Citation Nr: 22012108 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 18-39 502 DATE: March 2, 2022 ORDER Entitlement to service connection for a left knee condition is granted. Entitlement to service connection for a back condition, as secondary to his left knee condition, is granted. Entitlement to service connection for a left hip condition, as secondary to his left knee condition, is granted. REMANDED Entitlement to service connection for a left shoulder condition, as secondary to his left knee condition, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his preexisting left knee condition was aggravated during his period of active service. 2. The Veteran's back condition is proximately due to/aggravated beyond its natural progression by his service-connected left knee condition. 3. The Veteran's left hip condition is proximately due to/aggravated beyond its natural progression by his service-connected left knee condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee condition have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303. 2. The criteria for service connection for a back condition as secondary to service-connected left knee condition are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a left hip condition as secondary to service-connected left knee condition are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1978 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2018 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). In June 2020, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the claims file. In July 2021, the Board remanded the claims on appeal for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a left knee condition The Veteran seeks entitlement to service connection for a left knee condition. The Veteran contends that his left knee condition, which preexisted his entrance into service, was aggravated permanently by his service. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. A pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). In such cases, the record must simply show by a preponderance of the evidence that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The initial burden falls on the Veteran to establish an increase in the severity of the preexisting disability. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). VA may rebut the presumption of aggravation, by establishing with clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. Wagner, 370 F.3d at 1096. See also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). 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). 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(b); 38 C.F.R. § 3.102. The Board finds that there is clear and unmistakable evidence demonstrating that his left knee disability existed before entry. In 1981, the Veteran submitted a medical note from his private physician dated November 1977. Within the November 1977 note, the physician stated that the Veteran came under his care in April 1976 following a motorcycle accident, where the Veteran sustained fractures of the proximal tibia and fibula bilaterally, both fractures healed. Further, because of a valgus deformity, a proximal tibial osteotomy was done in November 1976. The physician further stated that the Veteran made an excellent recovery from that surgery, and at the time of the note, the Veteran had no functional limitations and was fit for military duty. See December 1981 Third Party Correspondence. Therefore, the presumption of soundness does not apply to the Veteran and a preexisting disability of a left knee condition has been established by the record. The Board also finds that the Veteran has met his initial burden in showing that his preexisting disability increased in severity. According to the Veteran's medical records, he sought treatment for left knee pain and instability in August 1978 and September 1979. Also, the Veteran's service treatment records (STRs) note an in-service fall and re-injury of his left knee resulting in surgery to repair a torn meniscus. Further, in October 1979, the Veteran was discharged by reason of physical disability existing prior to entry on active duty, noting left knee instability. Also, the Veteran has submitted credible lay evidence indicating an in-service worsening of the disability during that period that continued after service, which is supported by his medical treatment records. Additionally, as noted above, the medical board noted left knee instability and the Veteran was discharged from service. See STR-Medical. Therefore, the record contains credible evidence indicating an increase in the severity of the preexisting disability, and the Veteran's left knee condition is presumed to have been aggravated during service. In March 2018, the Veteran was afforded a VA examination. The examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support, the examiner stated that, at the time of the Veteran's separation, it was noted that his disability "was neither incurred, no aggravated by a period of active service." Further, the examiner stated that due to a nearly 40-year interval between the examination and the Veteran's separation makes rendering an opinion difficult without speculation However, the examiner failed to consider the Veteran's assertion, and the November 1977 medical note, that provided the Veteran had no functional limitations prior to entering military service and that the in-service fall and subsequent treatment aggravated the Veteran's left knee condition. And the examiner did not provide a reasoned explanation or opinion as to why the Veteran's left knee disability clearly and unmistakably was not aggravated beyond its natural progression. Therefore, the March 2018 opinion is of limited probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (explaining that a medical report without "a reasoned medical explanation" lacks probative value). In September 2021, the Veteran was provided a VA examination to obtain a medical opinion addressing whether there is clear and unmistakable that the Veteran's pre-existing left knee condition was not aggravated beyond the natural progress of the disorder by his active military service. Following the completion of the examination, the examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. However, applying the wrong standard, the examiner reasoned that there is insufficient evidence to conclude that without a reasonable doubt that the injury sustained during enlistment accelerated the current degenerative disease. Further, the examiner provided a contradictory rational in support of his opinion, stating that "based upon the available documents that were reviewed it is clear that the claimant was able to participate within active service until sustainment of his injury to left knee. . . There is no documentation noting any limitation prior to him sustaining his injury." As discussed above, C.F.R. § 3.306 requires clear and unmistakable evidence to rebut the presumption of aggravation. Here, there is equivocal evidence of aggravation and, as such, there is not clear and unmistakable evidence that the left knee was not aggravated during service. Because there is not clear and unmistakable evidence that the Veteran's worsening of his left knee disability was due the natural progress of the disease, the presumption of aggravation has not been overcome, and aggravation is presumed. 38 C.F.R. § 3.306(b). See also Cotant v. Principi, 17 Vet. App. 116, 131 (2003) (defining "clear and unmistakable evidence" as evidence that is obvious, manifest, and undebatable). Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for a left knee condition is granted on the basis of aggravation of a pre-existing condition. 2. Entitlement to service connection for a back condition, as secondary to his left knee condition 3. Entitlement to service connection for a left hip condition, as secondary to his left knee condition To establish service connection, the evidence must generally show (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, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). Additionally, service connection on a secondary basis is warranted when it is shown that a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. This includes disabilities aggravated or made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Pursuant to 38 U.S.C. § 1110 and 38 C.F.R. § 3.310(a), when aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See Allen, 7 Vet. App. at 448. The Board notes that the United States Court of Appeals for Veterans Claims (CAVC) has noted that conditions may wax and wane in severity, and that a medically ascertainable incremental increase in disability, may meet the definition of "disability" " the impairment of earning capacity due to disease, injury, or defect." Ward v. Wilkie, 31 Vet. App. 233, 239-40 (2019). The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). A claimant bears the evidentiary burden to establish entitlement to the benefit sought. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). 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. 38 U.S.C. § 5107(b). The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, _ F4th_, 2021 U.S. App. LEXIS 37307, 2021 WL 5983923 (Fed. Cir. Dec. 17, 2021) (en banc). The Veteran contends that his back and left hip conditions are secondary to his service-connected left knee condition. His service treatment records are silent for any complaints, treatment, or diagnoses of a back or left hip injury/disability. However, the Veteran's service treatment records note complaints, treatment, and diagnoses of a left knee condition and the Veteran was medically discharged. Currently, the Veteran is service connected for a left knee condition. The Veteran's post-service treatment records note complaints/treatment for back and left hip pain. Additionally, including a diagnosis of degenerative disk disease, sacroiliac joint dysfunction, unequal limb length (acquired), and left hip strain. The Veteran continues to receive treatment for his left hip and back disorders. In June 2020, the Veteran testified at a board hearing. During the hearing, the Veteran stated that the pain in his knee distorts his walk and puts pressure on his left hip and back. In July 2020, the Veteran submitted a private medical opinion, wherein the examiner opined that, following the Veteran's in service knee surgery and therapy, the Veteran has been plagued with recurring back pain and an altered gait causing an apparent short leg. And due to the left knee injury, the Veteran has altered his gait causing stress and strain to the sacroiliac joints and the pelvis becomes fixated at one or both of the joints, causing pain and limited mobility. Further, the examiner explained that the re-injury of the Veteran's knee is the likely cause of the Veteran's chronic back condition. In September 2021, the Veteran was provided a VA examination. During the examination, the examiner stated that the Veteran's left hip and back conditions are inexplicably tied to his prior knee injury and the Veteran's changed locomotion. Further, the examiner opined that there is clear evidence of decreased range of motion (especially extension without provocation of moderate to severe pain), and diminished locomotion which are likely contributing to his hip and back condition as the Veteran's locomotion is abnormal and placing abnormal strain on lower back and left hip. Upon review of the evidence, the Board finds that service connection for a left hip condition and a back condition a secondary basis is warranted. As an initial matter, the Board finds that the Veteran has current diagnoses for a back condition and a left hip condition. Furthermore, there is medical evidence that the decreased range of motion and diminished locomotion, caused by the Veteran's left knee condition, are contributing to his hip and back conditions, as the Veteran's locomotion is abnormal and placing abnormal strain on lower back and left hip. Accordingly, service connection for a back condition and a left hip condition as secondary to the Veteran's service-connected left knee condition disability is granted. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder condition, as secondary to his left knee condition, is remanded. The Veteran asserts that his left shoulder condition is secondary to his service-connected left knee condition. The 2021 VA examiner appeared to find current functional impairment of the left shoulder, but did not provide any rationale as to why or why not the left shoulder disability is proximately due to left knee disability. Therefore, a remand is needed to obtain an addendum VA medical opinion. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. After associating any additional records with the claims file, forward the Veteran's claims file to an appropriate VA examiner for an addendum opinion. The examiner is asked to provide a response to the following: Is there a nearly equal chance or greater that any current disability and/or functional impairment of left shoulder has been caused by the service-connected left knee condition? Is there a nearly equal chance or greater that the Veteran's left knee disability has caused a medically discernible worsening of functional impairment of the Veteran's left shoulder condition (e.g., any additional functional impairment beyond the baseline level of disability)? In rendering the requested opinion, the examiner must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions. As well as the September 2021 VA examination finding functional impairment of the left shoulder. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.