Citation Nr: 1753667 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 11-08 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left knee condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran served on active duty from August 1984 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs Regional Office (RO). In December 2015, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This claim was previously before the Board in February 2016 and June 2017, at which time it was remanded for additional development. That development having been completed, this claim is once again before the Board. FINDING OF FACT The probative medical evidence of record does not show that the Veteran's currently diagnosed left knee degenerative arthritis was caused or incurred in military service. CONCLUSION OF LAW The criteria for establishing service connection for a left knee condition are not met. 38 U.S.C.A. §§ 1131, 5103, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence 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. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). A decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), clarified that 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 each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such service as shown by the service record, the official history of each organization in which the Veteran served, his or her treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 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); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran contends that his currently diagnosed left knee degenerative arthritis is the result of military service. In this regard, the Veteran has testified that he sustained injury within the first couple of years of his service due to over-use and performing strenuous tasks. The Veteran contends that he has suffered from pain and limitation of motion in his left knee since that time. A review of the Veteran's service treatment records reveals that he was seen in October 1985 with complaints of left knee pain. Examination of the Veteran revealed no abnormalities or disabilities as the left knee findings were within normal limits. No further complaints or treatment for the Veteran's left knee occurred for the remainder of his service. Service exit physical examination revealed no complaints of any kind relating to the left knee. A review of the Veteran's post-service treatment records reveals that the Veteran first sought treatment for his left knee in 2007. At that time the Veteran complained of left knee pain and limitation of motion. X-rays revealed mild degenerative changes and a possible meniscus tear. No discussion regarding etiology or nexus to military service was provided in the initial evaluation or any subsequent treatment that the Veteran has received for his left knee. The Veteran was provided with a VA examination in June 2008. Upon a review of the claims file, subjective interview, and objective testing, to include x-rays, the Veteran was diagnosed with left knee degenerative arthritis. It was noted that the Veteran had stated that this condition began during military service and continued to present, but the VA examiner did not proffer any opinion regarding nexus. The Veteran was provided with an additional VA examination in July 2008. Upon a review of the claims file, subjective interview, and objective testing, to include x-rays, the Veteran was diagnosed with left knee degenerative arthritis. The VA examiner opined that the left knee degenerative arthritis was less likely than not caused by or incurred in military service. In support, the VA examiner provided that the service treatment records showed no objective indication of injury to the left knee, as would be expected due to the type of left knee disability the Veteran currently had. Rather, there was only an isolated acute complaint that appears to have resolved without any residuals, as x-rays and subsequent examinations were negative for any indication of injury during military service. In essence, if the Veteran's current arthritis was related to military service, he would have had objective signs of that condition at that time. Based upon the evidence of record, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for a left knee condition, so the appeal must be denied. The evidence does show that there is a current disability for VA purposes, as there is evidence that the Veteran has been diagnosed with degenerative arthritis during the period of appeal, as shown in the Veteran's outpatient treatment records and referenced in his VA examinations. However, the evidence of record, as discussed above, does not show that the Veteran had any "in-service injury or disease," or a disease manifested to the level of 10 percent disabling within a year from discharge from the service. Rather he had an isolated complaint of left knee pain in an otherwise normal knee. Therefore, the issue turns upon a finding of nexus between the two. See Shedden, 381 F.3d at 1167; 38 C.F.R. § 3.303. Here, the Veteran's service treatment records are silent for any discussion of any symptoms of left knee arthritis, other than the isolated October 1985 complaint of pain, to include his exit examination, and there are no records of any treatment for such symptoms within one year of leaving military service. This is despite the fact that he did seek out treatment for a multitude of other conditions, including psuedofoculitis barbae, a right ankle fracture, and the aforementioned complaint of left knee pain during military service. As such, it is reasonable to assume that, had the Veteran been experiencing additional problems with his left knee, he would have complained of those as well. Additionally, following the Veteran's discharge from the service, the first medical evidence of any kind referring to a left knee disability, diagnosed as degenerative arthritis, was in 2007, when the Veteran was diagnosed with that condition. The Board notes that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Although the Veteran has stated that he experienced symptoms throughout service and from that time until present, the available objective medical evidence of record does not support such assertions, to specifically include an August 2007 report in which it stated that the Veteran reported a history of only 2 years of knee pain prior to that time. The Veteran is competent to report symptoms of pain, which are within the realm of his own personal perception. However, he is not considered to be credible in terms of the aforementioned medical record, particularly in light of the fact that when he was reporting his symptoms for the sole purpose of treatment, he stated that his condition only began 2 years earlier, whereas when he reported symptoms to the VA examiners for the purpose of compensation, he stated that it had started all the way back in military service. Such fact, in combination with negative findings of treatment in the medical record from 1985 to 2007, tend to significantly diminish the Veteran's credibility and, as such, the Veteran's statements to the effect that he had continuous knee pain from 1985 to present are afforded low probative value. Additionally, the only probative medical opinion of record, via the July 2008 medical opinion, essentially found that the Veteran's arthritis could not have been the result of military service because there would have surely been objective indicators of an injury serious enough to cause such a later development. Furthermore, as mentioned above, had the Veteran sustained such an injury, it is likely that he would have reported it as he did when he fractured his ankle. The only other evidence presented in regard to the relationship of the Veteran's left knee degenerative arthritis to his alleged in-service injury has been the Veteran's own statements. The Board notes that the Veteran is competent to testify as to a condition within his knowledge and personal observation. Barr v. Nicholson, 21 Vet. App. 303, 308-310 (2007). However, it is clear, based on a detailed review of the statements overall, that the Veteran has no actual specialized knowledge of medicine in general, or orthopedics more particularly, and that he is merely speculating as to whether his currently diagnosed left knee degenerative arthritis is related to his alleged in-service injury. In this regard, he is not competent to assign such a nexus, as it requires specialized medical knowledge and specific testing. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As such, the Veteran's statements to the effect that his currently diagnosed left knee degenerative arthritis is related to his alleged in-service injury are lacking in probative value. Therefore, the most probative evidence of record reflects that the Veteran lacks a nexus between his currently diagnosed left knee degenerative arthritis and alleged in-service injury during the appeals period. Absent the required finding of nexus at any time during the appeals period, there can be no assignment of service connection. For the reasons provided above, the preponderance of evidence is against the Veteran's claim for a left knee condition. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulation. Gilbert, 1 Vet. App. at 49; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a left knee condition is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs