Citation Nr: 1754631 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-14 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left knee disability previously addressed as posttraumatic arthritis of the left knee status-post collateral ligament repair. 2. Entitlement to service connection for a right knee disability previously addressed as degenerative arthritis of the right knee. ATTORNEY FOR THE BOARD S. Schick, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1969 to January 1972 with additional reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2016, the Board remanded the issues for further development. In a May 2016 VA Form 21-22 the Veteran attempted to appoint "Disabled American Veterans/Vietnam Veterans Associates" as his representatives. However, the Veteran is unable to appoint two Veterans Service Organizations and this VA Form 21-22 was not validly executed. Thereafter, the Board received a 30-Day Waiver Request in May 2017 from Disabled American Veterans indicating themselves as the Veteran's representative. In a September 2017 Correspondence entitled by the Veteran "Request for Change of Representation," the Veteran indicated it was imperative that he have a change of representation. In light of the this evidence, the Board sent the Veteran a September 2017 letter indicating that only one service organization, attorney, or agent may represent him at one time on the same issue on appeal and advised him that he would have 30 days to appoint another representation via the enclosed VA Form 21-22 or he could elect to represent himself by signing and returning the last page that letter. He was informed that if no response was received within 30 days of the letter, the Board would proceed adjudicating his claim as though he wished to represent himself. To date, the Veteran did not submit an executed VA Form 21-22, did not sign the last page of the September 2017 letter, and did otherwise respond to the September 2017 letter. Therefore, the Board will proceed with the claims with the Veteran representing himself. 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). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran had a diagnosis of arthritis of the left or right knee within a year of separation from active service. 2. The preponderance of the evidence is against a finding that the Veteran's bilateral knee disorder initially manifested in service or is otherwise etiologically related to active military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the Veteran's left knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for the Veteran's right knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter dated in July 2010. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran has not raised 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 duty to assist argument). II. Service Connection Legal Criteria A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered, or disease contracted, in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must generally 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting from disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease that is initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain chronic diseases, including arthritis, if such diseases are shown to be manifest to a degree of 10 percent or more within a year after separation from active service. See 38 U.S.C. §§ 1101(3), 1112(a)(1), 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Determinations regarding service connection are based on a review of all of the evidence of record, including pertinent medical and lay evidence. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.30(a). Under certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering evidence and determining its probative value, VA considers both the competency and the credibility of the witness. See Layno, 6 Vet. App. at 469 (providing that "competency" is a "legal concept determining whether testimony may be heard and considered by the trier or fact" and that "credibility" is a "factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' to prevail."). Analysis The Veteran contends that he has a bilateral knee disability as a result of active duty service. See July 2010 Statement in Support of Claim. He reported that he noticed a significant problem with his knees in the 1970s while in jump school that has become progressively worse. See September 2010 VA examination report. The first element, current disability, is satisfied as the Veteran has a current diagnosis of bilateral knee arthritis. See March 2017 VA Addendum Opinion. As to element two, in-service incurrence of a disease or injury, the Veteran's service treatment records (STRs) include June 1969 enlistment report of medical history wherein it is noted that prior to service in October 1967, he had an operation for Osgood Schlatter's disease, which was noted to now be asymptomatic. On the June 1969 enlistment report of medical examination, it was noted that he had scars on both knees from an operation. A March 1971 note reflected that both of the Veteran's knees were operated on in 1968 and he now had chronic pain. He had a history of Osgood Schlatter's, had surgery, and x-rays of both knees showed his knees appeared to be healed. An April 1971 STR note indicated the Veteran had sharp pain in both knees and a May 1971 STR noted the Veteran had complaints of knee ache. It is also noted that the Veteran was awarded the Parachute Badge. See Form DD 214. Thus, element two is met. Regarding element three, nexus, at the time of his separation from service, a December 1971 separation report of medical examination did not contain findings of knee pain. Thereafter on an April 1976 enlistment report of medical history to the Army Reserve, it was noted that the Veteran had an operation on both knees when he was 16, and had no trouble with his Osgood Schlatter's disease since. Thus, at the time of his separation from active service, as well as five years later when he enlisted in the Reserve, the records do not reflect knee complaints. The Veteran was afforded a September 2010 VA examination. The examination report indicated that the Veteran had a diagnosis of left knee mild generative arthritis, mild medial femorotibial subluxation, and two ossified posttraumatic patella tendon. No right knee diagnosis was indicated. The September 2010 VA examiner opined "the condition/disability whether degenerative arthritis- both knees was aggravated by military service was at least as likely as not (50/50 probability) permanently aggravated by Osgood Schlatter" and explained that more often, Osgood-Schlatter, the pain that arises from the repeated flexing of the knee against the quadriceps muscle that has become abnormally tight due to rapid body growth during adolescence. This strain aggravates the tibial area. So typically, Osgood-Schlatter disease is an overuse injury. The Board affords this opinion reduced probative value as the explanation is ambiguous and lacks clarity. In an April 2011 VA Addendum Opinion, the VA examiner opined that the condition of Osgood Schlatter's disease is a developmental one arising from epiphysitis of the tibial tuberosity. This condition most frequently becomes asymptomatic without treatment or with simple conservative measures such as a cast for four to six weeks. It is a localized condition, which does not affect or limit function in 76 percent of its cases. It was the examiner's opinion that those who do remain symptomatic improve with excision of the Osgood Schlatter ossicles. The condition of Osgood Schlatter's has no effect on knee joint function or conditions. The examiner further opined that the Osgood Schlatter's condition did not contribute to the Veteran's disability of his knee function and the condition itself was not permanently aggravated by his military service. The record also includes a February 2017 VA Medical Opinion wherein the VA examiner opined that the degenerative arthritis of the right knee claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner indicated that the Veteran's September 2010 VA medical examination, STRs, previous medical opinions, and the VA medical records were reviewed including appeals information and explained that as previously cited Osgood-Schlatter's disease is a developmental condition that occurs most often in children and is actually an over use injury per the medical literature versus an actual disease. Per the Veteran's entrance examination, he was asymptomatic for any knee condition. It was noted during jump school in April 1971 the Veteran complained of consistent pain in both knees. Per his STRs, he was seen on two occasions for the knee pain. STRs are silent after these dates for additional knee complaints. On physical examination date in April 1976, STRs documented "operation both knees Fairview Medical Center - no trouble since, was deemed "qualified." The examiner indicated that based on the medical records including STRs she was unable to establish a nexus between the Veteran's treatment times two of knee pain in the military and the Veteran's current diagnosis of right knee degenerative arthritis which by x-ray in September 2010 was minimal degenerative changes (39 years after jump school). Per the medical literature, mild degenerative arthritis is considered a normal part of the aging process. In a May 2017 VA Addendum Opinion, the VA examiner opined that the Veteran's post-service diagnosis of degenerative arthritis of the right and left knees less likely than not (less than 50 percent probability) began in service, was caused by service, or is otherwise related to service or caused by the claimed in-service injury, event, or illness. The examiner indicated that the Veteran's September 2010 VA medical examination, STRs, previous medical opinions, and the VA medical records were reviewed including appeals information and explained that as previously cited Osgood-Schlatter's disease is a developmental condition that occurs most often in children and is actually an over use injury per the medical literature versus an actual disease. Per the medical literature, Osgood-Schlatter's Disease Management recommends informing the patient to avoid pain-producing activities (e.g. Sports that involve excess amounts of jumping). Per VA records, the Veteran was a parachutist. Per the medical literature, there is no medical evidence that Osgood-Schlatter Disease progresses to degenerative arthritis. Per the Veteran's entrance exam he was asymptomatic for any knee condition including Osgood Schlatter Disease. The Veteran had surgical procedure as a child with no symptoms post surgery of the Osgood Schlatter's disease based on the entrance exam findings. On the physical exam (entrance) dated in April 1976, STRs document "operation both knees Fairview Medical Center-no trouble since, was deemed 'qualified.'" It was noted during jump school in April 1971 the Veteran complained of consistent pain in both knees. Per STRs, he was seen on two occasions for the knee pain. STRs are silent after these dates for additional knee complaints. The examiner indicated that she was unable to establish chronicity based on STRs. The examiner further indicated that based on medical records including STRs she was unable to establish a nexus between the Veteran's treatment times two of knee pain in the military and the Veteran's current diagnosis of degenerative arthritis which by x-ray in September 2010 was minimal degenerative changes (39 years after jump school). Per the Veteran's history he also worked in occupations with increased risk for DJD of the knees - 20+ years as a maintenance mechanic after leaving the military. Per the medical literature, mild degenerative arthritis is considered a normal part of the aging process. The amount of arthritis noted on the radiology finding is consistent with other persons of same age and type of occupations. The Board finds the examiner competent and credible and affords significant probative weight as the examiner addressed the Veteran's bilateral knee disorders and provided a thorough rationale. There is no competent medical opinion to the contrary. Additionally, as noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such diseases are shown to be manifest to a degree of 10 percent or more within a year after separation from active service. See 38 U.S.C. §§ 1101(3), 1112(a)(1), 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Where, as here, the record does not contain evidence of diagnosed arthritis involving the bilateral knees within one year of separation from service, service connection on a presumptive basis is not warranted. As noted above, chronicity has not been established and the Veteran's current degenerative arthritis of the knees was established until over 30 years after service separation. See May 2017 VA Addendum Opinion. Accordingly, the Veteran is not entitled to service connection for arthritis of the bilateral knees on a presumptive basis. The Board has considered the Veteran's contentions. However, as a lay witness, the Veteran is only competent to report on factors such as observable symptomatology, including pain. See Layno, 6 Vet. App. at 469-70. Determining the possible cause of his bilateral knee degenerative changes is beyond the scope of lay observation. Thus, a determination as to the etiology of his bilateral knee condition requires specialized training. See Jandreau, 492 F.3d at 1377; Layno, 6 Vet. App. at 469-70. As such, the Veteran's lay assertions do not constitute competent evidence concerning the etiology of his current knee disorders. See 38 C.F.R. § 3.159(a)(1). Moreover, as detailed above, there is no competent evidence of record indicating that the Veteran's disability is etiologically related to his active military service. In summary, the competent medical evidence of record weighs against a finding that a nexus exists between the Veteran's right or left knee disability and his active military service. Additionally, presumptive service connection for arthritis is not warranted, as there is no evidence of arthritis within one year of the Veteran's active service. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply, and the Veteran's claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a left knee disability previously addressed as posttraumatic arthritis of the left knee status-post collateral ligament repair is denied. Service connection for a right knee disability previously addressed as degenerative arthritis of the right knee is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs