Citation Nr: 1325210	
Decision Date: 08/08/13    Archive Date: 08/13/13

DOCKET NO.  06-34 207	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a left knee disability, including as secondary to service-connected residuals of a right knee injury.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel



INTRODUCTION

The Veteran had active service from May 1976 to May 1979. 

This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the RO in Waco, Texas, that denied entitlement to the benefit sought.  The case was remanded by the Board in November 2008, April 2011, December 2011, and September 2012.  [Notably, the issues on appeal originally consisted of the matters of whether new and material evidence had been submitted to reopen the claims of service connection for residuals of left knee and neck inury and left eye corneal abrasion.  In April 2011, the Board determined that new and material evidence had not been submitted and declined to reopen the residuals of neck injury and left eye corneal abrasion claims.  The Board also determined that new and material evidence had been submitted and reopened and remanded the matter of service connection for residuals of left knee injury.]


FINDINGS OF FACT

1.  A left knee disability was not noted when the Veteran was examined for enlistment; however, clear and unmistakable evidence shows (and it is not in dispute) that such disability preexisted his active service. 

2.  The Veteran's left knee disability did not increase in severity beyond natural progression during his active service; clear and unmistakable evidence shows that it was not aggravated by service. 

3.  The Veteran's left knee disability is not shown to be directly related to his service; arthritis of the left knee was not manifested in the first year following his discharge from active duty; and the left knee disability is not shown to have been caused or aggravated by his service-connected right knee disability.



CONCLUSION OF LAW

Service connection for a left knee disability is not warranted.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3,307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was advised of VA's duties to notify and assist in the development of this claim.  A May 2005 letter, prior to the initial adjudication in this matter, advised the Veteran of the evidence and information necessary to substantiate the underlying service connection claim, the information required of him to enable VA to obtain evidence in support of that claim, the assistance that VA would provide to obtain evidence and information in support of that claim, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf.  In compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), a subsequent letter informed him of disability rating and effective date criteria.  Notably, the Veteran has not been specifically advised of the evidence and information necessary to substantiate a secondary service connection claim.  However, the Board finds that this procedural defect does not constitute prejudicial error in this case because of evidence of actual knowledge on the part of the Veteran and his representative.  See Shinseki v. Sanders, 556 U.S. ___, 129 S.Ct. 1696, 1704 (2009).  The February 2011, October 2011, August 2012, and June 2013 Informal Hearing Presentations provide argument in support of secondary service connection for a left knee disability (and demonstrate actual knowledge of the evidence necessary to substantiate such claim.)  In fact, the Veteran even cites to the applicable regulation, 38 C.F.R. § 3.310, in his argument.  See February 2011 informal hearing presentation.  Based on this evidence, the Board is satisfied that the Veteran/his representative had actual knowledge of what was necessary to substantiate his claim.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim).  The appellant has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate.

Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision.  Rather, remanding this case to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  

The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured.  The RO arranged for VA examinations in May 2011 (with June 2011 addendum), February 2012, and December 2012.  Although it is argued in the June 2013 Informal Hearing Presentation that another remand is necessary because the December 2012 examination report provides an inadequate opinion and explanation of rationale, as explained further below, the Board's review of the December 2012 opinion (combined with the June 2011 addendum and February 2012 opinions) found that the record contains sufficient clinical findings and opinions with informed discussion of rationale to provide probative medical evidence adequate for adjudication of this matter, and that no further development of the evidentiary record is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  

[Notably, although the April 2011, December 2011 and September 2012 the Board remands ordered that the Veteran be examined by a physician (rather than a certified physician's assistant (PA-C)), it is noted that the Court, in Dyment v. West, 13 Vet. App. 141, 145-46 (1999); aff'd 287 F.3d 1377, 1383-84 (Fed. Cir. 2002), has held that substantial, and not strict compliance with a Board remand is necessary.  In the instant case, the Board has carefully reviewed the May 2011 (with June 2011 addendum) and February 2012 opinions which were conducted by a PA-C and finds that even though they were not conducted by the requested physician, the opinions provided are adequate for rating purposes (and are supported by the December 2012 opinion by a physician) as to the matter on appeal.  The opinions demonstrate a thorough review of the Veteran's claims file, the findings reported were detailed and the opinions (combined) offered were responsive to the questions posed.  As the opinions were rendered by healthcare professionals (who are trained in determining the diagnosis and etiology of the disability at issue, and qualified to provide the opinions sought), as the medical questions posed were not so complex as to be beyond the competence of a non-physician, and as the examiners explained the rationale for the opinions given, the Board finds that there has been substantial compliance with the remand directives, and a remand of the matter for strict compliance with the terms of the remands is not required.  See also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (VA may satisfy its duty to assist by providing a medical examination conducted by someone who is able to provide "competent medical evidence" under 38 C.F.R. § 3.159(a)(1)).]

