Citation Nr: 1752735 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 10-36 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for diabetes mellitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.Lee, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from October 1998 to October 2002. The Veteran then served on active duty in the Army National Guard from February 2003 to April 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the Veteran's claims file was subsequently transferred to the VA RO in Baltimore, Maryland. In May 2017, the Board remanded these issues for further development, which have been substantially completed. FINDINGS OF FACT 1. The Veteran's current left knee disability did not have onset during, nor was it caused by his active service, and did not manifest within one year of separation from active service. 2. The Veteran's current right knee disability did not have onset during, nor was it caused by his active service, and did not manifest within one year of separation from active service. 3. Diabetes mellitus was not present during the Veteran's active service or manifest to a compensable degree within one year of service separation, and the record contains no indication that the Veteran's post-service diabetes mellitus is causally related to his active service or any incident therein. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. § § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. § § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Left knee disability The Veteran contends service connection for a left knee disability. The Veteran's left knee disability was diagnosed as chondromalacia patella. See September 2010 Orthopaedic Specialists and Sports Medicine, Inc. Record. As such, the current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Thus, the outcome turns upon whether there is evidence of an event, injury, or disease in service, and, if so, evidence of a nexus between the claimed in-service disease or injury and the present disability. Id. The Veteran asserts that he injured his knee during service after "something pulled in [his knees]" while trying to climb into the back of an equipment truck with heavy equipment. See June 2017 Statement in Support of Claim. His service treatment records reflected that he sought medical attention for left knee instability, locking, and "popping" in January 2002. The Veteran was also instructed to not sit on the floor with his legs crossed. In a July 2002 separation examination with the United States Marine Corps, the VA examiner noted that the Veteran had a trick or locked knee since February 2002, and that his knee popped out. In an April 2007 retention examination for the Army National Guard, the VA examiner noted that the Veteran had knee trouble and that his knee popped out of the joint. In September 2010, the Veteran underwent treatment with a private physician, Dr. E.W. Here, the Veteran complained of his knees clicking, popping, and locking, with the left knee slightly worse in symptomology than the right knee. He reported moderate pain, and complained that his knee had not improved with time or care since the initial injury. X-rays were taken and proved to be normal. After reviewing MRI results, a referred private physician, Dr. A.O., found that the Veteran's flexor and extensor tendon complexes were intact; shallow chondral ulcers affected the patellar apex and inferolateral patellar facet; menisci, collateral ligaments, and cruciate ligaments were intact; capsulitis was mild; and there was no interaarticular body or soft tissue mass. Dr. A.O. diagnosed the Veteran with shallow chondral ulcers of the patellar facetal cartilage without full thickness defect or osteochondritis dissecans and a small amount of knee effusion. In June 2017, the Veteran was afforded a VA examination. Here, the VA examiner diagnosed the Veteran with chondromalacia patella. The Veteran reported that his knee pain was a five out of 10, that his knee was in constant pain, and the pain worsened with prolonged walking, kneeling, or being on the floor. He reported to the VA examiner that his knees locked around once or twice per month and that when his knee popped, it would cause immense pain. The VA examiner found the Veteran had flexion range of motion from zero to 130 degrees and extension range of motion from 130 degrees to zero. The VA examiner did not find evidence of pain with weight bearing, pain when the joint was used in non-weight bearing, ankyloses, or joint stability issues. The Veteran reported using a knee brace around four times per week. The VA examiner opined that the Veteran's left knee disability was less likely than not incurred in, caused by, or aggravated by his active duty service. He stated that reports of the Veteran's knee popping during his July 2002 and April 2007 separation examinations did not represent a diagnosis, and that the Veteran's service treatment records were silent for any chronic left knee diagnosis. In light of the foregoing, the Board finds that service connection for a left knee disability is not warranted. Evidence against the Veteran's claim includes the June 2017 VA examination. The examiner reviewed the entire claims file, and opined that the Veteran's left knee disability was not related to any incident from active duty, including the 2002 incident that the Veteran has claimed, and the Veteran's service treatment records are devoid of any left knee disability diagnosis. Rather, they contain some complaints of the left knee popping and locking. Furthermore, other medical evidence presented by the Veteran, again, only contain records of complaints and treatment, but do not discuss the etiology of the Veteran's left knee disability. Thus, the June 2017 VA opinion has significant probative value because it includes an explanation of the bases for the negative opinion, to include the available lay statements and medical records, along with the Veteran's more general lay assertions as to the etiology of his current left knee disability. While the Veteran believes there is a relationship between his in-service incident and his left knee disability, the Board finds that the most probative evidence of record weighs against this conclusion. As the Veteran is a layperson and does not profess any medical expertise, the Board finds that his opinion is outweighed by the opinion provided by the June 2017 VA examiner who has professional experience, education, and expertise that the Veteran is not shown to have. The opinion provided by the VA examiner is adequate, consistent with the record, and contains a stated rationale. Finally, there is no evidence or argument that a chronic disease of the left knee manifested in service or within the one year presumptive period or that the Veteran's current left knee disability is related to service. In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's left knee disability is causally linked to his military service. Hence, the benefit of the doubt doctrine does not apply and the claim must be denied. II. Right knee disability The Veteran contends service connection for a right knee disability. The Veteran's right knee disability was diagnosed as patellar tendonitis and chondromalacia patella. See September 2010 Orthopaedic Specialists and Sports Medicine, Inc. Record. As such, the current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Thus, the outcome turns upon whether there is evidence of an event, injury, or disease in service, and, if so, evidence of a nexus between the claimed in-service disease or injury and the present disability. Id. The Veteran asserts that he injured his knee during service after "something pulled in [his knees]" while trying to climb into the back of an equipment truck with heavy equipment. See June 2017 Statement in Support of Claim. His service treatment records reflected that he sought medical attention for right knee instability, locking, and "popping" in January 2002. The Veteran was also instructed to not sit on the floor with his legs crossed. In a July 2002 separation examination with the United States Marine Corps, the VA examiner noted that the Veteran had a trick or locked knee since February 2002, and that his knee popped out. In an April 2007 retention examination for the Army National Guard, the VA examiner noted that the Veteran had knee trouble and that his knee popped out of the joint. In September 2010, the Veteran underwent treatment with a private physician, Dr. E.W. The Veteran complained of popping, clicking, and locking in his right knee. He reported to Dr. E.W. that the pain was worse with activities involving squatting, sitting, and kneeling. He rated this pain as moderate, and complained that the pain had not improved with significant time and conservative care. X-rays were taken and proved normal. After reviewing MRI results, a referred private physician, Dr. A.O., found that the Veteran's right knee flexor and extensor tendon complexes were intact; minimal chondral blistering affected patellar apex and medial patellar facet; the menisci, collateral ligaments, and cruciate ligaments were intact; small infusion was noted; small Baker's cyst was evident posteromedially; and there was no soft tissue mass. Dr. A.O. diagnosed the Veteran with patellar tendonitis and chondromalacia patella. In June 2017, the Veteran was afforded a VA examination. Here, the VA examiner diagnosed the Veteran with patellar tendonitis and chondromalacia patella. The Veteran reported that his knee pain was a five out of 10, that his knee was in constant pain, and the pain worsened with prolonged walking, kneeling, or being on the floor. He reported to the VA examiner that his knees locked around once or twice per month and that when his knee popped, it would cause immense pain. The VA examiner found the Veteran had flexion range of motion from zero to 125 degrees and extension range of motion from 125 degrees to zero. The VA examiner did not find evidence of pain with weight bearing, pain when the joint was used in non-weight bearing, ankyloses, or joint stability issues. The VA examiner opined that the Veteran's right knee disability was less likely than not incurred in, caused by, or aggravated by his active duty service. He stated that the Veteran's service treatment records were silent for any chronic right knee diagnosis, and upon review of the record, there was no evidence for any aggravation due to his military service. In light of the foregoing, the Board finds that service connection for a right knee disability is not warranted. Evidence against the Veteran's claim includes the June 2017 VA examination. The examiner reviewed the entire claims file, and opined that the Veteran's right knee disability was not related to any incident from active duty, including the 2002 incident that the Veteran has claimed, and the Veteran's service treatment records are devoid of any right knee disability diagnosis. Rather, they contain some complaints of the right knee popping and locking. Furthermore, other medical evidence presented by the Veteran, again, only contain records of complaints and treatment, but do not discuss the etiology of the Veteran's right knee disability. Thus, the June 2017 VA opinion has significant probative value because it includes an explanation of the bases for the negative opinion, to include based on available lay statements and medical records, along with the Veteran's more general lay assertions as to the etiology of his current left knee disability. While the Veteran believes there is a relationship between his in-service incident and his right knee disability, the Board finds that the most probative evidence of record weighs against this conclusion. As the Veteran is a layperson and does not profess any medical expertise, the Board finds that his opinion is outweighed by the opinion provided by the June 2017 VA examiner. That medical professional has experience, education, and expertise that the Veteran is not shown to have. The opinion provided by the VA examiner is adequate, consistent with the record, and contains a stated rationale. Finally, there is no evidence or argument that a chronic disease of the right knee manifested in service, within the one year presumptive period, or that the Veteran's current right knee disability is related to service. In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's right knee disability is causally linked to his military service. Hence, the benefit of the doubt doctrine does not apply and the claim must be denied. III. Diabetes Mellitus The Veteran contends service connection for diabetes mellitus. He states that although he not diagnosed with diabetes mellitus until early 2009, which was more than a year after separation from service, his private medical records include notation of an elevated glucose reading in May 2007, and that this was indicative of a pre-diabetic status before separation from active duty. The Veteran's service treatment records are silent on diabetes mellitus. The Veteran submitted private physician records for diabetes mellitus treatment from March to September 2009. Here, his symptoms ranged from excessive thirst and weight loss in March 2009 with a blood sugar level at 400, to generally feeling well with blood sugar levels decreasing to 120 by September 2009. In August 2010, the Veteran submitted a letter from a private physician, Dr. D.B. He wrote that had been treating the Veteran for diabetes mellitus, which was officially diagnosed in 2009, and that in his professional medical opinion, the Veteran's random blood glucose reading of 137 in May 2007 could have been because the Veteran was in a pre-diabetic state. In November 2011, the Veteran submitted a buddy statement from a mentee whom the Veteran was a commanding officer for. Here, the mentee wrote that the Veteran struggled with his weight while he was enlisted with the Army National Guard due to his untreated and undiagnosed diabetes, and was barred from reenlisting due to his weight issues. He wrote that upon receiving diabetes diagnosis and treatment, the Veteran lost over 50 pounds but was still barred from reenlisting due to his prior history of weight gain and the inability to control his weight. However, while the mentee is competent to report his observations, the Board notes that he is not a medical professional, and therefore, his beliefs and statements about medical matters do not constitute competent evidence regarding matters that go beyond lay observation, such as etiology of the Veteran's diabetes. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (under certain circumstances, a lay person is competent to identify a simple medical condition). In June 2017, the Veteran was afforded a VA examination. Here, the VA examiner opined that it was less likely than not that the Veteran's diabetes mellitus was incurred in, caused by, or aggravated by his active duty service. The VA examiner noted that the Veteran's service treatment records are silent for a diabetes mellitus diagnosis, and thus, treatment. The VA examiner opined that the Veteran's random May 2007 elevated glucose reading was not considered a diagnosis of diabetes, nor was it indicative of the Veteran being pre-diabetic. He noted that classic symptoms of hyperglycemia requires blood glucose values to be greater than 200 mg/dl, and the Veteran's elevated glucose reading was 137 mg/dl, which was below the requisite 200 mg/dl. The VA examiner concluded that there was no evidence of nexus between the Veteran's diabetes mellitus and his military service as there was no medical evidence of aggravation of his diabetes mellitus by his military service. Given the lack of medical evidence of nexus between the Veteran's diabetes mellitus and his active service, service connection cannot be established. Additionally, chronic diseases such as diabetes mellitus that are diagnosed within one year of service are presumed to be related to service. 30 C.F.R. §§ 3.307(a)(3), 3.309(b). In this instant case, the Veteran completed his active duty service in April 2003, which allowed his presumptive service-connection time period for diabetes mellitus to extend to April 2005. As the Veteran's elevated glucose result occurred outside this period of presumptive service connection, the result demonstrated a proximity to the Veteran's period of active service that may have indicated a relation to service. However, again, the June 2017 VA examiner opined that the elevated glucose result was not indicative of the Veteran being in a pre-diabetic state during active duty, and thus, presumptive service-connection cannot be granted. ORDER Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. Service connection for diabetes mellitus is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs