Citation Nr: 1753417 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 12-23 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Veteran is represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1955 to March 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in June 2014 and April 2017 and was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT Arthritis of the knees was not shown in service or for many years thereafter, and the most probative evidence indicates that a current bilateral knee disability is not related to service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. The Board notes that the Veteran's service treatment records are not available and are presumed to have been destroyed in a fire at the National Personnel Records Center (NPRC) in 1973. The Board acknowledges its heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision" when service treatment records are lost or missing. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, no presumption, either in favor of the claimant or against VA arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (Court declined to apply an "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). The Veteran seeks service connection for a bilateral knee disability, which he asserts was caused by running in combat boots during service. During his April 2014 Board hearing, the Veteran testified that other than one instance of knee stiffness during cold weather, he did not have any knee pain or treatment for knee disabilities during service. He stated that he first received treatment for knee pain in the 1980's. Upon review of the record, the Board finds that the probative evidence of record is against a finding that a current bilateral knee disability is related to service. As noted above, the Veteran denied receiving any treatment for knee problems during service, and the record shows no treatment for a left or right knee disability for over 40 years after the Veteran's discharge from active duty. The Veteran underwent a VA examination in August 2016, during which he reported knee pain beginning in 1984 or 1985. It was noted that he was diagnosed with osteoarthritis of the left knee in 2000 and the right knee in 2003 and underwent right knee replacement surgery in 2005 and left knee replacement surgery in 2010. The examiner opined that the Veteran's current knee disabilities were less likely than not incurred in or caused by service. The Board finds the opinion of the VA examiner to be highly probative and persuasive, as it is based on a review of the evidence of record, including the Veteran's statements regarding the mechanism of injury, and is supported with a reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The examiner explained that an extensive review of the relevant medical literature revealed no data to suggest that running causes osteoarthritis of the knees, and in fact, running may actually protect against the development of osteoarthritis of the knees. The examiner reasoned that it was more likely that aging and obesity were the cause of the Veteran's osteoarthritis of the knees necessitating his joint replacements. The examiner also noted that this was consistent with an August 2012 opinion submitted by the Veteran in which his private orthopedist opined that lifestyle and aging were the most likely causes of his osteoarthritis. Furthermore, the examiner indicated that an August 2014 opinion submitted by the Veteran did not appear to consider any relevant medical literature. The Board has reviewed and considered three medical opinions the Veteran submitted in support of his claim. The first is a September 2010 VA treatment record noting that the Veteran ran three miles a day for three years while serving in the military, which "certainly contributed to his need for knee replacements." The second is an August 2011 opinion from a private nurse practitioner who indicated that "[t]here is the potential" that the Veteran's history of running in combat boots during service "may have contributed to his arthritis and existing disability." The third is an August 2014 opinion from a private family practice physician who opined that the Veteran's daily running in combat boots for 18 months during service greatly contributed to his osteoarthritis of the knees and subsequent knee replacement surgeries because participating in physical sports and abuse of the knees, hips, and back, usually show up later in life. However, the Board finds these opinions to be of significantly less probative than the VA examiner's opinion, as they are conclusory in nature and not supported by adequate rationales. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Moreover, the August 2011 opinion is speculative in nature, utilizing language that running in combat boots during service "may have contributed to" the Veteran's current knee disabilities. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that a doctor's statement that a veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative). As noted above, the Veteran submitted an August 2012 opinion from a private orthopedic specialist who indicated that "[the Veteran] had significant degenerative changes within the knees," which he believed were due to running in combat boots. The orthopedist indicated that "[r]unning with injuries under extreme conditions with heavy packs could contribute to degenerative changes in the knees later in life," and "[i]f there were injuries during this time it obviously could have contributed to his symptoms." However, the orthopedist ultimately opined that "more than likely, this is a degenerative process due to a life of using the knees as well as some genetic factors." As there is no evidence that the Veteran sustained any injuries to his knees during service, the private orthopedist's opinion actually undermines the Veteran's claim. Indeed, the Veteran has denied any history of knee injuries and reported that his knee pain began approximately 25 years after his discharge from active duty. Although the Veteran believes that a current bilateral knee disability is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis or etiology). In this regard, the diagnosis and etiology of knee disorders are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of a current knee disability is not competent medical evidence. In sum, the preponderance of the competent and probative evidence is against a finding that the current bilateral knee disabilities are related to service, and service connection is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. ORDER Service connection for a bilateral knee disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs