Citation Nr: 1627914 Decision Date: 07/13/16 Archive Date: 07/22/16 DOCKET NO. 10-44 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to September 1984. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2009 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In September 2015 the Board remanded the matters for additional development. FINDINGS OF FACT 1. A chronic right knee disability was not manifested in service; arthritis of the right knee was not manifested in the first year following the Veteran's discharge from active duty; and a right knee disability is not shown to be related to his service. 2. A chronic left knee disability was not manifested in service; arthritis of the left knee was not manifested in the first year following the Veteran's discharge from active duty; and a left knee disability is not shown to be related to his service. CONCLUSIONS OF LAW 1. Service connection for a right knee disability is not warranted. 38 U.S.C.A. §§ 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. Service connection for a left knee disability is not warranted. 38 U.S.C.A. §§ 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. By correspondence dated in June 2009, VA notified the Veteran of the information needed to substantiate and complete his claims, to include notice of the information that he was responsible for providing and of the evidence that VA would attempt to obtain. The Veteran was also provided notice as to how VA assigns disability ratings and effective dates. The Veteran's service treatment records (STRs) and VA treatment records have been secured. Social Security Administration (SSA) records have been associated with the record. The Veteran was afforded VA examinations of the knees in September 2009 and November 2015. The Board essentially found the September 2009 VA examination inadequate and remanded the claims for a new examination that was conducted in November 2015. The Board finds the November 2015 report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with evidence of record. The Board, therefore, concludes that the November 2015 VA examination is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board also concludes that its remand orders were fully complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, claims for certain chronic diseases namely those listed in 38 C.F.R. § 3.309(a), benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), clarified the notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 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). The Board notes that it has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, 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 claims. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). At the time of the Veteran's medical examination at enlistment to service, his musculoskeletal system including his lower extremities was normal on clinical evaluation. His STRs show that on October 9, 1982 he was seen for emergency care and treatment for a right knee injury. He reported he was kicked in the right knee. There was no fracture seen on x-ray. He had pain in the lateral aspect of the joint. He had good range of motion on flexion but could not completely straighten the right knee. The diagnosis was possible torn cartilage of the right knee. He was provided crutches (no weight bearing) and medication. He was referred to the orthopedic clinic but did not go because he was not having any problems with the knee. X-rays at that time were within normal limits. On October 15, 1982 he was seen at an Army Hospital due to a right knee injury. He stated that when he tried to straighten his knee it "hurts[.]" The assessment was patellar pain syndrome. He stated he injured his right knee playing basketball approximately one week earlier. There were no complaints regarding the left knee. His separation examination is not of record. A May 2005 VA orthopedic surgery outpatient report shows the Veteran presented at the clinic with left knee pain. He reported that in September 2003 he had an MRI [magnetic resonance imaging] that showed medical meniscal tear and anterior cruciate ligament tear. He stated he had an injury several years ago. The impression was left knee pain. January 2007 x-rays of the left and right knees showed no degenerative change seen at the patellofemoral joints. There was some loss of joint space medially on both sides of each knee. There were no fractures or dislocations seen. The impression was mild degenerative change for both knees. A June 2007 MRI of the left knee joint shows ganglion transformation of the anterior cruciate ligament, and markedly irregular medial meniscus, consistent with prior partial meniscectomy, given a history of surgery; otherwise, it may represent diffuse degenerative changes and chronic tearing of the meniscus. Also shown were blunting of the posterior horn of the lateral meniscus, and severe degenerative cartilage changes of the medial joint compartment with large areas of complete cartilage loss. August 2007 x-rays of the knees reveal significant medial joint space narrowing and degenerative changes of the left knee and no significant degenerative changes visualized on the right knee. March 2008 x-rays of the left knee shows no acute fracture or dislocation, moderate degenerative change of the left knee with medial compartment joint space narrowing, sclerosis, bicompartmental osteophytosis, and suprapatellar joint effusion, and soft tissue swelling of the medial aspect and left knee. On September 2009 VA compensation examination, the Veteran reported that since service he has had bilateral knee pain that has been of a progressive nature over a period of years. He stated he had some strains to the knee from occupational injuries sustained while working approximately three or four years ago. The examiner noted that the Veteran had been seen by VA's orthopedics department with a diagnosis of degenerative joint disease which was well substantiated on x-rays and MRIs. The diagnosis was degenerative joint disease of both knees, left worse than right. The examiner noted that the Veteran sustained injuries to both knees while on active duty, and had moderate to severe degenerate joint disease, left worse than right. The examiner opined that it is less likely than not that these findings are related to the original injury sustained in 1982. The Board notes that the September 2009 VA compensation examination was determined to be inadequate for rating purposes and the Veteran was afforded another examination that was conducted in November 2015. On November 2015 VA compensation examination for the knees, the Veteran reported that during service he worked funeral detail and thinks he tripped and injured his right knee. He could not remember the actual incident but thinks he went to sick call and then to the emergency room. He recalled being on light duty but was able to fulfill the rest of his service obligations. He did not recall returning to the clinic for additional treatment. After discharge from service he worked in a factory doing delivery jobs. He stated that his right knee became stiffer and more painful over the years. He began getting general care at a VA Medical Center in the 1990's and was not sure if he mentioned his right knee. In 2001 his left knee was injured at work in the factory. He was told him he had a contusion and an ultrasound was performed. He was later assessed with having torn ligaments of the left knee. Since then he has had problems with his left knee, which continued to progress with constant pain. He stated he has intermittent pain in the right knee. He has had no surgeries or other treatment for his knees. X-rays confirm degenerative arthritis of both knees. The diagnoses were right knee strain, right knee patellofemoral pain syndrome, left knee anterior cruciate ligament, and bilateral knee joint osteoarthritis. The examiner opined that the Veteran's STRs do not support that the currently diagnosed bilateral knee disabilities were at least as likely as not (50 percent or greater probability) incurred in or caused by specific inservice illness, event or injury. The rationale for the opinion is that the STRs show a right knee injury in 1982 with normal x-rays. Since discharge, the Veteran has not had consistent treatment for a right knee disability. Notations in the record for treatment for the left knee are related to a post service injury. The Veteran clearly stated that he had an injury to his left knee at work in 2001 with ligamentous damage. In 2007 he was seen many times for complaints of bilateral knee pain that was worse on the left. He was treated several time with injections only into the left knee. In 2008 he was given a left knee brace, but no treatment was directed to the right knee. There is no evidence that the Veteran's current minimal degenerative joint disease in the right knee (noted in 2009) is related to his in service knee injury. The left knee degenerative joint disease is not related to any specific inservice injury. Right Knee Disability The Veteran contends that his currently diagnosed right knee disability is related to a right knee injury he sustained in service in 1982. It is not in dispute that the Veteran has a right knee disability. The November 2015 examiner confirmed current diagnoses of right knee strain, right knee patellofemoral pain syndrome, and right knee joint osteoarthritis. His STRs, however, do not corroborate that his current claimed right knee disability is related to his service. X-rays taken after the inservice right knee injury were within normal limits and the Veteran was referred to the orthopedic clinic after the injury but did not go because he was not having any problems with the knee. Apparently, the October 1982 inservice injury to the right knee was acute and transitory and resolved without any residuals. For example, treatment records subsequent to the October 1982 knee injury are silent for a right knee or any residuals of a right knee injury. Notably, the Veteran separated from active service in September 1984, nearly two years following the October 1982 incident involving injury to his right knee. Complaints of a right knee disorder after service was first indicated in a January 2007 x-ray report (more than 20 years after service). This lengthy interval between service and the initial postservice treatment for complaints of a right knee disability is of itself a factor weighing against a finding of service connection. Consequently, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran's right knee disability became manifest in service and persisted, and that service connection for a right knee disability on that basis is not warranted. Moreover, inasmuch as arthritis of the right knee was not manifested in service or in the first postservice year, service connection for such disability on a presumptive basis (i.e., as a chronic disease under 38 U.S.C.A. § 1137) is not warranted. In the absence of continuity of right knee symptoms since an injury in service, whether there is a nexus between a current right knee disability and any right knee complaints in service is a medical question. The only support for the Veteran's claim, however, is his own assertion that there is such a relationship. While he is competent to describe observable symptoms such as experiencing right knee pain, he is not competent to offer an opinion relating his specific current diagnoses of right knee strain, right knee patellofemoral pain syndrome, and right knee joint osteoarthritis to an incurrence in service, as that involves highly complex medical questions. See Jandreau, 492 F, 3d at 1377. The Board does not find the Veteran's account to be as probative as the examination findings, which were based upon a physical examination and record review and weight heavily against the claim. The November 2015 VA examiner's opinion, in essence, is that there is no evidence of a chronic ongoing right knee disability associated with the Veteran's military service. In fashioning this opinion, the November 2015 VA examiner demonstrated familiarity with the Veteran's medical history, cited to factual data in support of his opinion with rationale against the Veteran's claim. Consequently, the Board finds the November 2015 VA examiner's opinion probative, and persuasive. Left Knee Disability It is not in dispute that the Veteran has a left knee disability; left knee anterior cruciate ligament and left knee joint osteoarthritis have been diagnosed. STRs, however, are silent for any history, complaints, findings, treatment or diagnosis pertaining to a left knee disability. As a left knee disability was not manifested in service, service connection on the basis that the disability became manifest in service, and persisted, is not warranted. During the September 2009 VA compensation examination, apparently to support a continuity of complaints theory of a nexus between his knee disability and service, the Veteran stated that since service he has had bilateral knee pain that has been of a progressive nature over a period of years. However, no records of such early postservice treatment have been located; and the first indication in the record of postservice is the Veteran's account of an injury to his left knee at work in 2001when he sustained ligamentous damage to the left knee. Again, given this lapse of time between service and post-service diagnosis, the findings of the VA examiner based upon a claims file review, and the absence of a showing that the Veteran has medical training or credentials, the Board must conclude that the unfavorable examination opinion is of much greater probative value than the Veteran's own statements. See Jandreau, 492 F.3d at 1377. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claims of service connection for left and right knee disabilities. Therefore, the benefit-of-the-doubt doctrine does not apply; the appeal in these matters must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs