Citation Nr: 1751076 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-06 506A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection of a left knee disability, to include as secondary to a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Watson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1970 to March 1972. This matter comes before the Board of Veterans' Appeals on appeal from a rating decision the Department of Veterans Affairs (VA) Regional Office (RO) issued in Houston, Texas in March 2009. In March 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). The transcript is of record. In May 2016, the Board remanded the Veteran's claims to obtain an addendum medical opinion, which was accomplished in July 2016. Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2016, the Board reopened a claim of service connection of a right knee disability currently on appeal. FINDINGS OF FACT 1. The Veteran's right knee synovial lateral plica clearly and unmistakably pre -existed service. The weight of the competent and probative evidence does not demonstrate a superimposed disease or disability resulting in additional disability and demonstrates that the condition was clearly and unmistakably not aggravated by service. 2. The Veteran's left knee osteoarthritis was not caused by the Veteran's service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability, to include plica, are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a left knee disability, to include osteoarthritis, are not met. 38 U.S.C.A. §§1101, 1112, 1113, 1116, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations obligate VA to provide claimants notice and assistance in substantiating their claims. 38 U.S.C.A. §§5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) the existence of a present disability; (2) 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. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There can be no valid claim absent proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C.A. §§ 1112 , 1113, 1137; 38 C.F.R. §§3.303, 3.304, 3.307, 3.309(a). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. Such conditions are part of a life-long defect and are normally static conditions which are incapable of improvement or deterioration. See VAOPGCPREC 67-90 (1990). V A regulations specifically prohibit service connection for a congenital or developmental defect. Nevertheless, service connection may be granted due to aggravation of a congenital or developmental defect by a superimposed disease or injury. See VAOPGCPREC 82-90 (July 18, 1990) (cited as 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental, or familial origin, unless the defect was subject to a superimposed disease or injury.) See also Carpenter v. Brown, 8 Vet. App. 240 (1995); Monroe v. Brown, 4 Vet. App. 513 (1993). However, service connection may be granted for diseases (but not defects) of congenital, developmental, or familial (hereditary) origin if the condition was incurred in or aggravated during service beyond its natural progression. While a defect is a structural or inherent abnormality or condition that is more or less stationary in nature, a disease is defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be unknown. See VAOPGCPREC 82-90, 56 Fed. Reg. 45,711 (1990). The presumption of soundness applies to a congenital disease but not to a congenital defect. Quirin v. Shinseki, 22 Vet. App 390 (2009). VA must consider all pertinent medical and lay evidence to evaluate a claim for disability benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to diagnose a condition when (1) a 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 medical professional's diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board may not find lay evidence incredible merely because contemporaneous medical evidence does not accompany it. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the Board may consider and weigh lack of contemporaneous medical evidence against a Veteran's lay statements. Id. Further, the Board may draw a negative inference from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). First, to analyze the Veteran's claims under the theory of direct service connection, the evidence of record shows he suffers a present right knee disability to meet the first element. The Board observes VA afforded the Veteran recent VA examinations in March 2014 and July 2016 according to McLendon v. Nicholson, 20 Vet. App. 79 (2006). His March 2014 VA examiner diagnosed his right knee disability as synovial lateral plica syndrome, based on a 2006 magnetic resonance image (MRI) of the right knee, whose primary symptom is pain. Likewise, an earlier October 2006 private examiner diagnosed his right knee disability as "Internal derangement." Thus, the first element is met. Second, the Veteran has shown he injured his right knee in service to meet the second element. He suffered a right knee injury while running the one mile physical training test in November 1970, for which his treating physician examined him by X-ray and prescribed crutches and no running for one week. Thus, the second element is met. Third, the question before the Board remains whether there is a nexus between the Veteran's current right knee disability and service and whether there is a nexus between the current left knee disability and service or a service-connected disability. The Veteran argues his running injury in November 1970 caused his current right knee disability. At his hearing before the Board, the Veteran testified he experienced pain immediately after running; but his STRs do not show him saying anything more about his right knee during service to his treating physicians; although he did tell the 2014 examiner he was seen once or twice while serving in Germany, though he described no more detail. While the Veteran is competent to testify to lay facts he has observed during or after service, such as the onset or persistent pain at the time of running in 1970 or after, he is not competent to opine a causal relationship between his in-service running and his current right knee disability, or any secondary connection to his left knee disability that onset later; because determining that requires medical expertise. Jandreau, 492 F.3d at 1377. Thus, his statements concerning a medical nexus are neither competent nor entitled to weight. On remand, VA provided a July 2016 examination to the Veteran of his right and left knee medical records to opine as to the etiology of his right knee synovial lateral plica syndrome and his left knee osteoarthritis. The 2016 VA examiner opined that it was less likely as not that the Veteran's service caused his right knee disability, diagnosed as right knee lateral plica, because "plica develops during the embryonic phase of development it clearly and unmistakably existed prior to the veteran's entry into military service." In other words, as a matter of human development, the plica formed before the Veteran was born and is natural to him as a "developmental pathology"; its onset clearly and unmistakably predates his service. 