KNEE IMPAIRMENT OF

Summary

The veteran, who served from June 1979 to July 1985, appeals the denial of service connection for a left knee disability claimed as secondary to his service-connected right ankle disability. The Board reviewed the evidence of record, including service treatment records, a March 2020 VA examination, and a February 2020 private nexus opinion from the veteran's treating physician, Dr. W.T. Service treatment records did not indicate any left knee issues during service. The VA examiner diagnosed a left knee meniscal tear and strain but opined it was less likely than not related to service, failing to address aggravation. The Board found this opinion inadequate. In contrast, Dr. W.T. opined that the veteran's chronic left knee pain, due to a complex meniscus tear and cartilage degeneration, was directly related to compensation for the chronic instability of the right ankle, and found no other cause. The Board assigned Dr. W.T.'s opinion great probative weight due to its clear rationale and consideration of the veteran's history, further supported by private treatment records noting an antalgic gait. The Board found the evidence in relative equipoise but, applying the benefit of the doubt, granted service connection for the left knee disability as secondary to the service-connected right ankle disability.

Rationale

Private nexus opinion from treating physician found direct relationship and no other cause.; VA examiner's opinion found inadequate for failing to address aggravation.; Preponderance of evidence, with benefit of doubt, favored the claim.

Full Decision Text

Citation Nr: A24040677
Decision Date: 07/24/24	Archive Date: 07/24/24

DOCKET NO. 210324-147474
DATE: July 24, 2024

ORDER

Entitlement to service connection for a left knee disability as secondary to a service-connected right ankle disability is granted.

FINDING OF FACT

The competent evidence of record persuasively establishes that the Veteran's left knee disability is proximately due to or the result of his service-connected right ankle disability.

CONCLUSION OF LAW

The criteria to establish service connection for a left knee disability secondary to a service-connected right ankle disability have been met.   38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1979 to July 1985.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

By way of background, the Veteran filed for entitlement to service connection for his left knee disability secondary to his service-connected right ankle disability in February 2020.

The RO denied the Veteran's claim in a March 2020 rating decision.

In the March 24, 2021, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.

The Veteran submitted a Statement in Support of Claim with the Notice of Disagreement and requested a virtual hearing with a Veterans Law Judge.  The Board mailed the Veteran a docketing letter on March 31, 2021, and advised the Veteran that his appeal had been placed on the Evidence Submission docket.  The Board mailed the Veteran a subsequent letter on June 25, 2024, advising that the Veteran could choose a new Board Appeal option if he had not had a hearing or submitted evidence.  The Veteran has not submitted a request to switch dockets. Further, the Board is granting the claim herein. Consequently, there is no prejudice to him in proceeding with the adjudication of this appeal on the evidence review docket.

Therefore, the Board may only consider the evidence of record at the time of the March 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. Evidence was submitted within the 90-day period and the Board has considered that evidence.

If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in this decision. 38 C.F.R. § 20.30.  If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Evidence was submitted outside the 90-day evidence window in June 2021, specifically, private treatment records from Dr. S.S. 

1. Entitlement to service connection for a left knee disability as secondary to a service-connected right ankle disability. 

The Veteran contends that his left knee disability is secondary to his service-connected right ankle disability.  See February 2020 VA Form 526EZ.  The Board agrees.

Service connection under 38 U.S.C. § 1110 may be awarded on a secondary basis if a claimant suffers a disability that is "proximately due to or the result of a service-connected disease or injury." See 38 C.F.R. § 3.310(a); but see Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023).  For "aggravation of non-service-connected disabilities" it is enough to show that a non-service
 to a service-connected right ankle disability. 

The Veteran contends that his left knee disability is secondary to his service-connected right ankle disability.  See February 2020 VA Form 526EZ.  The Board agrees.

Service connection under 38 U.S.C. § 1110 may be awarded on a secondary basis if a claimant suffers a disability that is "proximately due to or the result of a service-connected disease or injury." See 38 C.F.R. § 3.310(a); but see Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023).  For "aggravation of non-service-connected disabilities" it is enough to show that a non-service-connected disability would have been less severe but-for a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the non-service-connected disability.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

The RO made a favorable finding of a current disability in the March 2020 rating decision.  The RO also found that the claimed primary disability is service connected.  The Board is bound by these findings.  See 38 C.F.R. § 3.104(c).  The question before the Board is whether the Veteran's left knee disability is proximately due to or the result of his service-connected right ankle disability.

Service treatment records during the Veteran's active service do not reflect any symptoms of or treatment for a left knee disability.

The Veteran submitted to a VA knee examination in March 2020.  The examiner diagnosed the Veteran with a left knee meniscal tear and a left knee strain.  The examiner opined that the Veteran's left knee disability is less likely than not proximately due to or the result of the Veteran's service-connected condition.  As their rationale, the examiner stated that the Veteran's gait was normal, and that the Veteran did not use a cane to compensate for the damaged side.  Without signs of an antalgic gait the examiner stated, "I am at odds with opining a direct effect of the right side negatively impacting the opposing side with ambulation."  The examiner did not address aggravation.

As the examiner did not address the issue of aggravation of the left knee disability, the opinion is inadequate for adjudicative purposes and the Board assigns it low probative value.  See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013).

In February 2020, the Veteran submitted a private positive nexus opinion from Dr. W.T., his treating physician.  Dr. W.T. stated that the Veteran has chronic left knee pain due to a complex meniscus tear and cartilage degeneration.  Dr. W.T. opined that the "premature failure of [the Veteran's] left knee is directly related to compensation for the chronic instability of the right ankle joint."  Furthermore, Dr. W.T. stated that after a review of the Veteran's medical, surgical, family, social, and occupational history, he could not find another cause for the Veteran's left knee disability.

The Board assigns Dr. W.T.'s opinion great probative weight as it contained a clear conclusion with a supporting rationale and relied upon consideration of the Veteran's medical history.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The opinion from Dr. W.T. is supported by private treatment records from Dr. S.S. submitted in April 2021, which note that in January 2021, the Veteran was ambulating without an assistive device but had an antalgic gait pattern. 

In considering all the evidence, the Board finds that there is both positive and negative evidence of record with respect to secondary service connection. However, the preponderance of the competent evidence is in favor of the claim of the Veteran's left knee condition as being caused by his service-connected right ankle disability.  The Veteran's private treatment records reflect an antalgic gait pattern. Dr. W.T. opined that the Veteran suffered from chronic left knee pain because of a premature complex meniscus tear and cart
 by private treatment records from Dr. S.S. submitted in April 2021, which note that in January 2021, the Veteran was ambulating without an assistive device but had an antalgic gait pattern. 

In considering all the evidence, the Board finds that there is both positive and negative evidence of record with respect to secondary service connection. However, the preponderance of the competent evidence is in favor of the claim of the Veteran's left knee condition as being caused by his service-connected right ankle disability.  The Veteran's private treatment records reflect an antalgic gait pattern. Dr. W.T. opined that the Veteran suffered from chronic left knee pain because of a premature complex meniscus tear and cartilage degeneration and found it to be directly related to the Veteran's right ankle disability.  The Board gives the March 2020 VA opinion less probative weight than Dr. W.T.'s opinion.

Therefore, the Board grants service connection for a left knee disability as secondary to a service-connected right ankle disability.

 

 

Rebecca N. Poulson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Houman

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.