Citation Nr: 23009331 Decision Date: 02/14/23 Archive Date: 02/14/23 DOCKET NO. 17-50 106A DATE: February 14, 2023 ORDER Entitlement to service connection for internal derangement of right knee (now also claimed as painful joints and degenerative arthritis) (right knee disorder), to include as due to service-connected left knee, is denied. REMANDED Entitlement to service connection for a right foot disability, status post-operative, is remanded. FINDING OF FACT The evidence of record is persuasively against a finding that a right knee disorder had onset in active service or is otherwise causally related to active service, to include as due to the service-connected left knee disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran perfected this appeal from a November 2011 rating decision. On initial review, the Board denied several claims and remanded the right knee and right foot issues to the Agency of Original Jurisdiction (AOJ) for additional development. As discussed below, the Board finds substantial compliance with the remand directives as concerns the right knee. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remand also included issues of service connection for a missing tooth and a skin disorder. While the case was on remand, in a November 2022 rating decision, the AOJ granted those issues. See 11/15/2022 Rating Decision. Hence, they are not before the Board, and they will not be discussed below. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). In January 2022 the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. A transcript of the hearing is of record and has been reviewed. See 01/27/2022 Hearing Transcript. 1. Entitlement to service connection for right knee disorder. Legal Requirements Generally, to establish a right to compensation for a present disability, a veteran must 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may 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). Service connection may also be granted if there is evidence of a chronic pain that impairs earning capacity, if it is shown to have existed at the time of separation from active service. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability that is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Any worsening need not be chronic or permanent. Instead, any flare-ups of the claimed disorder that impair earning capacity and are due to a service-connected disability is sufficient to prove a secondary claim. In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); see also 38 C.F.R. § 3.102. The Veteran is fully competent to testify to and to provide written statements related to his claim that describe his symptoms and the history of his claimed disorder. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also 38 C.F.R. § 3.159(a)(2). Discussion The service treatment records (STRs) note instances where the Veteran complained of bilateral knee pain. See 10/13/2014 STR-MED, P. 2, 17. However, only the left knee was diagnosed with pathology. The Veteran eventually was medically discharged due to his low back and left knee. The AOJ arranged an examination to assist the Veteran. See 38 C.F.R. § 3.159(c)(4). The examination report (06/20/2013 C&P Exam, 2nd Entry, P. 8-14) reflects no notation that the Veteran reported any history related to his right knee, other than he indicated that he also had a right knee condition. Id. P. 2. The examiner noted that the diagnosis of internal derangement was a diagnosis of exclusion. Id. P. 1. The AOJ asked the examiner to opine if right knee arthritis was linked to the left knee strain. The June 2013 DBQ notes that there was no X-ray evidence in the file that was related to the right knee. Id. P. 15. Nonetheless, the examiner opined that it was not medically known for right knee degenerative joint disease or arthritis to occur secondary to a left knee strain; and neither was it known to occur secondary to treatment for a contralateral limb (left knee). Id. P. 16; see also 07/19/2013 CAPRI; 07/26/2013 C&P Exam. In the 2022 Board decision, the Board determined that the examiner's opinion was inadequate, as the examination report reflected that he misunderstood the correct basis of the Veteran's claim, and his opinion did not fully address secondary service connection, in that aggravation was not addressed. See 07/14/2022 BVA Decision, P. 28, 29. Hence, the Board directed the AOJ to obtain another opinion that addressed those missing facets, and the AOJ complied. The AOJ request asked the examiner to also address the Veteran's claim that his right knee disorder was due to his having to overcompensate for the left knee. The knee DBQ (10/19/2022 C&P Exam, 7th Entry) reflects that the examiner noted a diagnosis of right knee strain and internal derangement. The Veteran reported right knee pain and patellar snapping, but there is no indication that he reported any history related to his right knee. The examiner noted that the objective findings on clinical examination did not include an antalgic gait. Id. P. 14. The examiner opined that it is not at least as likely as not that the Veteran's right knee disorder had onset in active service, as the review of the claim file, to include the STRs, revealed no basis for a causal connection. Further, based on the review, the examiner opined that the right knee disorder was due to an injury sustained several years after the Veteran's active service. Id. P. 6. Regarding secondary service connection, the examiner opined that it was not at least as likely as not that the service-connected left knee caused the right knee disorder, as the right and left knee conditions are not related pathos-physiologically or anatomically to each other. The examiner opined further that the right knee was not worsened by the left knee, as examination revealed no objective evidence of an antalgic gait pattern or weight shifting during the examination. Id. The Board finds that the examiner reviewed the claim file and the examination results and provided a clear rationale for the opinion on direct and secondary service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Hence, the Board finds the opinion adequate for appellate review purposes, see Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), and finds further that the AOJ substantially complied with the remand directive. The Board also finds that the medical opinion is fully supported by the evidence of record. The Board acknowledges that the Veteran testified at his hearing that he fell during basic training and twisted his right knee and right ankle, but his representative corrected him to mean the right foot along with the knee. He conceded, however, that with time his focus was more on his left knee. Hearing Transcript, P. 28. In the July 2022 decision, the Board found that there were significant issues regarding the reliability of the Veteran's recall. The Board finds that the objective evidence of record, to include the medical opinions of record, is persuasively against the Veteran's lay evidence related to the right knee. The Board is mindful that the Veteran may believe that his right knee disorder is due to his overcompensating for his left knee. Nonetheless, while he is competent to report and testify to his symptoms and history of the disorder, the Board finds that opining on etiology, especially several years after the fact, require medical training. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also 38 C.F.R. § 3.159(a). There is no evidence that the Veteran has medical training. Hence, any opinion he may have is not competent and of no probable value. Id. Based on the evidence set forth above, the Board finds that the evidence of record is persuasively against a finding that his right knee disorder had onset in active service or is otherwise causally connected to active service, to include as due to the service-connected left knee. The evidence is persuasively against a finding that the left knee caused or has worsened the right knee. Hence, the Board is constrained to deny the claim on a direct and secondary basis. 38 C.F.R. §§ 3.303, 3.310. Since the evidence is persuasively against the claim, there is no reasonable doubt to resolve. Lynch, 999 F.3d 1391. REASONS FOR REMAND 1. Entitlement to service connection for right foot disability is remanded. The July 2022 Board remand directed the AOJ to arrange an examination of the right foot, to include an opinion on whether the currently diagnosed disorder had onset in active service or is causally connected to active service. The AOJ arranged the examination as directed, but the Board finds that the examination was inadequate. Hence, there was not substantial compliance. The examination report (10/19/2022 C&P Exam, 3rd Entry) noted the Veteran's report that he twisted his right ankle in 1998, and that the twist fully resolved. Id. P. 2. The examiner noted that the STRs were silent for any right foot condition. See 10/19/2022 C&P Exam, 1st Entry, P. 2. The Board finds that the examination report is contrary to the evidence of record. First, the Veteran testified at his hearing that he injured his right foot in basic training, and that a walking boot was applied as treatment. Second, even if the Veteran inaccurately reported his history at the examination, treatment for right foot stress is documented in the STRs. See 10/13/2014 STR-Med, P. 58. Apparently, the examiner missed the noted entry. In any event, another examination is needed for an opinion based on an accurate review of the claims file. The matters are REMANDED for the following action: Send the claims file to the clinician who examined the Veteran in October 2022 and provided the negative nexus opinion, or another equally qualified clinician if the original examiner is not available. Ask the examiner to review the claim file and to opine whether it is approximately at least as likely as not that the Veteran's currently diagnosed right foot disorder, status post-operative, had onset in active service or is otherwise causally connected to active service. In responding, the examiner's attention is directed to 10/13/2014 STR-Med, P. 58, where the in-service incident and treatment is noted. Inform the examiner that the claim file must be reviewed, and that a full explanation must be provided for the opinion rendered. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Snyder, William T. 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.