Citation Nr: 22014803 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 18-26 538 DATE: March 15, 2022 REMANDED Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1977 to July 1992, with additional service in the Florida Army National Guard from September 1994 to September 1997. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). On October 15, 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. It is noted that the Veteran had not appointed a representative at the time the appeal was received and formally placed on the Board's docket in September 2019. In this regard, in a letter dated September 8, 2019, the Board notified the Veteran that he had 90 days from the date of the letter in which to request a change in representation. See 38 C.F.R. § 20.1304. The record reflects that, 3 days before the Board hearing, the Veteran appointed the Tennessee Department of Veterans Services as his representative. See VA Form 21-22 (October 12, 2021). However, the Tennessee Department of Veterans Services was not available to represent the Veteran on the day of the Board hearing. The hearing transcript reflects that the Veteran declined to postpone the hearing and elected to proceed unrepresented. The VLJ held the record open for 60 days for his new representative to submit a written statement or brief in support of the appeal and to allow the Veteran to obtain supporting evidence, namely, a favorable medical opinion linking his left knee disability to his active service, or alternatively, to a service-connected disability. VA subsequently received additional evidentiary submissions that are not related to the left knee claim on appeal. Entitlement to service connection for a left knee disability is remanded. The Veteran contends that service connection is warranted for his left knee disability, diagnosed as meniscus tear, based on two theories of entitlement. First, the Veteran argues that he developed symptoms of a left knee disability shortly after his separation from active duty, due to the "wear-and-tear" caused by his duties in service as an infantryman and participation in approximately 65 parachute jumps during active service that led to left knee disability and meniscus tear. See e.g., NOD (February 2018) & Hearing Transcript at 7, 11-12 (October 2021). Alternatively, he asserts that his left knee disability, meniscus tear, is secondary to his service-connected right knee disability. See VA 21-526EZ, Fully Developed Claim (November 2016) & VA Form 9 (May 2018). The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was Infantryman and that he was awarded the Infantryman Badge and Parachutist Badge. It also shows he participated in the Airborne Course and Jungle Warfare Training Course (2 separate occasions), Tropic Lightning Fighters Course, and Intensive Desert Training Course. The Board finds that remand is necessary to ensure VA has fulfilled its duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Although VA obtained medical opinions, these opinions are inadequate for adjudicative purposes, as explained below. First, as to the claim for service connection on a direct basis, VA obtained a March 2018 VA medical opinion. This opinion addressed the Veteran's theory that his left knee disability, diagnosed as left meniscal tear, was caused by the physical rigors required of an infantryman, along with participating in approximately 65 parachute jumps. The opinion concluded that the Veteran's left knee disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale was: There is no medical evidence in the veteran's service treatment records that indicate any injury to his knees as a result of his Parachute activities as an infantryman. A Parachutist Badge is not the cause of, or associated with the left knee meniscal tear or any other musculoskeletal injuries. Here, the Board finds the opinion is inadequate because it lacks a detailed rationale and is essentially based on the absence of documented complaints or treatment related to left knee injuries in the STRs. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible); Cf. Dalton v. Nicholson, 21Vet. App.23, 39-40 (2007) (holding that a VA opinion was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide a negative opinion). Further, the opinion reflects no meaningful consideration of the Veteran's testimony, which included his report of onset of symptoms shortly after active duty separation that persisted during his service in the Florida Army National Guard. See Hearing Transcript at 11 (October 2021). The failure to consider this renders the opinion inadequate. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate"). The Veteran testified that he did not believe that his left knee meniscus tear diagnosis was due to his in-service activities. Second, as to secondary service connection, a January 2017 VA medical opinion concluded that the Veteran's left knee disability was less likely than not due to or the result of his service-connected right knee disability. The rationale was: The Veteran has an MRI dated 2016 which shows a meniscal tear to his left knee. He has no complaints of pain/trauma/injury noted at any time during his military career. It has been shown that an injury to a joint does not necessarily cause deterioration of the opposing joint as noted in research. Lay people and many doctors as well, believe that pain or disability in one leg can stress the other one and produce symptoms in it. It is often claimed that an injury causing disability of one leg initiated or aggravated a disabling condition in the opposite normal or previously asymptomatic lower extremity. It may be reasoned that the injury to one leg caused the patient to "favour" it and that this in turn unduly stressed the normal leg because it has had to bear more weight, causing or accelerating arthritis in one of its joints (usually the knee). It is assumed that when a person says he favours his leg, he means that he limps, sometimes requiring him to use crutches in order to protect the injured limb. The mechanics of limping are poorly documented in the orthopaedic literature and there is no clear scientific basis for such reasoning. In particular, few references have been found to the effect of the limp on the other leg. The evidence available indicates that an injury in one extremity rarely causes a major problem in the opposite or uninjured extremity except when damage to the leg results in a major displacement of the center of gravity of the body while walking, significant shortening of the injured limb and the abnormal gait pattern has been present for an extended period of time. The January 2017 VA medical opinion further concluded that the Veteran's left knee disability was not aggravated beyond its natural progression by his service-connected right knee disability. The rationale was that: The Veteran reports having new onset of left knee pain in the past couple of years. It is noted in 2/2016 that he was noted to have a tear of his meniscus in his left knee. He has not had any follow up concerning that finding. He was informed of this finding at today's