Citation Nr: 1751401	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  12-31 314	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to service connection for a right knee disability, to include as secondary to service-connected scars, residuals of shrapnel wounds, of the right thigh, left thigh, and right foot.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The appellant


ATTORNEY FOR THE BOARD

R. Behlen, Associate Counsel


INTRODUCTION

The appellant served on active duty in the Navy from August 1965 to January 1976, including service in the Republic of Vietnam.  He is the recipient of the multiple awards and decorations, including the Combat Action Ribbon.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied entitlement to service connection for right knee disability, to include as secondary to service-connected scars, residuals of shrapnel wounds, of the right thigh, left thigh, and right foot.  

The appellant testified before a Veterans Law Judge (VLJ) in April 2013 and a transcript is of record.  The Board remanded the claim for a new VA examination in January 2015.  The RO issued a Supplemental Statement of the Case (SSOC) in April 2015.  Upon notification that the VLJ who presided over such hearing was no longer with the Board, the appellant waived his right to a further hearing.  38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. 

In March 2017, the Board solicited a medical expert opinion from a VA orthopedist in connection with the appeal.  See VHA Directive 2010-044, dated September 29, 2010; 38 U.S.C. §§ 5103A, 7109 (2012); 38 C.F.R. § 20.901 (2017).  That opinion was received in April 2017.  In July 2017, a copy of the medical opinion was provided to the appellant, and he was offered the opportunity to present additional evidence or argument in accordance with 38 C.F.R. § 20.903.  In September 2017, the appellant responded with a lay statement, waived RO consideration of such evidence, and stated that he had no more evidence to submit.

A review of the record shows that the RO has substantially complied with all remand instructions.  Aside from complaints regarding the March 2015 examination and report, the appellant and his representative have not contended otherwise.  Stegall v. West, 11 Vet. App. 268 (1998).  The adequacy of the March 2015 examination is discussed in more detail below.

The Board notes that in his September 2017 informal hearing presentation, the appellant's representative argued that although the appellant submitted a notice of disagreement in February 2008 with the RO's denial of service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD), no Statement of the Case (SOC) has, as yet, been issued.  The record on appeal, however, indicates that in May 2008, the RO issued a Statement of the Case addressing the issue of service connection for hypertension, to include as secondary to PTSD.  The appellant, however, did not submit a timely substantive appeal.  Under these circumstances, the issue of entitlement to service connection for hypertension is not before the Board.

Also in the September 2017 informal hearing presentation, the appellant's representative argued that "[t]he present date of service connection and the ratings for the [service-connected] shrapnel wounds are clear and unmistakable error by the VARO."  A review of the record indicates that in a September 1976 rating decision, the RO granted service connection for a symptomatic scar of the right thigh, residual of a shrapnel wound; a scar of the left thigh, residual of a shrapnel wound; and a scar of the right foot, residual of a shrapnel wound.  The RO assigned an initial 10 percent rating for the right thigh scar, and initial noncompensable ratings for the scars of the left thigh and right foot.  All ratings were effective from January 10, 1976.  

It appears that the appellant's representative is alleging that revision of the September 1976 rating decision is warranted on the basis of clear and unmistakable error (CUE).  He is advised that a request for revision based on CUE must be pled with specificity.  A claimant must describe the alleged error with some degree of specificity, and provide persuasive reasons as to why the result would have been manifestly different but for the alleged error.  Fugo v. Brown, 6 Vet. App. 40, 43 (1993).  In addition, VA amended its adjudication regulations effective March 24, 2015, to require that all claims be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.  See 79 Fed. Reg. 57660 (Sept. 25, 2014).  The appellant is therefore advised to submit any claim he wishes to file on the prescribed forms, seeking the assistance of his representative if necessary.

Also in the September 2017 informal hearing presentation, the appellant's representative appeared to argue that the appellant's claim of service connection for a right knee disability has been pending since 1976.  To the extent this constitutes an argument for an earlier effective date, the record indicates that the appellant has been duly advised of the criteria for assigning an initial disability rating and an effective date following any award of service connection.  An appellant must file a separate notice of disagreement (NOD) following an award of service connection in order to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned).  Grantham v. Brown, 114 F. 3d at 1156, 1158 (Fed. Cir. 1997).  Thus, these issues are not currently before the Board at this juncture.  

Finally, in the September 2017 informal hearing presentation, the appellant's representative argued that the appellant's back was affected by his right knee pain.  The record indicates that service connection for a low back disability was denied in an August 2006 rating decision.  No timely NOD was received.  This issue is therefore not before the Board.


FINDING OF FACT

The most probative evidence indicates that the Veteran's current right knee disability, including advanced osteoarthritis, status post partial menisectomy and chondroplasty, was not present during active service, manifest to a compensable degree within the first post service year, and is not causally related to his active service or any incident therein, to include shrapnel wounds to the right thigh, nor is it causally related to or aggravated by any service-connected disability, to include shrapnel wound scars of the right thigh, left thigh, and right foot.  



CONCLUSION OF LAW

The criteria for entitlement to service connection for a right knee disability have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

In the September 2017 Informal Hearing Presentation, the appellant's representative appeared to contend that the appellant's service treatment records are incomplete.  He indicates that Navy hospital records were obtained by VA in 1976 but are now missing.  He stated "[i]t is also clear that the shrapnel wounds undoubtedly incurred in service are the subject of missing STRs.  What else is missing or lost?"

The appellant's service treatment records, however, do, in fact, include notations of treatment for shrapnel wounds in December 1968 and January 1969.  His shrapnel wounds were also evaluated during October 1969 and December 1975 medical examinations.  Moreover, whether the appellant sustained shrapnel wounds in service is not in dispute in this matter.  Indeed, the appellant's shrapnel scars are already service-connected.  Given these facts, and for the reasons discussed below, the Board finds that additional efforts to obtain service treatment records are not necessary, as it does not appear that there are additional relevant records outstanding.  

Moreover, with this claim, the appellant contends that he incurred a knee disability secondary to his service-connected shrapnel wound scars.  Again, there is ample evidence of the nature of the appellant's in-service injury and treatment for such.  There is no indication, nor does the appellant contend, that his right knee joint itself was damaged by the projectiles which caused his service-connected shrapnel scars.  See e.g. December 1975 Report of Medical History (appellant denied knee problems); March 2013 Board hearing transcript (appellant denied ever injuring his knee); March 2015 VA examination report (appellant denied any injuries to his knees). 

As discussed below, service treatment records show treatment for such shrapnel wounds in December 1968 and January 1969, and are negative for right knee complaints.  An October 1969 medical examination included evaluation of the appellant's shell fragment wounds to the lower extremities but was negative for abnormalities of the knee joint.  The December 1975 discharge examination showed that examination of the lower extremities was normal but for shrapnel scars and the appellant explicitly denied having or ever having had a "trick" or locked knee in the accompanying Report of Medical History.  Thus, the Board finds that there is no prejudice from any omission of in-service treatment records.  See 38 C.F.R. § 19.9(a)(1) (remand required only when further action "is essential for a proper appellate decision").  Cf. 38 U.S.C. § 7261(b)(2) (Court must take due account of the rule of prejudicial error); Shinseki v. Sanders, 556 U.S. 396 (2009) (a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome-determinative).

With respect to complaints regarding the adequacy of the VA examinations, the Board agrees that the April 2012 VA examination report is entitled to minimal probative weight because it was based upon an inaccurate factual premise.  Any deficiencies in the March 2015 VA examination report and medical opinion have been remedied by the well-reasoned April 2017 VHA medical expert opinion.  See 38 C.F.R. § 3.159 (c)(4) (2017).

Neither the appellant nor his representative has raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).


II.  Applicable Law

      A.  Standard of Proof

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran."  See Gilbert, 1 Vet. App. at 54.

	B.  Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service.  38 U.S.C. § 1110.  "To establish a right to compensation for a present disability, 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'-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307(a).

To establish service connection under this provision, there must be:  evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service.  The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As set forth in more detail below, arthritis of the right knee was not present during service or within one year of separation.  Thus, this provision is not for application.  

Service connection may be granted for a disability which is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a).  Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a).  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).


III.  Analysis

	A.  Evidence

The appellant contends that his right knee disability is caused or aggravated by his service-connected shrapnel scar residuals.  Alternatively, he contends that the performance of in-service activities such as climbing ladders and working as a side cleaner/scraper, and knee injuries he sustained while loading and unloading boats with supplies and climbing on and off docks which were not level with boats, led to his current knee disability.

The appellant's July 1965 Report of Medical History was essentially negative.  He reported that he was in good health.

In December 1968 and January 1969, the appellant was treated on multiple occasions with dressing changes for shrapnel wounds to the thighs and right foot.  A January 7, 1969, clinical note states that examination of the right foot revealed much improvement.  A January 27, 1969, clinical note states that there was an infection present, although it appears to have resolved.  

In October 1969, the appellant underwent medical examination in connection with an extension of is active service.  Examination of the lower extremities revealed the December 1968 shrapnel injuries with wounds in the right inguinal area, right foot, and left leg.  The appellant reported some numbness over the right anterior thigh and weakness in the right leg.  Objective examination revealed numbness over the right anterior thigh to touch.  No strength difference was observed upon examination.  No complaints or abnormalities pertaining to the right knee joint were noted.  

The appellant immediately reenlisted in January 1970.

A September 1971 clinical note states that the appellant experienced an injury to his right ankle.  The impression was an ankle sprain.  There was a great deal of soft tissue swelling and films were negative for fracture.  A later September 1971 clinical note states that the appellant was doing better.

At the appellant's December 1975 discharge examination, his lower extremities were examined and determined to be normal.  Examination of the skin revealed shrapnel scars in the right groin area, right thigh, left medial thigh, and left leg.  In connection with the examination, the appellant completed a Report of Medical History on which he reported experiencing shrapnel wounds in the leg while serving in Vietnam in 1968, but specifically denied experiencing "trick" or locked knee, arthritis, rheumatism, or bursitis, lameness, bone, joint, or other deformity, leg cramps, and foot trouble.  The appellant reported, "I am in good health."  

In April 1976, the appellant submitted an application for VA compensation benefits, seeking service connection for shrapnel injuries to the bilateral legs and right foot.  His application is silent for any mention of a knee disability.  He was afforded a VA examination in July 1976.  The appellant reported stiffness in the right lower extremity and right groin when he gets up after a long period of sitting.  This stiffness goes away as he gets up and around.  If he is on his feet for any length of time, he experiences pain in the same area.  The right foot and left thigh areas were asymptomatic.  Examination revealed that the appellant moved about easily and well with a normal gait.  He stood straight in good posture.  There was full mobility of the right ankle and right foot.  There was full, painless bilateral hip and bilateral knee joint mobility.  The upper right thigh scar was sensitive to tapping or pressure, but it was not tender.  X-rays of the thighs, hips, and right foot were unremarkable.  There were no retained foreign bodies or possible bone damage.  

In a September 1976 rating decision, the RO granted service connection for a symptomatic scar of the right thigh, residual of a shrapnel wound; a scar of the left thigh, residual of a shrapnel wound; and a scar of the right foot, residual of a shrapnel wound.  The RO assigned an initial 10 percent rating for the right thigh scar, and initial noncompensable ratings for the scars of the left thigh and right foot.  

The appellant was afforded a VA examination for his service-connected shrapnel scars in July 1982.  It was noted that he worked as a police officer from 1977 to 1980.  He was currently working as a truck driver, a job he had held since 1980.  He reported that if he sits for any length of time, including driving a truck or car or when he gets up in the morning, he experiences a tired, "going to sleep," numb, and tingling feeling in the area around his upper right thigh scar.  This feeling dissipates if he gets up and walks around.  Examination was negative for any irritation, redness, or soreness.  However, the entire area was sensitive.  There was no significant loss of underlying muscles, although there was loss of subcutaneous tissue underlying the scar.  Muscle tone was normal.  The right upper thigh scar was completely healed.  Surrounding tissues were completely normal. 

In August 2005, the appellant submitted claims of service connection for a low back disability and hearing loss and an increased rating for his service-connected right thigh disability.  In an August 2005 Statement in Support of Claim, the appellant stated that he has experienced increased numbness and weakness in his right upper thigh, from groin to knee, since his 1982 VA examination.  He reported that he must flex his right leg before he can put weight on it.  This "insecurity" regarding his leg has forced him to compensate by shifting weight and has caused an injury to his lower back.  

The appellant subsequently filed additional claims, including for service connection for PTSD, asbestosis and hypertension.  These claims are negative for any reference to a right knee disability.  

In connection with the claims, the RO obtained clinical records.  In pertinent part, these records include clinical records made in connection with a worker's compensation claim.  In December 2003 and January 2004, he was seen for a pulled muscle in his back while working for the post office.  He complained of low back pain radiating to the right leg and calf which prevented him from sleeping.  He was diagnosed as having lumbar radiculopathy worsened by sprain.  In March 2005, he complained of right knee pain.  

A September 2005 clinical note indicates that the appellant reported that he underwent a knee operation in July and that he was told his back ache was due to his knee problems.  Difficulty with gait was denied.

A February 2006 chiropractic note is of record.  The appellant complained of lumbosacral junction pain and radicular pain into the right buttocks and posterior thigh.  The appellant reported that back pain began while working for the post office five to six years prior.  He reported that his right leg felt fatigued and heavy at times, but denied claudication-type symptoms or focal radiculopathy-type symptoms.  Examination revealed that the appellant was able to rise from his chair with a mild amount of discomfort; however, he moved about the room with no obvious impairments in his gait.  

An April 2006 clinical note states that motor gait and station were grossly within normal limits.

The appellant was afforded a VA examination for his service-connected scars in August 2006.  The claims file was reviewed.  The appellant reported sustaining shrapnel wounds to the right inguinal area, left thigh, and right foot in December 1968.  He stated that the scars initially healed well, but the right inguinal groin area opened up.  It eventually healed by secondary intention.  The scars have stayed healed since.  The appellant reported that his symptoms are primarily from the right groin scar.  It takes him a while to get up and get moving; and his right leg feels tired all the way down.  The appellant reported experiencing a "charley horse" or cramping pain when he gets up to walk.  When in a sitting position, moving his leg causes a pulling sensation in the groin.  Numbness was also reported in the upper right leg.  The appellant reported that a chiropractor at the Rochester VA told him that his back problem and knee pains were due to compensating for his right leg.  The other scars were asymptomatic.

Physical examination revealed that the appellant walked with a slight tilt to the right and a slight forward posture.  No assistive devices were used; and no limp was present.  The right foot and left thigh scars caused no interference with movement or function.  The right groin scar causes some interference with movement or function.  The appellant is able to fully extend his leg and fully flex, but this causes pain and cramping.

A November 2010 clinical note states that the appellant was seen for right knee pain.  He reported that his right knee gave out on him.  X-rays revealed medial compartment degenerative changes, joint space narrowing, and osteophyte formation.  An MRI showed three loose bodies, advanced medial compartment osteoarthritis, and blunted posterior horn medial meniscus "probably from prior partial meniscectomy."  No definite meniscal tear was observed.

A November 2010 private clinical note from Orthopaedic Associates of Rochester states that the appellant complained of right knee pain which had been present for two weeks.  He stated that his leg gave out on him.  Examination revealed that the appellant was in no acute distress.  Gait was normal and he was able to get onto the exam table without difficulty.  Motor strength was good.  X-rays were taken and he was diagnosed with right knee degenerative joint disease.

A December 2010 letter from Dr. M.A.C. states that the appellant had significant and frequent locking of the knee and that he reported predominantly medial right knee discomfort.  Examination revealed that the appellant walked with a mild right lower extremity limp.  The impression was symptomatic right knee loose bodies and right knee medial compartment degenerative change.  The appellant chose to proceed with diagnostic right knee arthroscopy.

The appellant underwent right knee arthroscopy, removal of loose body, chondroplasty medial femoral condyle in January 2011.  He has received injections for his knee pain from VA since then.

In April 2011, the appellant submitted a claim of service connection for a right knee disability.  He indicated that his right knee disability was secondary to his service-connected shrapnel wounds to the right thigh and foot.  

A June 2011 clinical note states that the appellant was a fruit farmer and justice of the peace.

A December 2011 clinical note states that the appellant reported that his right knee injections were effective and allowed him to get through the apple season at his fruit farm.

The appellant was afforded a VA examination in April 2012 for his right knee.  He was diagnosed with osteoarthritis of the right knee, status post right knee arthroscopy, removal of loose body, chondroplasty medial femoral condyle in January 2011, status post meniscectomy or repair of the right knee in 2005.  The claims file was reviewed.  The examiner noted that the appellant sustained shrapnel scars when wounded on active duty in 1968.  He returned to duty and served until 1976.  The appellant reported that his right hip has worsened since his injury.  He reported that he retired from being a rural postal carrier three years prior due to trouble getting in and out of the car.  Pain in his right knee began "a number of years ago."  He reported that he owns a fruit farm and must climb up on tractors and equipment.  Following service, he was a part-time police officer for 13 to 15 years and worked as a rural postal carrier for 21 years.  He has owned a fruit farm for 20 years.  

The VA examiner opined that it was less likely than not that the appellant's right knee disability is related to his 1968 shrapnel wounds.  The examiner noted that the appellant had worked at very physical jobs, including his fruit farm, since his 1976 discharge.  It was also noted that the appellant was able to continue his service duties until 1976 following the 1968 injury.  Examinations were noted to be negative for limp or gait abnormality.  The appellant was noted to be able to fully extend his right hip upon examination and had no significant limp in 2006 and no persistent limp in April 2012.  

A November 2012 clinical note states that the appellant owns a fruit farm and gun shop, and works as a town judge.

An October 2013 clinical note states that the appellant uses a knee brace at times and continues to work as a fruit farmer.

During his video Board hearing in March 2013, the appellant testified that his knee was not bothering him at the time of the 1976 VA examination for his shrapnel scars.  He reported that his right hip worsened over time, including when he was a truck driver following separation.  He reported that he was forced to retire from his job as a rural postal carrier after 22 years because of his right knee and right hip problems.  He reported that his knee pain began 10 to 15 years prior.  He explained that he was a rural letter carrier and was in his vehicle except when delivering a package to the door.  He stated that he would only have to stand up to two hours a day, but he had a stool he could sit on if need be.  He testified that he had always experienced problems with the way he walks and stands, including when he gets going in the morning or when he gets up after sitting for a long period of time.  He explained that this was not initially a knee problem, but it developed into one.  He explained that he bought a fruit farm in 1993 but does not perform any physical labor.  His duties are limited to paperwork and sometimes driving a truck.  He does not perform physical labor, unlike how the April 2012 VA examiner characterized such work.  

The appellant reported constant knee pain, which had been alleviated by silicone shots.  He stated that he also experienced back problems while working at the post office, but such problems dissipated when he ended such employment.  The appellant testified that two orthopedic surgeons told him that there was a great possibility that the way he was walking caused his knee problems.  He stated that he believes his service-connected shrapnel scar residuals caused or aggravated his right knee disorder.  He experiences problems with his right hip area when sitting or walking, and experiences aching even when walking short distances.  He stated that Dr. M.A.C. told him that his shrapnel wounds could have caused his right knee disability.  He denied ever injuring his knee, spraining his ankle, or bumping his leg.  He stated that, without silicone shots, he cannot get into a truck or get onto a tractor. 

In January 2015, the Board remanded this matter in order to provide the appellant an adequate examination because the April 2012 VA examination relied upon an inaccurate factual premise regarding the physicality of the appellant's post-service employment.

The appellant was afforded a VA examination for his right knee in March 2015.  The claims file was reviewed, including service treatment records, VA medical records, and private medical records.  The appellant was diagnosed with right knee meniscal tear and right knee degenerative arthritis.  It was noted that he was first diagnosed with these disorders in 2005.  The appellant denied any injuries to his knees.  He reported that right knee pain began 10 to 15 years ago.  He tore his meniscus in 2005 and was treated surgically.  However, knee pain has persisted.  The appellant has owned a fruit farm for 20 years, and climbs up on tractors and equipment.  Following service, he worked as a police officer part-time for 13 to 15 years and as a rural postman for 21 years.  

The VA examiner opined that the appellant's current right knee disability was less likely than not caused by or incurred in his active service.  The examiner observed that there was no in-service event or injury that would cause a chronic knee disorder.  The appellant's meniscal tear happened decades after his active service; and the shrapnel wounds were not in the area of his knee.

A Statement in Support of Claim was received in May 2015.  The appellant expressed displeasure with his March 2015 VA examination.  He reported that during service, he climbed ladders, worked as a side cleaner/scraper, and had hurt his knee when loading and unloading boats with supplies and climbing on and off docks which were not level with boats.  He indicated that there had been no medics attached to his unit, and that he did not make a claim regarding his right knee upon discharge because he had spent 10 years in the Navy and wanted out.

An April 2017 VHA medical expert opinion from a VA orthopedist was provided.  The claims file was reviewed.  The examiner observed that service treatment records revealed no specific abnormalities involving the knee joint itself as a result of shrapnel injuries.  It was further noted that the post-service record indicated that advanced osteoarthritis developed decades following discharge.  The examiner explained that degenerative joint arthritis is a slow, chronic, progressive condition related to wear and tear which occurs routinely and almost universally in the general population with advancing age, even without specific trauma.  It can, on rare occasions, prematurely occur in the setting of a significant or devastating joint injury, infection, or other serious pathology that leads to early wear and tear.  However, such serious pathology or trauma does not present purely as soreness, aches, or chronic pain, but as acutely painful and debilitating conditions requiring immediate and early intervention.  Such would be serious enough to require an early discharge or significant interruption of service, and would be diagnosed by objective imaging studies, rather than subjective reports or opinions.  

The examiner noted that there was no such evidence of record which would lead a clinician to conclude that shrapnel wounds or residuals led to involvement of the knee joint.  Without such data, the natural conclusion is that hip and knee degenerative joint disease is the result of natural, age-related wear and tear that occurs with time.  Thus, the examiner opined that it was less likely than not that the appellant's current right knee disability (1) was causally related to his active service or any incident therein, including the December 1968 shrapnel injuries and/or the injuries reported in the appellant's May 2015 statement; (2) was causally related to his service-connected shrapnel wound residuals; (3) was aggravated (permanently made worse) by his service-connected shrapnel wound residuals; or (4) was aggravated by his active service.  Rather, the examiner explained that it was more likely than not that the appellant carried the same risk of developing arthritis of the hips and knees even if he had not served on active duty.  If the appellant had developed significant joint-related pathology or fractures during his active service, the examiner's opinion would have differed.  However, based upon the evidence of record, the appellant did not suffer such a significant joint-related involvement that would predispose him to premature degenerative joint disease and it was less likely than not that the appellant's active service affected the natural course of the appellant's right knee disability. 

A statement from the appellant was received in September 2017.  He reported that he has experienced discomfort from an in-service leg injury for most of his post-service life.  He reported that he does not have arthritis elsewhere in his body and has been told by doctors that his leg problems are most likely a result of his in-service injuries.  He explained that he incurred an infection as the result of his in-service surgery for his shrapnel wounds, and was left with a scar along his upper right thigh.  He reported taking over-the-counter medicine and favoring his leg over the years, and undergoing a knee replacement in June 2017. 

	B.  Entitlement to service connection for a right knee disability

Upon weighing the evidence, the Board finds that the preponderance of the evidence is against the appellant's right knee disability being caused by or incurred in active service, or caused or aggravated by his service-connected shrapnel scar residuals.

As the April 2012 VA medical opinion was based upon an inaccurate factual premise, it is entitled to minimal probative weight.  With respect to direct service connection, the March 2015 VA medical opinion is entitled to great probative weight because it is based upon a review of the claims file and an examination of the record, and is well-reasoned.  However, secondary service connection and aggravation were not discussed.

The April 2017 VHA medical expert opinion is entitled to great probative weight because it is based on a thorough review of the claims file, addresses direct and secondary service connection as well as aggravation, and the examiner fully explained the medical bases for the opinions offered and recited the relevant evidence of record.  

The Board has carefully considered the appellant's statements to the effect that Dr. M.A.C. and other clinicians have told him that his shrapnel wounds likely caused his right knee disability, the Board finds that such statements are less probative than the April 2017 VHA opinion.  Warren v. Brown, 6 Vet. App. 4 (1993) (holding that a claimant's lay statements relating what a medical professional told him, filtered as they are through a layperson's sensibilities, are too attenuated and inherently unreliable to constitute competent evidence to support a claim).  The Board notes that medical records from Dr. M.A.C. have been obtained and contain no medical opinion relating the appellant's right knee disability to his service-connected shrapnel wound disabilities.  In addition, the record contains no other opinion from any private clinician regarding the etiology of the appellant's right knee disorder.  Similarly, despite the appellant's August 2006 statement that a VA chiropractor told him that his knee pain was a result of compensating for his right leg, his VA medical records are negative for such an opinion.  

The Board has considered the appellant's lay history of symptomatology related to his claimed disorder throughout the appeal period.  He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual's senses.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  The appellant in this case is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning.  Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills.  The Board finds the VHA opinion to be of greater probative weight than the appellant's lay assertions as to the etiology of the appellant's current right knee disability. 

In the September 2017 Informal Hearing Presentation, the appellant's representative argues that the appellant's posture was noted to be to the right and forward in the August 2006 VA examination report, and provides sufficient evidence to grant service connection for a right knee disability.  However, the VHA medical expert considered all of the medical evidence of record; thus, the August 2006 examination report was taken into account and did not change the opinions rendered.  Further, the Board notes that the contemporaneous clinical evidence indicates that the appellant's gait was consistently described as normal for many years after service separation.  Further, the appellant himself denied difficulty with gait in September 2005, nearly 30 years after separation.

In May 2015, the appellant reported that he did not file a claim regarding his right knee upon separation because he wanted out of the service.  However, this more recent recollection regarding the onset of his right knee symptoms is entitled to less probative weight regarding when he began experiencing chronic right knee problems.  For example, the appellant testified during his March 2013 video Board hearing that his knee problems began 10 to 15 years prior to such hearing.  In addition, when he filed a claim for his shrapnel wound residuals in April 1976, he made no reference to a knee disability, either in the claim or during the examination conducted pursuant to that claim.

After considering the record in its entirety, the Board concludes that the evidence preponderates against the claim.  Thus, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107(b); 28 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).



ORDER

Entitlement to service connection for a right knee disability is denied.




____________________________________________
K. Conner
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs