KNEE IMPAIRMENT OF

JAMES L. MARCH · 2021 · Case ID: 21011142

MIXED

Summary

The Veteran, who served in the Army from May 1980 to August 1980 and June 1981 to August 1981, appeals the denial of service connection for bilateral knee disabilities and lumbosacral disability, claiming they were secondary to his service-connected bilateral pes planus. The Veteran's pes planus was aggravated during service, and he received a service connection for it. For the left and right knee claims, the Board found the evidence in equipoise between the Veteran's private medical opinion, which linked the knee disabilities to pes planus, and the VA examiner's opinion, which attributed them to age, obesity, and post-service injuries. Applying the benefit of the doubt, service connection for both knees was granted. The lumbosacral disability claim was remanded because the existing medical opinions did not adequately address whether the Veteran's obesity, which was linked to his lumbosacral disability, was proximately caused or aggravated by his service-connected pes planus. The Board requires an addendum opinion to clarify this secondary service connection pathway.

Rationale

Evidence in equipoise between private opinion linking knee to pes planus and VA opinion linking to age/obesity/post-service injury; Benefit of the doubt applied due to equipoise; Contemporaneous service records showing asymptomatic pes planus have little probative value as pes planus was aggravated in service

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

18-47 991

Full Decision Text

Citation Nr: 21011142
Decision Date: 03/01/21 Archive Date: 03/01/21

DOCKET NO. 18-47 991
DATE: March 1, 2021

ORDER

Service connection for left knee, to include as secondary to service-connected bilateral pes planus is granted.

Service connection for right knee, to include as secondary to service-connected bilateral pes planus is granted.

REMANDED

The issue of service connection for lumbosacral disability, to include as secondary to service-connected bilateral pes planus is remanded.

FINDINGS OF FACT

1. Resolving doubt in favor of the Veteran, his left knee disability is proximately due to his service-connected bilateral pes planus.

2. Resolving doubt in favor of the Veteran, his Veteran’s right knee disability is proximately due to his service-connected bilateral pes planus.

CONCLUSIONS OF LAW

1. The criteria for service connection for left knee disability as secondary to service-connected bilateral pes planus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

2. The criteria for service connection for right knee disability as secondary to service-connected bilateral pes planus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from May 1980 to August 1980 and from June 1981 to August 1981.

These matters come before the Board of Veterans’ Appeals (Board) from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in April 2018 and a Statement of the Case (SOC) was issued in September 2018. The Veteran perfected an appeal by submitting a timely VA Form 9 in October 2018.

The Veteran and his representative appeared in a June 2020 hearing. A transcript of that hearing has been associated with the record.

Service Connection

Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a 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).

Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition is also compensable under 38 C.F.R. § 3.310(a).

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. at 54.

1. Service connection for left knee, to include as secondary to service-connected bilateral pes planus

2. Service connection for right knee, to include as secondary to service-connected bilateral pes planus

The Veteran contends that his bilateral knee disabilities were caused by his service-connected bilateral pes planus. Specifically, the Veteran contends that his bilateral pes planus caused him to gain weight that caused his knee disabilities.

Factual Background

Service
Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. at 54.

1. Service connection for left knee, to include as secondary to service-connected bilateral pes planus

2. Service connection for right knee, to include as secondary to service-connected bilateral pes planus

Factual Background

Service treatment records show that the Veteran had asymptomatic pes planus at the time of enlistment medical examination in April 1980. He weighed 225 pounds at the time. In June 1980, the Veteran was found overweight at 230.5 pounds and when he complained of callouses on both of his feet, he was referred to podiatry for shaving of callouses. In August 1980, the Veteran stated that he had foot trouble in his report of medical history and weighed 195 pounds. In May 1981, the Veteran weighed 238 to 230 pounds. In November 1981, the Veteran reported that he did not have any foot trouble in his report of medical’ history and weighed 240 pounds.

In a January 2017 rating decision, the Agency of Original Jurisdiction (AOJ) and granted service connection for bilateral pes planus with metatarsalgia and callus formation following the Board’s decision granting service connection. The Board found that the Veteran’s pes planus existed prior to service, that there was a current diagnosis, that it was aggravated by active service based in part on the Veteran’s competent statements of increased symptoms.

In December 2017, the Veteran submitted a claim of service connection for his bilateral knees and lumbosacral disability. Medical treatment records from April 2015 showed that the Veteran had advanced osteoarthritis in the right knee. The Veteran reported that he had a fall twisting his right knee, and that he had a history of meniscal surgery in 1986. Medical treatment records from July 2016 show that the Veteran sustained a work injury in October 2014 to his left knee and that an MRI examination in November 2014 revealed moderate arthritis. In November 2016, a private practitioner opined that the Veteran’s symptoms would improve if the Veteran had lost weight and that currently his weight outweighed potential benefits from total knee replacement. The Veteran also submitted a statement contending that his bilateral knee disabilities and back disability were due to his service-connected bilateral pes planus.

In January 2018, the Veteran was afforded a VA examination for his back and knees. The Veteran was diagnosed as having degenerative arthritis of the spine. The examiner opined that the Veteran’s bilateral knee disabilities were less likely than not proximately due to bilateral pes planus and cited medical literature citing advancing age and morbid obesity as one of the most significant risk factors for development of osteoarthritis.

