Citation Nr: 22019028 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 17-13 789 DATE: March 31, 2022 ORDER Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for a left knee scar is granted. FINDINGS OF FACT 1. The Veteran's left knee disability is related to an in-service injury. 2. The Veteran's lumbar spine disability was proximately due to the Veteran's service-connected knee disability. 3. The Veteran's left knee scar was incurred in-service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have been met. 38 U.S.C. §§ 1101, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a lumbar spine disability on a secondary basis have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for a left knee scar have been met. 38 U.S.C. §§ 1101, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to January 1969 and from February 1971 to July 1971. The Veteran was in the Army Reserve between periods of active duty and until July 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). This case was most recently remanded by the Board in August 2021 for a new VA opinion on the Veteran's knee disability. The Veteran was afforded a new VA examination in October 2021. Accordingly, the Board finds that the remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for 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). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310(a). Service connection will also be granted on a secondary basis for an additional disability that results from aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310(b). 1. Entitlement to service connection for a left knee disability. The Veteran contends that his knee disability is due to an injury incurred during his first period of service. The Veteran stated that he injured his knee in 1968, and he has had continuous problems with it since. The Veteran has a diagnosis of left knee osteoarthritis and left knee meniscal tear. See October 2021 VA examination. Therefore, the first element of service connection has been met. The Veteran's service treatment records (STRs) show no notations of a left knee condition on his induction examination in April 1968. As such, the Veteran is presumed sound as to his left knee for his first period of service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Veteran's separation examination in December 1968 does not indicate any problems with the Veteran's knee. In February 1971, the examination on induction noted left knee pain and swelling. The doctor noted a history of a knee injury in 1967 while in the Army, and that the Veteran was treated at Martin Army Hospital. The x-rays of the left knee were negative, and the doctor found no physical cause to reject the Veteran from service. On his report of medical history on induction, the Veteran reported lameness and stated that his knee was operated on. The VA requested records from Martin Army Hospital, but no records were located. See November 2019 Correspondence. The record contains a February 2019 statement from the Veteran, submitted with his VA Form 9. The Veteran reported that during basic training he injured his left knee and surgery was performed at Martin Army Hospital at Fort Benning, Georgia. He stated the knee pain continued and altered his gait after discharge from his first period of service. During his induction examination into the second period of service, the Veteran reported knee pain, and it was noted on examination. The Veteran stated that the medical officer mistakenly wrote "1967" as the date of the injury, as this was before he entered service. The Veteran stated that the notation clearly indicates this happened in service, and the correct year was 1968. He reported that when he was released from active duty for both periods, he did not report or seek medical treatment for his impairments because it would prolong his discharge and place him on medical hold status. The Board notes that the Veteran was approved for a Hardship discharge in both 1969 and 1971 due to his parents' health issues. A February 2017 lay statement from the Veteran's daughter stated that she has discussed his time in service with him at length. He reported he severely injured his left knee while in service, performing a training exercise on an obstacle course. This left him with an abnormal gait, which impacted his lower back, and has continued to get worse since service. She noted the report on induction in the Veteran's STRs to his second period of service, indicating knee issues that were sustained during his first enlistment. The record also contains a February 2016 lay statement from the Veteran's wife, who reported that the Veteran has consistently struggled with knee pain. The Board finds the Veteran's statements regarding his 1968 in-service injury credible and probative. While the Veteran's STRs indicate the injury occurred in 1967 (prior to service), they also state that the injury occurred during service. Considering the internally inconsistent statements in the STRs, it is possible that the date was recorded incorrectly, as the Veteran contends. Resolving reasonable doubt in favor of the Veteran, the Board finds the second element of service connection has been met. The Veteran attended an October 2021 VA examination. The examiner stated that it was at least as likely as not that the Veteran's osteoarthritis and torn meniscus of the left knee were at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran's STRs indicate the Veteran reported an injury to his left knee in 1967 at the February 1971 induction examination, and an April 1971 examination noted two two-inch scars on the medial left knee. While the opinion portion of the examinations states that the STRs show the reported knee injury was in 1967, the medical history portion of the examination note that the injury was in 1968. The examiner was asked in a request for an addendum opinion to reconcile his opinion with the fact that the separation examination in 1971 was silent for any knee complaints. The VA examiner stated that the examiner at separation most likely did not consider this significant enough to document, or that the Veteran may have had more pressing complaints. As noted above, the Veteran provided an explanation for not reporting the knee condition on separation; he did not want to delay his discharge, which the Board finds reasonable given the evidence that he received two Hardship discharges due to his parents' health. The Veteran attended a VA examination in June 2015, but the examiner did not provide and opinion on the etiology of the current disability. The record contains a November 2015 negative VA medical opinion. However, the examiner based his opinion on the fact that the induction examination noted knee problems in 1967, which was before active service. The examiner did not consider the Veteran's statements that this date was misreported, and the statement at time of induction that the injury happened in service. The Veteran also attended a December 2019 examination, however, as noted by the August 2021 remand, this opinion is inadequate for adjudication as the examiner did not consider all diagnosed knee disabilities and did not provide adequate rationale. As such, the November 2015 and August 2021 opinions are accorded little weight. The Board finds the October 2021 VA examiner's opinion the most probative evidence of record. While there is some confusion over when the initial knee injury occurred due to a potential error in the induction examination, the examiner noted in the medical history that the injury occurred in 1968 and that the current disabilities were at least as likely as not due to the Veteran's in-service injury. In addition, the Veteran provided a reasonable explanation for why knee problems were not noted at separation from either period of service. There is no probative evidence of record showing that the Veteran's left knee disability is not related to his service. Therefore, the persuasion of the evidence is in favor of finding that the Veteran's left knee disability is related to his in-service injury. The claim of service connection for a left knee disability is granted. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that the October 2021 VA examiner found that the Veteran had a left knee scar that was incurred in 1968, during service, at the same time as the knee injury. The left knee scar is associated with the underlying claim of service connection for a left knee disability, and the persuasion of the evidence supports finding that it was incurred in service. As such, service connection is granted for a left knee scar. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a lumbar spine disability The Veteran has a diagnosis of degenerative disc disease of the thoracolumbar spine. See June 2015 VA examination. Therefore, the first element of service connection has been met. The Veteran contends that his back disability is due to his knee disability, for which service-connection has been granted in this decision. He stated that his knee disability has caused a limp and difficulty walking, which has caused back pain. The Veteran attended a VA examination in June 2015. The examiner found that the Veteran's back disability was at least as likely as not due to his knee disability. The examiner stated that the knee condition likely caused a re-distribution of weight on his standing posture and ambulation, which resulted in the lumbar condition. The Board finds this VA opinion probative as the examiner provided adequate rationale and explanation for his opinion. (Continued on the next page) Therefore, the persuasion of the evidence is in favor of finding that the Veteran's back disability is caused by his service-connected left knee disability. Entitlement to service connection for a back disability is granted. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Patrick, 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.