exam and asked to follow up with his PCP concerning the meniscal tear. He was not aware of this finding, only states that he knew he had pain in his left knee. The Veteran states he has had no change in his right knee since his surgery and at today's exam he states it was doing well. He states he is having more problems from his left knee than his right. Next, a June 2018 VA medical opinion concluded the Veteran's currently diagnosed left knee meniscus tear is less likely than not caused by the right knee meniscal tear during service. The rationale was: The service medical record reveals 1992 Right ACL and meniscus repair. The Veteran states after discharge from the military he joined the National Guard and could not make the physical training requirements for running. He felt that he had a bruise in his left knee, especially with prolonged walking, and standing. The left knee pain occurred gradually, and worsened over the years. A February 22, 2016 MRI of the left knee revealed complex tearing of the posterior horn, medial meniscus. The Veteran was seen on March 31, 2016 progress note left knee meniscus tear. Most commonly, meniscal tears are caused by some sort of traumatic injury or sports injury. By rapid stepping or squatting on an uneven surface, turning quickly, or twisting on planted feet. The Veteran was diagnosed with a right knee meniscal tear in 1999. He was not diagnosed with a left knee meniscal tear until February 22, 2016. It is my medical opinion that too much time has elapsed between the diagnosed right knee meniscal tear and the left knee meniscal tear. The Board finds that both the January 2017 and June 2018 medical opinions addressing secondary service connection are inadequate for decision making purposes. The opinions reached negative conclusions without fully addressing the Veteran's lay contentions and medical history. Furthermore, the opinions were not supported by specific clinical findings, medical literature discussed vis-à-vis any facts specific to this Veteran. For example, the rationale for the January 2017 opinion is not definitive and relies on sweeping generalizations instead of information specific to the Veteran's case. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Here, the examiner referred to "beliefs" of "lay people and many doctors", used phrases such as "it has been shown," "as noted in the research" "it is often claimed," "it may be reasoned," "it is assumed," "the evidence available," and "orthopedic literature." A medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21Vet. App.102, 124-25. A "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). Moreover, the June 2018 opinion did not consider the aggravation prong of service connection. While the medical opinion addressed whether the left knee disability was caused by the service-connected right knee disability, it did not address whether the left knee disability was aggravated by the service-connected right knee disability. See El-Amin v. Shinseki, 26 Vet. pp. 136 (2012). Lastly, the Board notes that service connection was granted for gout of the right foot and left foot, effective August 1, 1992. A November 2002 VA primary care clinic record shows the Veteran reported left knee pain lasting one week. Physical examination showed that the left knee was slightly enlarged and warm to touch, compared to the right knee. There was also decreased range of motion in the left knee and palpation caused sharp pain around the joint cap areas. The Veteran's additional complaints included intermittent and migrating joint pain in the toes, ankles, and right knee. At the conclusion of the visit, the Veteran was assessed with gouty type arthralgia/arthritis. In a December 2015 VA non-degenerative arthritis examination report, the Veteran was diagnosed with gout, with onset in 1992. The Veteran reported, among other things, intermittent pain and stiffness involving his left knee. The examiner checked off the Veteran had left knee, ankle and toe involvement that was attributable to gout. Given these facts, a VA medical opinion should also consider whether the Veteran's left knee complaints, noted prior to his diagnosis of a meniscal tear in 2015, may be related to his service-connected gout condition. Based on the inadequate medical opinion discussed above, remand is necessary for an addendum opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Obtain all VA treatment records dated from September 2021 to the Present. 2. Obtain an addendum medical opinion from an appropriate clinician regarding the Veteran's left knee disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with a left knee disability. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to the following: Direct Service Connection (a) Whether the Veteran's left knee disability, diagnosed as left knee meniscal tear, at least as likely as not (1) had its onset in active service, or (2) is otherwise related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that his duties as an infantryman and history of approximately 65 parachute jumps during his active service caused his current left knee disability. Note that the Veteran served on active duty from June 1977 to July 1992; was awarded the Parachutist Badge, and; completed Airborne Course, 2 Jungle Warfare Courses, Tropic Lightning Fighters Course and Intensive Desert Training. Secondary Service Connection (b) Whether the Veteran's left knee disability is at least as likely as not (1) proximately due to a service-connected disability, to include right knee meniscal tear with osteoarthritis, status post ACL repair, and/or gout or (2) aggravated beyond its natural progression by a service-connected disability, including his service-connected right knee disability and/or gout. Consider a November 2002 VA primary care report reflecting an assessment of gouty type arthralgia/arthritis after the Veteran complained of left knee pain and intermittent and migrating joint pain. Also consider the December 2015 VA examination report in which the examiner checked off the Veteran's left knee pain was attributable to gout. NOTE (1): A negative medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. NOTE (2): A negative medical opinion may not dismiss the Veteran's competent report of symptoms in service and since without providing an explanation as to why. For example, if the Veteran's reports about his symptoms do not align with how the currently diagnosed disability is known to develop, or, if the Veteran's reports are generally inconsistent with medical knowledge or implausible, the examiner must provide an explanation as to why. NOTE (3): If another etiology is the more likely cause of the left knee disability, then identify that etiology and fully explain. The conclusions must be supported with data (e.g. history, findings, etc.) along with a reasoned medical explanation connecting the two. NOTE (4): An adequate medical opinion on secondary service connection will include a rationale that addresses causation and aggravation as independent concepts. 3. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.