The AOJ denied the Veteran’s claims in a January 2018 rating decision, and the Veteran submitted an NOD with a private medical opinion in April 2018. The private practitioner opined that the Veteran’s service-connected bilateral pes planus was a significant contributing factor in the Veteran’s developing arthritis of the knees. As rationale, the private practitioner cited medical literature showing up to a 30 percent increase in knee arthritis associated with patients who have pes planus.

In August 2018, a VA examiner discussed the April 2018 private medical opinion. The examiner found that the private practitioner did not discuss the Veteran’s service treatment records nor the workplace injuries, and that the medical literature on arthritis studied adults over the age of 50, which includes adults both younger and older than the Veteran. The examiner cited the Veteran’s obesity as the most significant causal factor for degenerative arthritis of the knees, and that the Veteran weighed 195 pounds at the time of separation in April 1980 with no mention of any chronic or recurrent knee joint condition. The examiner also opined that the Veteran’s weight at the time of enlistment into the Army National Guard in September 1992 was 244 pounds and therefore not obese.

In September 2018, the AOJ issued an SOC denying the Veteran’s claims, and the Veteran submitted a VA Form 9 in October 2018.

In June 2020, the Veteran testified that while he had injuries to his knee at work, that the injuries were due to his bilateral pes planus. The Veteran also attributed his weight gain to his service-connected pes plan
of the knees, and that the Veteran weighed 195 pounds at the time of separation in April 1980 with no mention of any chronic or recurrent knee joint condition. The examiner also opined that the Veteran’s weight at the time of enlistment into the Army National Guard in September 1992 was 244 pounds and therefore not obese.

In September 2018, the AOJ issued an SOC denying the Veteran’s claims, and the Veteran submitted a VA Form 9 in October 2018.

In June 2020, the Veteran testified that while he had injuries to his knee at work, that the injuries were due to his bilateral pes planus. The Veteran also attributed his weight gain to his service-connected pes planus. Three years after joining the National Guard, the Veteran testified that he had again experienced problems with his feet.

Analysis

The evidence is in equipoise as to whether there is a causal link between the Veteran’s bilateral knee disabilities and his active service, to include as secondary to service-connected pes planus.

As discussed above, the April 2018 private medical opinion attributed the Veteran’s bilateral knee disabilities to the Veteran’s service-connected pes planus, while the August 2018 VA examiner attributed the bilateral knee disabilities to the Veteran’s age, obesity, and injuries after discharge. In discussing the April 2018 private medical opinion, the August 2018 VA examiner pointed out that the Veteran’s bilateral pes planus was asymptomatic, that the Veteran did not gain significant weight during service, that the study of patients with arthritis included patients of the Veteran’s age, and that the Veteran had a history of knee injuries after discharge that were not considered by the April 2018 private medical practitioner.

The Veteran, however, is service connected for bilateral pes planus as it was aggravated during service. Thus, contemporaneous medical records showing that the Veteran’s pes planus was asymptomatic at the time of enlistment have little probative value. The Board also notes that the August 2018 VA examiner did not dispute the study cited by the April 2018 private medical practitioner finding a correlation between pes planus and knee arthritis. As such, the Board finds that the two medical opinions, while contradictory, are both adequate and of equal probative weight.

Thus, the evidence is at least in equipoise as to whether the Veteran’s bilateral knee disabilities were caused by the Veteran’s service-connected bilateral pes planus. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Reasonable doubt will be resolved in the Veteran’s favor and thus service connection for left knee disability and right knee disability are granted. See 38 U.S.C. § 5107.

REASONS FOR REMAND

Service connection for lumbosacral disability, to include as secondary to service-connected bilateral pes planus

After a review of the evidence, the Board finds that additional evidentiary development is necessary.

Medical opinion of record agree that the Veteran’s lumbosacral disability was caused by the Veteran’s obesity. Obesity is not a disability per se, and service connection may not be granted for another disability rating proximately caused by obesity. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). Obesity, however, may be an “intermediate step” in a secondary-service-connection analysis when service-connected disability aggravates it. VACOPGCPREC 1-2017 (January 6, 2017).

There are no medical opinions of record that opine that the Veteran’s obesity was caused by service-connected disability, to include bilateral pes planus. Both the April 2018 private medical opinion and the August 2018 VA medical opinion only discussed whether the Veteran’s obesity was directly caused or aggravated by the Veteran’s service without discussing whether it could have been proximately caused or aggravated by the Veteran’s service-connected disability. A VA examination is inadequate when it does not address the medical question at issue in enough detail that the Board cannot make a fully informed evaluation of the claim. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018).

The matter is REMANDED for the following action:

Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s lumbosacral disability. The Veteran’s claims file, including a copy of this decision, should be made available to the examiner.

The examiner should render an opinion as to whether it is at least as likely as not that the Veteran’s lumbosacral disability has been caused or aggravated by the Veteran’s service-connected disabilities, to include bilateral pes planus.

In addressing
issue in enough detail that the Board cannot make a fully informed evaluation of the claim. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018).

The matter is REMANDED for the following action:

In addressing secondary service connection, the examiner must discuss the relationship, if any, between the Veteran’s service-connected disabilities and his obesity and, if warranted, the relationship, if any, between the Veteran’s obesity and lumbosacral disability. The examiner must also discuss any medical opinion of record that he or she does not fully agree with.

The need for another examination is left to the discretion of the examiner offering the addendum opinion.

JAMES L. MARCH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board H. Yun

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.

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