Citation Nr: 22015309 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 15-24 536 DATE: March 17, 2022 ORDER Entitlement to service connection for a right knee disability, to include as secondary to left knee degenerative joint disease (DJD) and left knee instability associated with left knee DJD, is denied. FINDING OF FACT The evidence of record does not establish a causal relationship between an in-service event and the Veteran's right knee disability. The evidence of record is against finding that the Veteran's right knee disability was either proximately caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. § 1110, 1131, 1154, 5107; 38 C.F.R. § 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1986 to May 1986 and from May 1988 to May 1992. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated January 2015 issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed. The Veteran's appeal has previously been before the Board. In August 2018 and December 2021, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ) for additional development. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) 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). In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310; Wallin v. West, 11 Vet. App. 509, 512 (1998). If the positive and negative evidence is in approximate balance, the claimant receives the benefit of the doubt. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *10 (Fed. Cir. Dec. 17, 2021). Entitlement to service connection for a right knee disability, to include as secondary to left knee DJD and left knee instability associated with left knee DJD The Veteran claims entitlement to service connection for a right knee disability, to include as secondary to left knee DJD and left knee instability associated with left knee DJD. Following a thorough review of the Veteran's medical records, the Board finds that he is not entitled to an award of service connection. Direct Service Connection As an initial matter, the Board finds that the Veteran has satisfied the first element of service connection, a current disability. A review of the Veteran's August 2015 VA examination shows the Veteran has right knee degenerative arthritis that was diagnosed in 2015. See VA Examination dated August 2015. Additionally, a review of the Veteran's September 2021 VA examination shows the Veteran has right knee instability that was diagnosed in 2010. See VA Examination dated September 2021. Therefore, the Board finds that the Veteran has satisfied the first prong of service connection, the existence of a current disability. The Veteran contends that his right knee condition began while he was in service. A May 4, 1989, service treatment record (STR) shows that the Veteran had an abrasion to the right lower leg. The examiner provided the measurement of the abrasion. It was noted that the Veteran injured his leg after playing softball. Therefore, the Board finds that the Veteran has satisfied the second prong of service connection for a right knee disability: evidence of an in-service disease or injury. With regards to whether a causal relationship exists between the Veteran's current right knee disability and his active duty service, the Veteran was afforded VA examinations in August 2015, September 2021, and December 2021. Medical treatment records document that the Veteran stated that he injured his right knee in service, but he did not currently have any problems, except for occasional discomfort when he was climbing stairs. See Medical Treatment Record dated November 2001. In April 2013, the Veteran had knee pain. He stated that going downstairs was the most painful and made his knee feel as though it was going to give out. He took Ibuprofen daily for the pain. A January 2016 medical treatment record documented complaints of instability when he stepped causing him to feel like his kneecap was slipping off. He had an uneven gait. A March 2016 medical treatment record showed that the Veteran had an injection in his right knee. The Veteran was afforded a VA examination in August 2015 for his knees. The examiner determined that the Veteran's DJD of the right knee was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She reasoned, "STRs clearly document only an abrasion to right lower leg. STRs negative for right knee. If the injury involved the right knee, the examiner would have documented that as the location. Physiologically there is no medical evidence for a skin abrasion to become arthritic." The Board remanded the claim in August 2018 on the basis that the VA examination did not address the theory of entitlement to service connection on a secondary basis. However, the Board did not note any deficiency with respect to the opinion about service connection on a direct basis. After the remand, the Veteran was afforded another VA examination in September 2021. The examiner determined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. She provided an accompanying rationale. As discussed below, the Board finds that this opinion is not probative. In its December 2021 remand, the Board noted that the September 2021 opinion, although positive, was predicated upon an inaccurate factual premise, as the in-service notations of a twisted knee and possible torn patella were attributed to his already service-connected left knee, not his right knee. As this opinion was wholly based on an inaccurate factual premise, it lacked probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.). However, as the Veteran did experience an in-service abrasion injury to his right leg during service in May 1989, the Board determined that an addendum opinion should be obtained addressing whether this injury caused the current Pellegrini-Stieda lesion. Thereafter, the Veteran was provided another VA examination in December 2021. The examiner concluded that it was less likely than not that the Veteran's currently diagnosed conditions of the right knee were due to or incurred in service. He wrote, The Veteran was diagnosed with bilateral DJD on X-rays in 2010 and at the time of the X-rays, lesions consistent with prior medial collateral ligament injury were documented. There is no evidence of any such event in service. The Veteran was treated for an abrasion of the right knee occurring on May 4, 1989, with follow-up through May 12, 1989. There was no evidence of a knee condition per se, and certainly nothing consistent with a significant medial collateral ligament injury. A separation exam was not located but was presumptively performed. It is highly unlikely a significant right knee condition would have gone unnoted or unreported at the time of separation. It is more likely than not that the Veteran suffered the medial collateral ligament injury and developed naturally occurring DJD post-service. The MCL injury would have been acute and would have been readily apparent while in service. It is medically implausible an individual could have functioned in a military environment with an active, ongoing MCL tear or avulsion. DJD is a naturally occurring condition due to normal wear and tear over a lifetime. However, an injury involving the internal joint itself can predispose an individual to develop DJD. There are no events in service that would predispose the Veteran to develop naturally occurring DJD and certainly nothing to have caused the MCL injury associated with the X-ray findings. In summary, it is less likely than not that the Veteran's DJD and Pellegrini-Stieda lesion with instability of the right knee are due to or incurred in service, including the single, resolved right knee abrasion occurring in May 1989. The Veteran served an additional three years without evidence of an ongoing condition. Any report of onset in service with continuity of symptoms since service is not supported by the medical evidence and the natural pathophysiology of DJD and the acute pathophysiology of the instability and lesions indicating an MCL tear. The Board finds that there has been substantial compliance with the Board's December 2021 remand directives as the December 2021 opinion considered the in-service abrasion injury to the Veteran's right leg and addressed whether this injury caused the current Pellegrini-Stieda lesion. Stegall v. West, 11 Vet. App. 268, 271 (1998); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The opinions of the August 2015 and the December 2021 VA examiners provided clear conclusions with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the Board finds both of these opinions are adequate and probative. The Board finds that the question of whether a nexus exists between the Veteran's active duty service and his current right knee disability is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is a medically complex issue requiring specialized medical education or knowledge. See 38 C.F.R. § 3.159(a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Because the Veteran does not have specialized medical training, experience, or knowledge, his opinion, no matter how sincere, is not competent nexus evidence. Based on the foregoing, the Board finds that the competent and credible evidence is neither evenly nor approximately balanced as to whether entitlement to service connection for a right knee disability is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b), Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (holding the benefit-of-the-doubt doctrine is not for application when the evidence is persuasively for or against the claim). The claim is denied. Secondary Service Connection In its August 2018 remand, the Board found that the issue of service connection for a right knee disability secondary to the left knee was raised based on a January 2016 primary care note indicating that the Veteran had altered his gait due to his service-connected left knee symptoms. Following a thorough review of the Veteran's medical records, lay evidence, and medical opinion evidence, the Board finds no evidence to support a theory of service connection as secondary to left knee DJD and left knee instability associated with left knee DJD. As an initial matter, the Board finds that the Veteran has satisfied the first element of secondary service connection, a current disability, as discussed above. As to evidence of a service-connected disability, the Veteran is service-connected for left knee degenerative joint disease and left knee instability associated with left knee degenerative joint disease, among other disabilities. Therefore, the Board finds that the Veteran has satisfied the second prong of service connection on a secondary basis: evidence of a service-connected disability. Turning next to evidence of a causal relationship between the service-connected disability and the current disability, the Board finds the weight of the competent evidence does not support a nexus. In determining this, the Board finds the medical opinion of the September 2021 VA examiner to be probative and entitled to significant weight. On the September 2021 VA examination, the examiner determined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner also determined that the Veteran's claimed condition was less likely than not aggravated beyond its natural progression by the service-connected condition. She reasoned, "There is no clear evidence to suggest that an injury to one lower extremity would have any significant impact on the opposite uninjured limb unless the injury resulted in major muscle or nerve damage causing partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than four or five centimeters so that the individual's gait pattern has been altered to the extent that clinically there is an obvious lurching type gait (a significant limp). In order for this type of gait to have impact on the opposite or uninjured leg, it is likely that the abnormal gait or limp would need to be present over an extended period of time years." Dr. Ian J. Harrington, Orthopedic Surgeon, August 2005 Symptoms in the Opposite or Uninjured Leg. The examiner then provided a link to the medical literature that she cited to in her rationale. The Board notes that while the content of each opinion is the same, the examiner did provide this rationale separately for both her causation and aggravation opinions. Furthermore, the examiner wrote the rationale in a way that is sufficient to address the impact of the left knee DJD and left knee instability associated with left knee DJD on the right knee disability on both a causation and aggravation basis. Even though the January 2016 VA treatment record noted that the Veteran had an uneven gait that was affecting his left hip, there is no indication in the record that he had an obvious lurching-type gait with a significant limp impacting the left knee, which is consistent with the VA examiner's opinion. The Board finds the opinion of the September 2021 VA examiner to be probative, as it provided clear conclusions with supporting data, and reasoned medical explanations connecting the two. Stefl, 21 Vet. App. at 124-25; Nieves-Rodriguez, 22 Vet. App. at 304. Thus, the Board finds this opinion adequate and probative. There is no evidence supporting a nexus between a right knee disability and his left knee DJD and left knee instability associated with left knee DJD. Therefore, service connection is not available on a secondary basis. Conclusion The Board has reviewed all medical and lay evidence, but finds there is no probative evidence of record which establishes a causal relationship between the Veteran's right knee disability and an in-service event or a causal relationship between the Veteran's right knee disability and service-connected left knee DJD and left knee instability associated with left knee DJD. The benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b), Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (holding the benefit-of-the-doubt doctrine is not for application when the evidence is persuasively for or against the claim). The claim is denied. SARAH B. RICHMOND Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.