38 C.F.R. §3.303(c). Moreover, in answering the Board's remand question to categorize the Veteran's right knee lateral plica disability, the July 2016 examiner explained the "Veteran's right knee lateral plica is neither a 'disease process nor is it a defect or abnormality'. Synovial plicae; to include lateral plicae are naturally occurring in that begins during embryogenic phase of development then transforms in embryonic relic." The examiner concluded that the lateral plica did not result in any other conditions of the right knee as a result from running the mile in November 1970. The examiner stated that review of the Veteran's service treatment records document that his chief complaint was medial patellar pain and discomfort. The Board interprets the examiner's answer to explain that the lateral plicae is not a disease or defect of the human being, but rather normal, if not universally shared, among humans as they develop; and thus neither the word "disease" nor "defect" fit modern medical understanding of it. That said, it clearly and unmistakably pre-exists at birth. The examiner indicated that the condition was not considered either a defect or disease. The examiner went on to consider the questions of etiology considering the condition as either a congenital or development defect or disease. In light of the examiner's opinion, the Board will consider whether service-connection is warranted in either case. The examiner addressed the question as to whether, if the right knee condition was defect or abnormality of congenital, developmental, familial, or hereditary origin, the condition, which was subject to a November 1970 injury while running a mile in service, resulted in any other condition of the right knee. The examiner concluded that the lateral plica did not result in any other conditions of the right knee as a result from running the mile in November 1970. The examiner stated that review of the Veteran's service treatment records document that his chief complaint was medial patellar pain and discomfort. The examiner also noted that since plica develops during the embryogenic phase of development it clearly and unmistakably existed prior to the veteran's entry into military service. The examiner concluded that the Veteran's right knee lateral plica was clearly and unmistakably not aggravated by service. The examiner explained that the Veteran's chief complaint regarding his acute right knee pain was pain over the medial aspect of his knee; which clearly and unmistakably demonstrates that the lateral plica was not aggravated, permanently or chronically worsened, based on the November 1970 injury during service. The Board finds that the weight of the evidence does not demonstrate that a right knee disability is related to service. As discussed above, the probative and competent medical opinions demonstrate that the right knee disability, if considered a congenital defect, was not aggravated by a superimposed disease or injury. If considered a congenital disease, the weight of the evidence demonstrates that the pre-existing condition was clearly and unmistakably not aggravated. As to the Veteran's left knee osteoarthritis, the Board notes no examiner found it related to service, including as secondary to his right knee disability. The July 2016 VA examiner explained the Veteran's left knee osteoarthritis is less likely than not related to service because his STRs show him complaining of right anterior knee pain with infrapatellar swelling; which is of soft tissue involving extra-articular matter; whereas osteoarthritis is intra-articular. Also, the March 2014 VA examiner noted the Veteran described his left knee pain started about five years before the examination, in approximately 2009, and that the Veteran ascribed it to accommodating his right knee disability. However, service connection for the left knee disability as secondary to the his right knee disability is not warranted, because service connection for a right knee disability is not in effect. The Board finds the July 2016 and March 2014 VA examiners competent to render such exhaustive medical opinions due to their education, experience and credentials; and credible due to their well-reasoned rationales as a medical professionals. Thus, the Board lends great weight to the examiners' opinions relative to the lay evidence of pain especially, and finds the evidence preponderates against finding a causal nexus between the Veteran's current right knee disability and his November 1970 running injury, based on the competent and credible lay and medical evidence of record. Consequently, the Board finds the evidence does not warrant service connection of the Veteran's right knee disability directly because the third element of service connection has not been met to show his a nexus to service. Service connection may not be granted for the Veteran's left knee disability as secondary to a non-service connected right knee disability. 38 C.F.R. § 3.310. As to the theory of continuity of symptomatology, neither statute nor regulations recognize lateral plica as a chronic disease for VA purposes. Therefore, service connection based on the presumption in favor of chronic diseases and continuity of symptomatology is not warranted. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303, 3.307, 3.309. The benefit of the doubt rule does not apply since the evidence preponderates against the claim. See 38 U.S.C.A. § 5107 (b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102. ORDER 1. Entitlement to service connection for a right knee disability is denied. 2. Entitlement to service connection of a left knee disability, to include as secondary to a right knee disability is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeal Department of Veterans Affairs