Citation Nr: 22017648 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 14-02 037 DATE: March 25, 2022 ORDER Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran's left knee disability began during active service, or is otherwise related to an in-service injury, event, or disease, including the alleged in-service injury. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from March 1954 to June 1964. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded these matters in February 2017 and December 2021. In December 2021, the Board remanded these matters to obtain a new VA medical opinion on the nature and etiology of the Veteran's claimed left and right knee disabilities. Consequently, the RO obtained a new VA medical opinion for the Veteran's left and right knee disabilities in January 2022, and issued a January 2022 supplemental statement of the case denying entitlement to service connection for left and right knee disabilities, and returned these matters to the Board for appellate adjudication. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the RO substantially complied with the directives set forth in the December 2021 remand, and medical opinion obtained in January 2022 regarding the Veteran's left knee disability is adequate for deciding the issue on appeal. See Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall). The Board notes that the Veteran's former representative's accreditation with VA was cancelled in September 2021. In November 2021, the RO informed the Veteran of that cancellation and advised him that he is considered unrepresented. The Veteran has not since appointed a new representative, therefore, he is currently unrepresented. Entitlement to service connection for a left knee disability. At the November 2016 Board hearing, the Veteran testified that he injured his left knee playing football on active duty while stationed at Camp Pendleton Marine Corps Base. Also, in the December 2014 VA Form 9, Appeal to the Board, the Veteran asserted that he injured both of his knees during active service. The Veteran asserts that his left knee disability is related to the in-service injury. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt should be resolved in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Thus, the question for the Board is whether the Veteran has a current left knee disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, including the claimed in-service injury. The existence of a current left knee disability is not in question because during the May 2019 VA examination, the examiner noted the diagnosis of left knee strain, left knee meniscal tear, left knee joint osteoarthritis, and left knee instability. As far as in-service incurrence of a left knee condition is concerned, the Veteran was not diagnosed with any left knee condition during his active service, including knee strain, knee meniscal tear, knee joint osteoarthritis, or knee instability. The Board notes that the August 1953 and March 1954 enlistment examination reports noted left calf/shin scar but not any left knee disability. The left knee scar was noted in the September 1956, August 1957, June 1958, and August 1960 VA examination reports during the Veteran's service. However, there is no documented injury of the left knee in the service treatment records. Nonetheless, the Board finds that the Veteran is competent to report that an in-service left knee injury occurred. Hence, the second element of service connection that is in-service injury is met. To determine the nature and etiology of his left knee condition, the Veteran was afforded a VA examination and a VA medical opinion was obtained in May 2019, in which the examiner opined that the Veteran's current left knee disability is less likely than not related to his active service. As a rationale, the examiner stated that the service treatment records are silent regarding injury during active service. In the December 2021 remand, the Board found the May 2019 VA medical opinion inadequate because the examiner based the negative nexus opinion solely on lack of contemporaneous medical evidence. Hence, the Board remanded the matter to obtain a new VA medical opinion on the etiology and nature of the Veteran's left knee disability. The Board specifically directed the examiner to address the in-service documented left knee scar and whether this has any relationship with the Veteran's current left knee disability. Consequently, the Veteran was afforded another VA examination for his knee conditions and a VA medical opinion was obtained in January 2022, in which the examiner opined that the Veteran's left knee disability was less likely than not incurred in service. The examiner indicated that all relevant evidence of record, including service treatment records and the Veteran's contentions regarding in-service accident during the November 2016 Board hearing, was reviewed. As a rationale, the examiner stated that there is no evidence of any progression, chronicity, recurrence, residuals, or sequelae from service. The examiner further stated that the Veteran's statement from November 2016 Board hearing, and notes about the scar reflected in April 1956, September 1956, August 1957, June 1958, and 1960 were reviewed, however, the examiner was unable to attach any significance to it as there are no detailed records regarding the origin of the scar. The examiner also noted that the March 1954 examination has notation of left shin scar and football injuries. The examiner opined that the degenerative joint disease noted in 1994 and meniscectomy in 2005 are unrelated to the conditions mentioned in 1954. The examiner further explained that there is no documented evidence of aggravation for over 41 years after leaving service. The Board notes that the RO requested the examiner to provide opinion if left knee disability was pre-existed the Veteran's service and whether there is clear and unmistakable evidence that it was aggravated beyond its natural progression during service. Hence, the examiner opined that the Veteran's left knee [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 as noted on the March 1954 enlistment examination. In this regard, the Board notes that the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. The Board finds that the August 1953 and March 1954 enlistment examinations only have notations of left shin/calf bone scar, however, there is no notation of any left knee condition or disability. Therefore, the Board finds a preexisting disorder of the left knee was not noted upon entry into service, hence, presumption of soundness attaches and the issue of entitlement to service connection for a left knee disability on direct basis can be addressed and adjudicated in the Veteran's case. The Board notes that the evidence of record contains a November 2006 correspondence from a private physician, in which the physician stated, "After your surgery I felt that your knee problem was a longstanding problem most likely due to your injury several years ago." The private physician did not provide any rationale or did not refer to any particular injury that caused the Veteran's current knee disability. Also, the physician did not indicate if his opinion was about left or right knee. The Board assigns a greater probative value to the January 2022 VA medical opinion as compared to the November 2006 private physician opinion, in which the physician vaguely stated that the Veteran's knee conditions are related to old injury without providing any details about the alleged injury or rationale supporting the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board has considered the Veteran's statement in support of the claim, including his testimony at the November 2016 Board hearing, where he asserted that he injured his left knee during service and his current left knee conditions are related to this injury. The Board finds that the Veteran is competent in reporting that an injury occurred in service, and he may sincerely believe that his left knee disability is related to his service. However, he is not competent to provide an opinion that his current left knee disability is related to his active service, including the in-service injury. The issue is medically complex, and the Veteran has not demonstrated that he has the medical education, training, or expertise to make such a conclusion. Bostain v. West, 11 Vet. App. 124, 127 (1998) (finding that assertions, in the absence of evidence that a veteran has the expertise to render opinions about medical matters, are not probative). Hence, the Board gives more probative weight to the January 2022 medical opinion because the examiner provided adequate rationale after reviewing relevant evidence of record. Hence, the Board finds that the Veteran's current left knee disability is not directly related to his service, including the left knee scar noted during the service and the alleged in-service left knee injury. As noted above, the Veteran has been diagnosed with the left knee arthritis. During the December 2019 VA examination, the examiner noted left knee arthritis with onset as of 1993. The Board notes that arthritis is enumerated as one of the chronic diseases under 38 C.F.R. § 3.309(a); and can also be analyzed for entitlement to presumptive service connection for a chronic disease. 38 C.F.R. § 3.309(a). If a Veteran has a current, chronic disability listed in 38 C.F.R. § 3.309(a), a nexus can be presumed if there is evidence of chronic disease manifested as such during active service; or chronic disease manifested to a compensable degree within a specified period after active service (usually 1 year); or if there is competent, credible, and persuasive evidence of continuity of symptomatology since active service. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The competent and probative evidence of record does not demonstrate that the Veteran's left knee arthritis manifested to a compensable degree within one year of active duty service. The Veteran's service and other treatment records do not indicate that the Veteran was diagnosed with left knee arthritis during service or within one year of separation from the service. As noted above, the service treatment records documented left knee scar, however, there is no indication that the Veteran was diagnosed with left knee arthritis during service or within one year of the service. The first indication of arthritis in post service treatment records is from April 1992, in which a private physician noted that the Veteran has minimal degenerative arthritis in both knees. As far as continuity of symptomatology is concerned, there is no continuity of pain, or any other symptoms related to the Veteran's left knee disability since the Veteran's service. The service treatment records, including the June 1964 separation examination did not note any pain or any other symptoms related to the Veteran's left knee disability. The first reported pain by the Veteran is noted in an April 1992 private treatment record, which is twenty eight years after the discharge from active service. The Veteran reported that he had pain in knee more in left than right, and he had this pain since 1972, which is eight years after the discharge from the active service. Consequently, the Board does not find a continuity of symptomatology of the left knee disability since service; hence, the chronic diseases presumption does not apply in this case under 38 C.F.R. § 3.309(a). After reviewing the evidence of record and based on the above analysis, the Board concludes that the Veteran's left knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease, including the left knee scar noted during the service and the alleged in-service left knee injury. The evidence of record is persuasively against the claim, consequently, entitlement to service connection for a left knee disability is denied. REASONS FOR REMAND Entitlement to service connection for a right knee disability is remanded. At the November 2016 Board hearing, the Veteran testified that he injured his right knee during active duty while he was stationed at Santa Ana, Marine Corps air facility. Also, in the December 2014 VA Form 9, Appeal to the Board, the Veteran asserted that he injured both of his knees during active service. The Veteran asserts that his right knee disability is related to the in-service injury. In the May 1994 VA examination report, the examiner noted the Veteran's assertions that his right knee is degenerating due to compensatory stress from guarding the left knee. To determine the nature and etiology of his right knee disability, the Veteran was afforded a VA examination and a VA medical opinion was obtained in May 2019, in which the examiner opined that the Veteran's current right knee disability is less likely than not related to his active service. As a rationale, the examiner stated that the service treatment records are silent regarding right knee injury during active service. In the December 2021 remand, the Board found the May 2019 VA medical opinion inadequate because the examiner based the negative nexus opinion solely on lack of contemporaneous medical evidence. Hence, the Board remanded the matter in December 2021 to obtain a new VA medical opinion on the etiology and nature of the Veteran's right knee disability. The Board directed the examiner to address the April 1992 private treatment note stating that there appeared to be a bifid patella on the right but not the left, about which the private physician stated, "I would suppose it is remotely possible that this could represent old fracture." Consequently, the Veteran was afforded another VA examination for his right knee condition and a VA medical opinion was obtained in January 2022, in which the examiner opined that the Veteran's right knee disability was less likely than not incurred in service. The examiner indicated that all relevant evidence of record, including service treatment records and the Veteran's contentions and his testimony at the November 2016 Board hearing regarding his in-service accidents, was reviewed. The examiner stated that there is no evidence of any progression, chronicity, recurrence, residuals, or sequelae from service. The examiner also opined that there is no nexus about left knee causing right knee condition. Regarding bifit/bipartate patella on the right that was noted in the April 1992 private treatment record, the examiner stated that bifid/bipartate patella is a congenital condition. The examiner explained that a bipartite patella forms when a portion of the patella does not completely heal along the bony edges of the patella. Most commonly, this is in the upper and outer (superolateral) portion of the patella. Bipartite patella is quite common, usually asymptomatic, and is found in 2% of the population on x-rays. The examiner further stated that he is unable to assess regarding 1950's and 1960's and imaging of bifid patella in 1992, it is indicative of congenital condition and not a new or old fracture, the onset of symptoms and worsening dates back to 2005 with meniscectomy by speculation with underlying degenerative joint disease of both knees noted in 1994. Regarding a congenital condition, the Board notes that VA distinguishes between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. See VAOPGCPREC 82-90, VAOPGCPREC 67-90. A defect differs from a disease in that a defect is "more or less stationary in nature", while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90. In this regard, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries." 38 U.S.C. §§ 1110, 1111; 38 C.F.R. § 3.303(c); Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). However, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. As described above, in the January 2022 VA medical opinion, the examiner noted that the Veteran's right knee bifid/bipartate patella is a congenital condition. Therefore, the Board finds that a remand is warranted to obtain an addendum opinion to determine whether bifid/bipartate patella is a congenital disease or defect, and whether it is at least as likely as not that the Veteran's current right knee disability is an additional disability due to superimposed alleged in-service injury. Therefore, on remand, an addendum opinion should be obtained to determine the etiology and nature of the Veteran's right knee disability. The matter is REMANDED for the following action: 1. Forward the claims file and a copy of this remand to the VA clinician who rendered the January 2022 VA medical opinion, if that clinician is not available, to another similarly qualified VA clinician to obtain an addendum medical opinion on the nature and etiology of the Veteran's diagnosed right knee disability. 2. After reviewing the claims file and copy of this remand, the examiner should address the following: (a) If, and only if, the Veteran's right knee bifid/bipartate patella is a congenital defect, the examiner must state whether it is at least as likely as not (50 percent or greater probability) that the Veteran suffers from an additional right knee disability due to superimposed disease or injury that was incurred in service, including the alleged right knee in-service injury. (b) If, and only if, the Veteran's right knee bifid/bipartate patella is a congenital disease, the examiner must state whether the right knee bifid/bipartate patella clearly and unmistakably pre-existed active service. (c) If, and only if, the Veteran's right knee bifid/bipartate patella is a congenital disease which clearly and unmistakably pre-existed active service, the examiner must state whether right knee bifid/bipartate patella was clearly and unmistakably not aggravated (i.e., permanently worsened beyond the natural progress of the disease) during active duty service. (d) If by answering the above questions, the examiner finds that the Veteran's right knee bifid/bipartate patella pre-existed his service, and has been aggravated by or during the Veteran's active service; then the examiner should opine whether it is at least as likely as not that any of the current right knee conditions represent a continuation of the in-service aggravation of the right knee bifid/bipartate patella. In providing the above opinions, the examiner is advised to consider and address the evidence associated with the claims file with entries dated: (i) 11/23/2016, titled "Hearing Transcript" that contains the Veteran's contention that he injured his right knee during active duty while he was stationed at Santa Ana, Marine Corps air facility; (ii) 08/17/1992, titled "Medical Treatment Record Non-Government Facility" page 41 of 58 that contains an April 1992 private treatment record in which the examiner noted that the Veteran has bifid patella on the right but not on the left. A complete rationale for the opinions rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, if the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.