Citation Nr: 23014303 Decision Date: 03/09/23 Archive Date: 03/09/23 DOCKET NO. 17-17 947 DATE: March 9, 2023 ORDER Entitlement to service connection for bilateral knee disability, to include as secondary to service-connected bilateral heel spurs, bilateral plantar fasciitis, and bilateral ankle disabilities, is granted. FINDING OF FACT After resolving reasonable doubt in the Veteran's favor, the diagnosed bilateral knee disability has been shown to be etiologically related to the Veteran's active service, or as secondary to a service-connected disability. CONCLUSION OF LAW In providing the Veteran with the benefit of the doubt, the criteria for entitlement to service connection for bilateral knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Veteran testified before at a Board hearing. The transcript of the hearing is of record. By way of background, in November 2020, the Board remanded the issue on appeal as well as entitlement to service connection for bilateral foot and ankle disabilities. During the appeal process, in a May 2021 rating decision, the RO granted service connection for bilateral foot and ankle disabilities. In February 2022 the Board denied the Veteran's claims for entitlement to service connection for sinusitis and bilateral knee disability. The Veteran appealed only the service connection for bilateral knee disability decision to the U.S. Court of Appeals for Veterans Claims (Court). Thereafter, in September 2022 the Court granted the parties' Joint Motion for Partial Remand (JMPR), which vacated the February 2022 Board decision and remanded the matter for readjudication. Entitlement to service connection for bilateral knee disability, to include as secondary to service-connected bilateral heel spurs, bilateral plantar fasciitis, and bilateral ankle disabilities, is granted. The Veteran contends that his bilateral knee disability had its onset in service. Service connection requires a veteran must show: (1) the existence of a present 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. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110,1131; 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran was diagnosed with bilateral knee tendonitis/tendinosis, left knee meniscal tear, left knee joint osteoarthritis, right knee osteoarthritis status post total right knee arthroplasty, and status post right knee meniscal repair. See January 2020 C&P Exam. The Veteran is currently service connected for bilateral heel spurs, bilateral plantar fasciitis, and bilateral ankle strain. See February 2023 Rating Decision Codesheet. The Veteran's September 1970 entrance report of medical history showed that he experienced a dislocated kneecap 6 months prior to service and that it still bothered him. A March 1971 podiatry report reflected that the Veteran complained of bilateral knee pain and ankle problems, including weakness and pain. The consultation report indicated clinical stress fracture of both heels and radiographic stress fracture of the right tibia. A March 1971 physical profile record reflected stress fracture of the heels. A March 1971 record requested a radiographic report for both heels. A May 1971 record reflected that the Veteran complained about bilateral chronic knee pain. The radiographic report noted no active disease process. A May 1972 STR reflected that the Veteran was involved in a motorcycle accident. An October 1972 STR noted swollen feet with pitting edema of both feet and ankles, as well as a sunburn. The impression was second degree sunburn of the feet and ankles with resultant third degree edema. The January 1973 separation examination did not reflect complaints or findings related to the feet, ankles, or knee. See April 2016 STR Medical. The Veteran was afforded a VA examination in August 2016 for his bilateral knees. At that examination the Veteran reported a history of bilateral knee pain and a recent 2016 right knee replacement surgery. The examiner noted that the Veteran was seen for bilateral knee pain in service and recently received chronic recurrent knee pain treatment in April 2016. The current diagnosis was bilateral knee joint osteoarthritis. The examiner also noted that there was no record of chronic recurrent knee pain documented from the time he left the military to present day. Therefore, the examiner found that it was less likely than not that the Veteran's knee disability was incurred in or caused by his service. See August 2016 C&P Exam. In December 2019 the Veteran was afforded another VA examination for his bilateral knees. The diagnoses were bilateral knee tendonitis/tendinosis, left knee meniscal tear, left knee joint osteoarthritis, right knee osteoarthritis status post total right knee arthroplasty, and status post right knee meniscal repair. The examiner concluded that the claimed condition was at least as likely as not related to service. The examiner's rationale was that the Veteran had reported bilateral foot, ankle and lower leg pain during service which would potentiate degenerative changes and precipitate future injuries, insult, and degenerative changes to those joints as well as adjoining joints due to wear and tear of the joint as well as compensation of opposing joints to alleviate strain on the initial injured joints. The Veteran's military training and duties likely potentiated knee issues due to improper body mechanics, heavy gear, and required physical training. The Veteran stated he had pain in his legs in service. Per MRR he sustained a right tibial stress fracture and bilateral heel stress fractures while in service. He also sustained a motorcycle accident. This record was largely illegible. The records were sparse during service; however, this was during wartime and was not uncommon. The record review showed the Veteran clearly and unmistakably had a lower leg pain during service. Therefore, with Veteran history, MRR and current exam findings, the Veteran's left leg condition was at least as likely as not incurred in or caused by the complaints during service. The same opinion with rationale was provided for the right leg condition. See January 2020 C&P Exam. Ultimately, though favorable, the Board concluded that the December 2019 VA opinion required clarification, and the issue was remanded to obtain a more thorough medical addendum. Specifically, it was unclear what the examiner meant by left and right leg condition. In the rationale, references were made to right tibial stress fracture and bilateral heel stress fractures, but it was unclear how these are related to his current bilateral knee disabilities. See November 2020 BVA Decision. In May 2020 the Veteran testified at a Board hearing that he sought treatment while in service for his bilateral knee disability. Specifically, he stated that blood and fluid were drained from his knees. He stated that he sought treatment for his knees after separation in 1973 as he continued to have fluid trapped around his knees. See May 2020 Hearing Transcript. In the January 2021 VA addendum opinion, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in service injury, event, or illness. Upon review of medical records, the September 1970 enlistment examination showed that he reported that he dislocated his kneecaps prior to entry and that they continued to bother him. In March 1971 he was referred to a podiatry service for continued bilateral knee pain with weakness. A May 1971 x-ray scan of the bilateral knee showed no active disease process. In May 1972, he sustained a motorcycle accident. However, the records were limited if knees were involved at that time. In the January 1973 separation examination, he had normal lower extremities and feet. Interim medical records from 1974 to 2015 were silent for chronic bilateral knee condition. The examiner opined that the osteoarthritis of the bilateral knees found in 2016 was age related and less likely associated from pain and weakness from service. Subsequent medical records were silent for any chronic complaints of the bilateral knees to suggest compensatory process to precipitating early degenerative changes. Moreover, no compensatory process of the bilateral knee was found in relation to lower extremity bilateral ankle and right tibia stress fracture. Due to long health care gap, lack of chronicity and continuity of symptomatology, negative x-ray scan of the knee during service, negative knee condition upon separation, and recent knee and lower leg examination in 2016 and 2019, his bilateral knee disability was deemed new, separate, and remote from service. Therefore, it was less likely than not that the disability had its onset in service or was otherwise etiologically related to service. See January 2021 C&P Exam. The Veteran submitted two private medical opinions from the same provider. In May 2020, his private doctor noted that the Veteran has had significant osteoarthritis at a young age necessitating multiple arthroscopies and a total knee replacement at age 63. Although no one truly knew the etiology of osteoarthritis, chronic joint pain can come from previous injuries. The private doctor further stated that although he was unable to definitively tell the etiology of the Veteran's arthritis, it was certainly plausible and possible that this was either caused by, or certainly significantly worsened by, physical trauma sustained during service. See June 2020 Correspondence. In June 2021, the Veteran's private doctor opined that after reviewing the Veteran's medical records it was at least as likely as not that his osteoarthritis was worsened by his military career. His doctor explained that it was well known to medicine that this type of arthritis can be worsened and complicated by a repetitive or single large trauma. See June 2021 Medical Treatment Record Non-Government Facility. In the Veteran's July 2021 lay statement, he stated that even though he entered service with a dislocated kneecap, he was deemed fit for service, and during service his legs, ankles, and knees deteriorated to the point of being unable to perform the physical training required. He further stated that he continued with training by being shuttled to training and was often confined to the barracks due to his condition. Furthermore, the Veteran addressed the 41 year gap in his medical care history. He explained that he was without medical insurance, lived in extreme poverty, and was addicted to drugs and alcohol, which he used to self-medicate for the pain in his knees, ankles, feet, and his eventual service connected diagnosis of posttraumatic stress disorder. See July 2022 Correspondence. Upon review, the Board finds the December 2019 and January 2021 VA opinions the most probative evidence of record. Specifically, the aforementioned medical opinion from December 2019 is from a competent medical professional who considered all relevant facts and accepted medical principles and provided rationales for the opinions. The Board finds the rationale that noted the reported bilateral foot, ankle, and lower leg pain during service would potentiate degenerative changes and precipitate future injuries, insult, and degenerative changes to those joints, as well as adjoining joints, supports the Veteran's claim. The Board notes the January 2021 VA addendum unfavorable opinion. However, as the evidence is in approximate balance regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the Veteran. Consequently, the Board resolves all reasonable doubt in the Veteran's favor and finds that his current bilateral knee disorder is etiologically related to service or to a service-connected disability. Therefore, service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Garey, Attorney-Advisor 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.