for that conclusion. As such, service connection for a right knee disability as secondary to a left knee disability is granted. 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND 1. Entitlement to increased ratings for a left knee stress ligament and left knee patellar subluxation. The Veteran was most recently provided with a VA examination concerning her left knee in October 2021. The examiner, in pertinent part, stated on the examination report that there were no left knee meniscal conditions present on examination, and further that there was no history of surgical procedures on the left knee. As a result, the examiner did not include any findings concerning symptoms associated with a left knee meniscal condition. However, this finding directly conflicts with the other medical evidence of record, all of which indicates that the Veteran has a left knee meniscal tear. The tear was noted to be present in a February 2012 MRI conducted in conjunction with a VA examination, and was diagnosed and evaluated during August 2019, February 2021, May 2021, and July 2021 VA examinations. Further, as the October 2021 examiner noted that there was no history of surgery, it does not appear that the left knee meniscal tear has been corrected. As the October 2021 examination report appears to contain inaccurate facts, a remand is necessary so that a new examination may be provided to determine the precise severity of the Veteran's left knee disability. Reonal v. Brown, 5 Vet. App. 458, 46061 (1993). 2. Entitlement to a TDIU. Concerning entitlement to a TDIU, the Board finds that any determinations with respect to the remanded claim would materially affect a determination concerning a TDIU. As such, it is inextricably intertwined with the increased rating claim being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of her left knee disability. The examiner is asked to provide the following: (a) Test for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. (b) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms. Based on this information, the examiner should then provide an estimate concerning the average additional loss of motion during a flare-up. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.