The Veteran has had ample opportunity to respond/supplement the record; he has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.  Accordingly, the Board will address the merits of the claim.


Legal Criteria

Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, including the records in Virtual VA, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1131; 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 disability was incurred in service.  38 C.F.R. § 3.303(d).

The Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304.

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the "correct standard for rebutting the presumption of soundness under section 1111 requires the government to show by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service."  The Federal Circuit noted that lack of aggravation could be shown by establishing there was no increase in disability or that any increase in disability was due to the natural progress of the pre-existing condition.  See Wagner v. Principi, 370 F.3d 1089, 1096-1097 (Fed. Cir. 2004). 

Certain chronic diseases (to include arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for arthritis).  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a), like arthritis,-benefit from a somewhat more relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013) (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.

Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Id.; see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 

Effective October 10, 2006, 38 C.F.R. § 3.310 was revised to implement the Allen decision.  The revised 38 C.F.R. § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted.  In essence, it provides that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after the aggravation occurred.  As noted in the December 2011 remand, the Veteran's claim was pending prior to the effective date of the revised § 3.310 and the Board will consider the version in effect prior to October 10, 2006, as it is more favorable to the claimant.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003.

When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Factual Background

The STRs show that the Veteran's lower extremities were clinically normal and he reported no history of "trick" or locked knee on April 1976 enlistment examination.  These records show the Veteran sought treatment for right knee complaints after hitting the right knee on a missile rack while riding in a track vehicle when serving in Germany.  A May 1979 report of treatment for right knee complaints shows that the Veteran reported a history of left medial meniscectomy in 1974, prior to service.  On April 1979 separation examination, the Veteran reported a history of swollen or painful joints, cramps in the legs, "trick" or locked knee, and right knee torn cartiledge.  The physician's summary includes a notation of recurring right knee pain and cramps with prolonged standing; however, there were no left knee complaints or findings and the lower extremities were normal on clinical evaluation.

Following separation from service, private treatment records (in connection with treatment for back complaints) show complaints of occasional aching behind both knees in January 1980.  

On August 1980 VA examination, the Veteran complained of "constant ache" in both knees and reported that he had no history of trauma.  He stated the ache just started and had been present for about three years.  On examination, there was "a lot of crepitation in both knees."  X-ray studies showed normal knees.  The diagnosis was left and right knee condition, historical, not found.  

VA treatment records show the Veteran complained of swelling in lower extremities in June 2003.  The assessment was edema.  

In a July 2003 statement, the Veteran recalled injuring his knees in service when his [track] vehicle hit a ditch and his knees hit the front of the track.  

A February 2005 private treatment report shows that the Veteran complained of increased left knee pain, tightness and swelling.  A June 2005 VA treatment report shows the Veteran reported a 30 year history of biltateral knee pain.  

By an April 2006 rating decision, the Veteran was awarded service connection for residuals of right knee injury, effective from April 26, 2005 (date of receipt of reopened claim). 

VA treatment records show an impression of degenerative changes seen in both knee joints on X-ray examination in December 2008.  

On May 2011 VA examination, the Veteran's claims file was not available for review.  He recalled injuring both knees while driving a personnel carrier in Germany during field training in 1978.  The vehicle ran over a deep ditch and he sustained a hyperextension contusion injury of both knees when his knees struck the top of the driver's leg compartment.  He also recalled sustaining a torsional injury of the left knee while playing football and undergoing an open medial meniscectomy when he was 14 years old.  The Veteran reported a 12 month history of daily mechanical left knee pain.  He also reported daily left knee effusion and instability.  On examination, the left knee was arthritic apearing without effusion.  The December 2008 left knee X-ray examination report was reviewed and the impression was left knee degenerative joint disease (DJD), status post open arthrotomy medial meniscectomy, circa 1971.  The examiner was unable to offer an opinion without resorting to mere speculation because the claims file and STRs were not available for review.  

A June 2011 addendum to the May 2011 VA examination report shows review of the Veteran's claims file and provides the opinion that "[i]t is less likely as not that the veteran's current left knee condition is caused by, related to or aggravated by his military service."  The explanation of rationale for this opinion is that "[i]t is most likely that the veteran's current left [knee] condition is related to his prior to military service 1971 left knee injury/subsequent open arthrotomy medial menisectomy and chronic degenerative changes associated with aging and morbid obesity."  

On February 2012 VA examination, the examiner noted the history of bilateral knee injury while the Veteran was riding in a track vehicle in service and 1974 (prior to enlistment) left knee medial meniscectomy.  The diagnosis was left knee degenerative joint disease.  Based on review of the claims file, the examiner opined that the left knee disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury because the STRs contained no physical examination or diagnosis regarding the left knee other than noting his pre-enlistment left knee medial meniscectomy in 1974.  The examiner further opined that the left knee degenerative joint disease is not secondary to or caused by the right knee condition because "[t]here is nothing found in the credible literature to suggest that a condition in one joint will cause a condition of another joint either in the ipsilateral or contralateral extremity.  It is more likely than not that his left knee condition is caused by the previous open medial meniscectomy, morbid obesity, advancing age and a genetic predisposition to developing degenerative joint disease in weightbearing joints."  

Because the May 2011 and February 2012 examinations (and June 2011 addendum opinion) were conducted by a certified physician's assistant (PA-C), the Veteran was afforded another VA examination in December 2012 by a physician.  The examiner noted the Veteran's pre-enlistment and service left knee injuries and his current complaints of bilateral generalized knee pain, left greater than right, which is increased with sqatting, stairs, standing in excess 30 minutes and walking more than a block.  The Veteran reported his left knee gives way twice per month when walking and causes him to fall.  The diagnosis was severe left degenerative joint disease of the knee secondary to menisctomy.  Based on review of the claims file and examination of the Veteran, the examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's left knee condition was incurred in or caused by the claimed in-service injury because he found nothing in the STRs to support a chronic/recurrent left knee condition while the Veteran was in active service.  The examiner further explained:  

Clearly, the veteran had right knee problems secondary to his accident, for which surgery was reccommended [sic], however, no such condition is noted for the left knee.  The SMRs [service medical records] do indicate that the veteran had a menisectomy of the left knee in 1974 at arthroscopy, a common treatment modality at the time.  This, however, leads to aggressively progressive DJD of the knee, which has continued since the veteran's discharge from service, resulting in the end stage left knee DJD.  

The examiner also opined that the left knee disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond it natural progression by service.  The examiner explained:

I find no evidence in the [claims] file with regard to aggravation of the veteran's left knee condition while in active service.  Both entry and exit physicals are devoid of findings with regard to a left knee condition.  A surgically correctable right knee condition is noted on the veteran's exit physical.  The SMRs indicate a 1974 arthroscopic menisectomy, of the left knee, which is supported by the current end stage DJD of the left knee.  I find no evidence that any significant aggravation of the left knee condition occurred during active military service.  

Analysis - Aggravation of Preexisting Disability

A left knee disability was not noted when the Veteran was examined for service entrance.  Consequently, the presumption of soundness attached.  See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304; see also 38 C.F.R. § 3.304(b)(1) (history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception).  Thus, the analysis proceeds to the question of whether that presumption was rebutted.  

The presumption of soundness has been rebutted in this case as the record contains clear and unmistakable evidence that a left knee disability pre-existed the Veteran's service and was not aggravated in service.  First, the December 2012 VA examiner opined that the Veteran's left knee disability clearly and unmistakably existed prior to service because the STRs "indicate a 1974 arthroscopic menisectomy, of the left knee, which is supported by the current end stage DJD of the left knee."  This evidence, coupled with the Veteran's own lay statements and notations of a pre-enlistment left knee injury noted in the STRs and post-service treatment records, clearly and unmistakably establishes that a left knee disability pre-existed the Veteran's active service.

Second, there is clear and unmistakable evidence that the left knee disability was not aggravated in service.  See Wagner, 370 F.3d at 1097.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  See 38 C.F.R. § 3.306(b).  Whether a disability increased in severity is in large measure a medical question.  There is no medical evidence of an increase in severity of the Veteran's left knee disability beyond natural progress.  The December 2012 examiner noted that he found "no evidence in the [claims] file with regard to aggravation of the veteran's left knee condition while in active service" and "[b]oth entry and exit physicals are devoid of findings with regard to a left knee condition."  Significantly, the August 1980 VA examination report noted normal knees on X-ray study (i.e., no progressive deterioration/worsening of the Veteran's left knee disability) and a diagnosis of left knee disability was noted by history only (no current left knee disability was found).  Thus, the pre-existing left knee disability was asymptomatic during service and there is nothing in the STRs to suggest that it increased in severity during, or was aggravated by, his service. 

The December 2012 VA examiner examined the Veteran, reviewed his claims file and explained the rationale for his opinion.  The Board finds no reason to question the competence of the VA examiner, a physician, in attributing the Veteran's current left knee disability to his pre-enlistment injury and finding that it was clearly and unmistakably not aggravated as a result of service.  Significantly, there is no competent evidence to the contrary (i.e., no medical opinion indicating that the pre-enlistment left knee disability increased in severity during service).  As the December 2012 VA examiner's opinion was based on a complete, accurate, and documented factual background, contains a complete description of the left knee disability, and explains the rationale for the opinion, the Board finds it probative and persuasive.

Based on the foregoing, the Board finds that the evidence clearly and unmistakably establishes that the Veteran's left knee condition both preexisted service, and was not aggravated by service, and the presumption of soundness is therefore considered to have been rebutted.  See 38 U.S.C.A. § 1111; See Wagner, supra; 38 C.F.R. § 3.303; VAOPGCPREC 3-03 (July 16, 2003).  Where the presumption of soundness is rebutted, a claimant can only receive service connection based on aggravation; however, the Board has already determined that the Veteran's left knee disability was clearly and unmistakably not aggravated during service and that there was never an in-service injury.  Accordingly, and in light of the discussion below, the Board finds that the preponderance of the evidence is against a finding of either incurrence or aggravation of left knee disability during the Veteran's service, and his claim for service connection therefore fails.  See Hickson, supra.


Direct Service Connection 

The Board finds that the preponderance of the evidence is also against the claim of service connection for a left knee disability based on a direct theory of entitlement.  The fact that the Veteran's STRs are silent as to left knee complaints or treatment (although he reported a history of left knee injury prior to enlistment); that treatment records show no evidence of left knee complaints between 1980 and 2005 (he complained of lower extremity swelling in June 2003); that first post-service X-rays of the left knee were normal (degenerative changes were not shown until X-ray in December 2008); and that there is no clinical evidence of left knee disability until many years after service all weigh heavily against any finding of continuity of symptoms/disability from an injury in service.

Further, the medical opinion evidence in the record is against a finding of a direct relationship between any current left knee disability and the Veteran's service.  The negative evidence with respect to etiology includes the June 2011 addendum and February 2012 and December 2012 opinions which concluded that it was unlikely (less than 50 percent probability) that the Veteran's left knee disability was caused by service.  Because the examiners expressed familiarity with the record and explained the rationale for the opinions, they are probative evidence in this matter.  Because there is no competent evidence to the contrary, the opinions are persuasive.

To the extent that by his statements the Veteran seeks to establish service connection based on continuity of symptoms from an injury in service, his account lacks credibility.  Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) ("Credibility can be genuinely evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, official plausibility of the testimony, and the consistency of the witness' testimony").  His more recent accounts reporting a left knee injury in service and continuous symptoms since are self-serving (See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements)) and conflict with his contemporaneous STRs which show treatment for a right knee injury as a result of riding in a track vehicle (and only note the history of left knee injury prior to enlistment).  

Presumptive Service Connection

The record shows that the Veteran currently has left knee DJD.  To substantiate a claim of presumptive service connection for such disability, there must be evidence that it was manifested to a compensable degree in the first postservice year.  A thorough review of the record found no evidence that the Veteran had left knee arthritis in the first post-service year.  As was noted, X-ray in August 1980 (i.e., during the presumptive period) showed normal knees.  Furthermore, the Veteran has not specifically alleged that left knee arthritis was manifested within the first postservice year.  Notably, as a layperson, he is not competent to diagnose arthritis as that disability is an insidious process identified by diagnostic testing, X-ray or MRI.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).

Given that arthritis was not found on the 1980 X-ray and that there is no other competent evidence of arthritis within the first postservice year, service connection for a left knee disability on a presumptive basis (for left knee arthritis as a chronic disease under 38 U.S.C.A. § 1112) is not warranted.

Secondary Service Connection

Finally, the Board finds that the preponderance of the evidence is also against the Veteran's alleged secondary service connection theory of entitlement to the benefit sought.  On February 2012 VA examination (the report of which the Board found adequate and probative), the examiner noted the history of the Veteran's left knee disability and opined that the left knee degenerative joint disease is not secondary to or caused by the right knee condition.  The examiner explained that "[t]here is nothing found in the credible literature to suggest that a condition in one joint will cause a condition of another joint either in the ipsilateral or contralateral extremity."  The examiner provided further rationale for the opinion by identifying other etiological factors for the left knee complaints, including the pre-enlistment left knee injury, the Veteran's morbid obesity, his advancing age, and a genetic predisposition to developing degenerative joint disease in weightbearing joints.  The Board finds this evidence highly probative in the matter at hand.  Because there is no competent (medical opinion/treatise) evidence to the contrary with opinion supported by any explanation, the Board finds the February 2012 VA examiner's opinion to be persuasive.

The Board has considered the Veteran's statements relating his left knee disability to his service or to his service-connected right knee disability.  He is competent to give evidence about observable symptoms such as having knee pain.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  However, he is not competent to give an opinion as to whether his current left knee disability, arthritis, was aggravated in service or is related to his service-connected right knee disability as such are highly complex medical questions beyond the scope of lay observation.  As noted above, arthritis is an internal process identified by diagnostic testing, X-ray or MRI.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

As a preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the appeal seeking service connection for a left knee disability must be denied.


ORDER

Service connection for a left knee disability is denied.



________________________________________________
M. C. Graham
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs