Back to BVA DecisionsDENIEDSpecial Benefit NO SPECIAL BENEFIT Docket No. 17-37 763
KNEE IMPAIRMENT OF
M. DONOHUE · 2024 · Case ID: 24012505
Summary
The veteran, who served from September 1970 to April 1973, appeals the denial of service connection for a left knee disorder and a low back disorder. Both conditions were claimed as secondary to his service-connected right knee disorder, and alternatively, as directly related to in-service events, including falling off ladders. Service treatment records showed no complaints or treatment for the left knee or spine, and only minimal patellofemoral crepitus in the right knee during service. Post-service records indicated a left knee replacement due to arthritis and spine procedures, but the veteran did not provide all private treatment records. Multiple VA examinations were conducted, with most concluding that the left knee and spine disorders were not related to service, not caused or aggravated by the service-connected right knee disorder, and were likely age-related. The Board found the persuasive evidence against service connection, noting the lack of in-service complaints, continuity of care, and adequate nexus opinions supporting the veteran's claims. The Board assigned greater weight to the medical opinions, particularly those from November/December 2021 and December 2023, which found no relationship to service or aggravation by the right knee disorder. Service connection for both the left knee and low back disorders was denied.
Rationale
No in-service complaints or treatment for left knee; No continuity of care since service; Medical opinions found no nexus to service or right knee disorder
Full Decision Text
Citation Nr: 24012505 Decision Date: 03/22/24 Archive Date: 03/22/24 DOCKET NO. 17-37 763 DATE: March 22, 2024 ORDER Service connection for a left knee disorder, to include as secondary to a service-connected right knee disorder, is denied. Service connection for a low back disorder, to include as secondary to a service-connected right knee disorder, is denied. FINDINGS OF FACT 1. The Veteran's left knee disorder did not incur during service, did not manifest within a year of service separation, has not been chronic and continuous since service separation and is not caused by or aggravated by a service-connected disability. 2. The Veteran's low back disorder did not incur during service, did not manifest within a year of service separation, has not been chronic and continuous since service separation and is not caused by or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disorder, to include as secondary to a right knee disorder, are not met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.310. 2. The criteria for service connection for a low back disorder, to include as secondary to a right knee disorder, are not met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to April 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in March 2020, September 2021, March and September 2022, and March 2023 and were remanded for additional development. The case is once again before the Board. Duty to Assist In March 2023, the Board requested the Agency of original Jurisdiction (AOJ) obtain an opinion as to whether the Veteran's left knee and spine disorders had casual origins in service or were caused or aggravated by his service-connected right knee disorder. In April and December 2023, opinions were obtained. The reports reflect that the examiner reviewed the Veteran's past medical history, considered his statements, and rendered appropriate opinions consistent with the remainder of the evidence of record. Supporting rationale was also provided for the opinions proffered. Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board therefore concludes that the opinions are adequate for adjudication purposes. 38 C.F.R. § 4.2. The Veteran has not contended otherwise. Additionally, the Veteran stated that he received private treatment for his left knee and spine disorders. On the Veteran's January 2015 VA Form 21-526EZ, in an August 2015 letter, in the March 2022 Board remand and subsequent development letter, and in a September 2022 Board remand and subsequent development letter, the Veteran and his attorney were notified that they should submit any private treatment records relevant to the claim or in the alternative, they could submit authorization to allow VA to obtain any identified records on his behalf. The Veteran submitted a few treatment records from 2010 through 2011; however, he did not submit nor authorize VA to obtain any additional records on his behalf. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the Veteran was aware of the need to either submit the pertinent records or authorize the release of any additional outstanding treatment records to VA and did neither, the Board will proceed with adjudicating the claim on appeal based on the available evidence of record. Service Connection Generally, to establish service connection, a claimant 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. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA has established certain rules and presumptions for chronic diseases, such as arthritis. 38 C.F.R. §§ 3.303(b), 3. outstanding treatment records to VA and did neither, the Board will proceed with adjudicating the claim on appeal based on the available evidence of record. Service Connection Generally, to establish service connection, a claimant 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. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA has established certain rules and presumptions for chronic diseases, such as arthritis. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) evidence that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Left knee The Veteran seeks service connection for his left knee disorder. He initially asserted that his left knee disorder was caused by his service-connected right knee disorder. In the alternative, he has asserted that his left knee is related to falling off of ladders in service. Service treatment records show no complaints or treatment related to the left knee, or any injuries related to falling off of a ladder. During a January 1973 knee examination, bilateral minimal patella femoral crepitus - with right greater than left -was noted. Ultimately, the Veteran was medically discharged due to a right knee disorder. Post-service treatment records indicate that the Veteran had a left total knee replacement in May 2010. Treatment records related to that procedure indicate that the Veteran had chronic knee pain secondary to arthritis, but the record does not indicate when the arthritis was initially diagnosed. As discussed above, the Veteran has not submitted or authorized VA to obtain all of his private treatment records. When describing the onset of his symptoms, the Veteran reported the onset of his left knee pain as 1985. See July 2017 VA knee examination. January 2015 VA treatment records indicate that the Veteran's gait limitations are due to his multiple sclerosis (MS) and spine disorder. The Veteran presented for multiple examinations in relation to this claim. In June 2013, a VA examiner found the Veteran's left knee did not cause the Veteran's right knee disorder. At that time, there was some confusion as to which knee was injured in-service. As discussed in the September 2021 Board remand, the opinion was not completely adequate for rating purposes because it was based on an inaccurate fact. In June 2017, a VA examiner found the Veteran's left knee was not caused by his right knee disorder. The Veteran reported that his left knee pain began in 1985. The examiner stated that there was no medically acceptable mechanism that would establish a nexus. Hereto, the Board found that the opinion was based on an inaccurate factual premise. See September 2021 Board remand. In November and December 2021, a VA examiner again found that the Veteran's left knee disorder was not related to his service. The examiner stated that he was unable to find any evidence to support a relationship. The examiner further found that the Veteran's left knee was not caused by the Veteran's service-connected right knee disorder. The examiner explained that the medical literature did , a VA examiner found the Veteran's left knee was not caused by his right knee disorder. The Veteran reported that his left knee pain began in 1985. The examiner stated that there was no medically acceptable mechanism that would establish a nexus. Hereto, the Board found that the opinion was based on an inaccurate factual premise. See September 2021 Board remand. In November and December 2021, a VA examiner again found that the Veteran's left knee disorder was not related to his service. The examiner stated that he was unable to find any evidence to support a relationship. The examiner further found that the Veteran's left knee was not caused by the Veteran's service-connected right knee disorder. The examiner explained that the medical literature did not support a relationship between opposite limbs unless there was paralysis or a shortening of the limbs that would result in a lurching type of gait. Additionally, the examiner reasoned that the left knee was not aggravated beyond its natural progression because the right knee disorder did not result in a lurching type of gait or paralysis. The examiner concluded that the left knee disorder was the result of the natural aging process. In March 2022, the Board found that these opinions did not adequately address direct service connection or the aggravation element of secondary service connection. In May 2022, a VA examiner found that the Veteran's left knee disorder was less than likely related to his service or caused or aggravated by his service-connected right knee disorder. The examiner reasoned that the Veteran's reported symptomology and corresponding records did not establish a relationship between the Veteran's service or service-connected right knee disorder and concluded that the Veteran's left knee disorder was more likely age related. In September 2022, the Board determined that these opinions were based on incomplete medical records, notably, 2022 VA records and private treatment records. Additionally, the Board recognized that the prior Board remand used the improper standard of "permanent" aggravation in its remand instructions. In this regard, it was noted that despite the improper instruction, the examiner used the proper standard, but again requested a new opinion to make certain the correct standard was applied. In December 2022, a VA examiner again found that the Veteran's left knee disorder was less likely than not related to his service. The examiner concluded that there was no credible indication of an in-service injury because the Veteran's statements contradicted the wife's statements. Additionally, the examiner found the left knee disorder was not caused or aggravated by the service-connected right knee disorder. The examiner explained that the symptomology and progression of the left knee disorder did not present as would be expected if it was caused or aggravated by a right knee disorder. The examiner concluded that the Veteran's left knee disorder was likely age related. As discussed in the March 2023 Board remand, the opinion related to direct service connection was incomplete because it did not contain sufficient rationale to address the evidence of record and the secondary opinion appeared to somewhat rely on an inaccurate fact. In April 2023, a VA examiner found the Veteran's left knee was not related to his service, or caused or aggravated by his service-connected right knee. The examiner stated that after reviewing the record, there was no pathology to warrant a diagnosis. In December 2023, the examiner reiterated her finding that it was less than likely that the Veteran's left knee disorder was related to his service. The examiner found that the evidence did not support a relationship. The examiner reasoned that the Veteran's left knee arthritis, which resulted in a left knee replacement, was not the likely outcome for the in-service injury described by the Veteran and his spouse, and documented in the record. The examiner found that the injury in service would not have resulted in the need for a knee replacement years later. The examiner explained that the pathologies of the Veteran's current injury and reported in-service injury do not align. The examiner also found that the Veteran's left knee was not caused or aggravated by his right knee disorder - explaining that the medical literature does not show pathoanatomical correlations or causation between the opposing joints. The Board finds that the persuasive evidence is against finding that the Veteran's left knee disorder manifested in service or within a year of service or was caused or aggravated by his service-connected right knee disorder. The Veteran reported that his left knee disorder had its onset in 1985, over ten years after his service, and the record does not demonstrate a continuity of care since service. The Board has considered the statements made by the Veteran, his spouse and fellow shipmate's that his left knee condition is related to his service, or his service-connected right knee. While they are competent to describe observable events, such as walking with an awkward gait, they are not competent to provide opinions as to the etiology of such conditions. Such determinations require specialized training which they are not shown to have. Jandreau v. Nicholson disorder manifested in service or within a year of service or was caused or aggravated by his service-connected right knee disorder. The Veteran reported that his left knee disorder had its onset in 1985, over ten years after his service, and the record does not demonstrate a continuity of care since service. The Board has considered the statements made by the Veteran, his spouse and fellow shipmate's that his left knee condition is related to his service, or his service-connected right knee. While they are competent to describe observable events, such as walking with an awkward gait, they are not competent to provide opinions as to the etiology of such conditions. Such determinations require specialized training which they are not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In any event, the Board assigns greater probative weight on the medical evidence of record, to include the November and December 2021 opinions as they relate to secondary causation and December 2023 opinions. These opinions found the Veteran's left knee disability is not related to his service or caused or aggravated by his service-connected right knee disorder. Moreover, there are no competent opinions to the contrary. The Board also finds that the persuasive evidence is against finding that the Veteran's right knee surgical scar caused or aggravated the Veteran's left knee disorder. In May 2022, a VA examiner found the Veteran's left knee disorder less likely than not related to the right knee surgical scar. The examiner reasoned that the scar was pliable and nonadherent and would not alter his gait. Additionally, the subsequent opinions, to include the December 2023 opinion, addressed secondary service connection and included associated scarring or residuals of the right knee arthoplasty in the analysis and found there was no causation or aggravation associated with the left knee. In sum, although the Veteran has a current left knee disorder, the persuasive evidence is against finding that it is related to service on a direct, presumptive or secondary basis. Accordingly, the claim is denied. Spine The Veteran seeks service connection for his spine disorder. He initially asserted that his spine disorder was caused by his service-connected right knee disorder. In the alternative, he has asserted that his spine disorder is related to falling off of ladders in service. Service treatment records show the Veteran reported back pain in August 1972. An x-ray study revealed a "rather straight spine otherwise normal." There were no injuries or treatment related to the spine, or any injuries related to falling off of a ladder. Ultimately, the Veteran was medically discharged due to a right knee disorder. Post-service treatment records indicate that the Veteran had a spinal procedure called Rhizolysis in 2005, which "burned some of" his spinal nerves, and lumbar ablation surgery in 2007. Additionally, the record demonstrates that he has lesions on his spine related to his MS and had a spinal fusion surgery in May 2017. As discussed above, the Veteran has not submitted or authorized VA to obtain all of his private treatment records; thus, all of the details of these procedures are not known. The Veteran presented for multiple examinations in relation to this claim. In June 2013, a VA examiner found the Veteran's knee disorders did not cause the Veteran's spine disorder. As discussed in the September 2021 Board remand, the opinion was not completely adequate for rating purposes because it did not address the Veteran's wife's statements about an altered gait or whether there could be aggravation of the spine due to the right knee disorder. In June 2017, the Veteran reported a gradual onset of spine pain beginning in 1985. A VA examiner found the Veteran's spine disorder was not related to his service or caused or aggravated by his service-connected right knee disorder. The examiner stated that there was no medically acceptable mechanism that would establish a nexus and the likely cause of his back disorder is age-related degenerative changes. Hereto, the Board found that the opinion did not address the Veteran's wife's statements about an altered gait or whether there could be aggravation of the spine due to the right knee disorder. See September 2021 Board remand. In November and December 2021, a VA examiner again found that the Veteran's spine disorder was not related to his service. The examiner stated that he was unable to find any evidence to support a relationship. The examiner further found that the Veteran's spine disorder was not caused or aggravated by the Veteran's service-connected right knee disorder; reasoning that the Veteran's altered gait was not the type of gait that would result in disorders in other joints. In March 2022, the Board found that these opinions did not adequately address direct service connection or the aggravation element of secondary service connection. In May 2022, a VA ation of the spine due to the right knee disorder. See September 2021 Board remand. In November and December 2021, a VA examiner again found that the Veteran's spine disorder was not related to his service. The examiner stated that he was unable to find any evidence to support a relationship. The examiner further found that the Veteran's spine disorder was not caused or aggravated by the Veteran's service-connected right knee disorder; reasoning that the Veteran's altered gait was not the type of gait that would result in disorders in other joints. In March 2022, the Board found that these opinions did not adequately address direct service connection or the aggravation element of secondary service connection. In May 2022, a VA examiner found that the Veteran's spine disorder was less than likely related to his service or caused or aggravated by his service-connected right knee disorder. The examiner reasoned that the Veteran's reported symptomology and corresponding records did not establish a relationship between the Veteran's service or service-connected right knee and concluded that the spine disorder was consistent with age-related degenerative changes. In September 2022, the Board determined that these opinions were based on incomplete medical records, notably, 2022 VA records and private treatment records, and an inaccurate factual premise. Additionally, the Board recognized that the prior Board remand used the improper standard of "permanent" aggravation in its remand instructions and consequently, the examiner used the incorrect standard in their analysis. In December 2022, a VA examiner again found that the Veteran's spine disorder was less likely than not related to his service. The examiner concluded that there was no credible indication of an in-service injury, noting that the Veteran reported that his spine was related to his right knee. Additionally, the examiner found the spine disorder was not caused or aggravated by the service-connected right knee disorder. The examiner explained that the symptomology and progression of the spine disorder did not present as would be expected if it was caused or aggravated by a right knee disorder. The examiner concluded that the Veteran's spine disorder was likely age related. As discussed in the March 2023 Board remand, the opinion related to direct service connection was incomplete because it did not contain sufficient rationale to address the evidence of record and the secondary opinion did not address the contentions related to an altered gait. In April 2023, a VA examiner found that the likelihood of the Veteran's spine disorder being related to his service, or caused or aggravated by his service-connected right knee disorder was less than approximately balanced. The examiner stated that after reviewing the record, there was no pathology to warrant a diagnosis. In December 2023, the examiner reiterated her finding that it was less than likely that the Veteran's spine disorder was related to his service, or caused or aggravated by his service connected right knee disorder. The examiner found that the totality of the record, to include the lay statements, did not support a nexus; that although there was an in-service report of back pain, the record did not demonstrate a chronicity of care to establish a relationship. The examiner also stated that the Veteran's reported symptomology was inconsistent and not plausible based on a review of the records. The examiner explained that the pathologies of the Veteran's spine disorder and right knee disorder did not have a pathoanatomical correlation. The Board finds that the persuasive evidence is against finding that the Veteran's left knee disorder manifested in service or within a year of service or was caused or aggravated by his service-connected right knee disorder. The Board has considered the statements made by the Veteran, his spouse and fellow shipmate's that his current spine disorder is related to his service, or his service-connected right knee. As shown above, they are not competent to provide opinions as to the etiology of such conditions. Such determinations require specialized training which they are not shown to have. Jandreau, 1377. In any event, the Board assigns greater probative weight on the medical evidence of record, to include the November and December 2021 opinions as they relate to secondary causation and December 2023 opinions. These opinions found the Veteran's spine disability is not related to his service or caused or aggravated by his service-connected right knee disorder. Moreover, there are no competent opinions to the contrary. To the extent the Veteran's spine disorder is secondary to his service-connected right knee surgical scar, the Board finds that the persuasive evidence is against finding that the Veteran's right knee surgical scar caused or aggravated the Veteran's spine disorder. In May 2022, a VA examiner found the Veteran's spine disorder less likely than not related to the right knee surgical scar. The examiner reasoned that the scar was pliable and nonadherent and would not alter his gait. Additionally, the subsequent opinions, to include the December 2023 opinion, addressed secondary service connection and included associated scarring or residuals of the right knee arth service or caused or aggravated by his service-connected right knee disorder. Moreover, there are no competent opinions to the contrary. To the extent the Veteran's spine disorder is secondary to his service-connected right knee surgical scar, the Board finds that the persuasive evidence is against finding that the Veteran's right knee surgical scar caused or aggravated the Veteran's spine disorder. In May 2022, a VA examiner found the Veteran's spine disorder less likely than not related to the right knee surgical scar. The examiner reasoned that the scar was pliable and nonadherent and would not alter his gait. Additionally, the subsequent opinions, to include the December 2023 opinion, addressed secondary service connection and included associated scarring or residuals of the right knee arthoplasty in the analysis and found there was no causation or aggravation associated with the spine. In sum, although the Veteran has a current spine disorder and reported back pain in service, the persuasive evidence is against finding that the Veteran's spine disorder is related to service on a direct, presumptive or secondary basis. Accordingly, the claim is denied. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, 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.