Citation Nr: 1756598 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-48 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a right knee disability, to include as secondary to the service-connected low back disability. 2. Entitlement to a total disability rating due to individual unemployability (TDIU) on an extraschedular basis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran served on active duty from January 1977 to January 1980. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In June 2014, the Board remanded the service connection claim for additional development. In June 2016, the Board found that the TDIU issue was on appeal as part of a then pending claim for an increased rating for a back disability under Rice v. Shinseki, 22 Vet. App. 447 (2009). It remanded the claims currently on appeal for additional development. Following the most recent readjudication of this appeal by the AOJ in the July 2017 Supplemental Statement of the Case (SSOC), additional pertinent medical evidence was added to the record. However, the Veteran's representative waived the Veteran's right to have the AOJ initially consider this evidence in a statement dated in November 2017. 38 C.F.R. §§ 20.800, 20.1304 (2017). This appeal was processed using the paperless, electronic Virtual VA and Veteran Benefits Management System (VBMS) claims processing systems. The TDIU issue is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran's right knee disability was not manifested during his active military service, is not shown to be causally or etiologically related to his active military service, is not shown to have manifested within one year from the date of his separation from the military, and is not shown to be caused or aggravated by his service-connected mechanical low back pain with lumbarization of L1 and scoliosis. CONCLUSION OF LAW Service connection for a right knee disorder, to include as secondary to the service-connected mechanical low back pain with lumbarization of L1 and scoliosis, is not established. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection is warranted where the evidence establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, will be presumed if they manifest to a compensable degree within one year following the active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection is provided for a disability that is proximately due to, or the result of a service-connected disease or injury; of is aggravated by such disease or disability. 38 C.F.R. § 3.310. VA will not concede aggravation unless the baseline level of the non-service connected disability is established by medical evidence created before the onset of aggravation or by the earliest evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of non-service connected disease or disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. § 3.102 (2017). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. On VA examination in September 2014, the Veteran was diagnosed with osteoarthritis of the right knee. The Veteran contends that he injured his right knee in service and his current right knee disability is a result of that injury. In a May 2009 statement, he wrote that his right knee was injured at the same time that he injured his back in service. In his substantive appeal in October 2010, the Veteran reported that he had injured his right knee in a fall during a battalion run in 1979, and been treated for scrapes and bleeding and that the fall reinjured his back. The Veteran's service treatment records (STRs) are silent for documentation of a right knee injury or disability. These records reveal no complaints or treatment related to the right knee. In his November 2009 Notice of Disagreement (NOD), the Veteran cited reports of right leg radiculopathy in service as supporting service connection for a right knee disability. He stated that he underwent right knee surgery in 1983; however, these records are not contained in the claims file. The Veteran was asked to provide VA authorization to obtain these records in a letter dated in July 2014. He did not respond. The STRs show treatment for a back strain beginning in 1978 and extending to January 1979. When initially seen, the Veteran reported that there had been no specific back injury. In January there was an exacerbation of symptoms after he reportedly lifted a heavy body bag. There are reports of medical history and examinations on forms that are normally used for separation examinations; but they are undated. These show no findings or history of knee injury or disability. The Veteran was seen by VA in December 1984, when he reported a history of radiating back pain, primarily from the right knee down to the toes. These symptoms had begun that month. Other VA treatment records from this period show complaints of back pain and removal of wax from the ears; but do not report any findings referable to the knees. There were no recorded right knee complaints and after testing, his symptoms were attributed to sciatic nerve radiculopathy from the back. In a report of medical history recorded on a form for reporting VA examinations; the noted history was of back pain, radiculopathy and ear complaints. The examination was not conducted and it was noted that the Veteran did not report for VA examinations scheduled in 1985. The first contemporaneous reports of a relevant post-service complaint was in a July 2004 VA Medical Center (VAMC) treatment record, which documented that the Veteran had osteoarthritis and degenerative joint disease of the right knee with pain. The Veteran did not report at that time that his right knee symptoms had been present since his active military service. The only medical nexus opinion of record is negative. On VA examination in September 2014, following a review of the claims file and a physical examination, the examiner determined that there was nothing located in the Veteran's STRs regarding symptoms, complaints, treatment, or diagnosis of a right knee disorder. The examiner said that the December 1984 treatment records showed right knee complaints. There was no surgical note regarding arthroscopic surgery of the right knee to repair torn muscles claimed by the Veteran located in the evidence of record after separation from service. Thus, the examiner opined that the right knee disability of torn muscles/osteoarthritis was not incurred in or etiologically related to the Veteran's active military service. The VA examiner clearly reviewed the Veteran's STRs and other evidence in the claims folder; but did not consider the Veteran's lay reports. The Veteran; however, has not reported any clear or specific history of continuity of knee symptoms. Although the record shows he had a number of opportunities in service and during the initial VA treatment in 1984, but did not do so. It was only after the discovery of right knee arthritis decades after service that he reported any in-service injury or symptoms; and at times he has confused radiculopathy (which is clearly service connected as part of the back disability) with a knee disability. For these reasons the Veteran's reports of an in-service injury or disability are of little probative value; and the examiner's failure to consider those reports does not lessen the probative value of the opinion. The examiner provided an opinion that is supported by and consistent with the evidence of record. There is no positive evidence to the contrary of this opinion in the claims file. The treatment records do not provide contrary evidence. For all of these reasons, service connection for a right knee disorder on a direct basis is not warranted. The Veteran reports continuous symptomatology since his active military service. However, the Veteran's contentions are not supported by the medical evidence of record. As stated above, the earliest pertinent post-service medical evidence associated with the claims file is dated from 2004, almost twenty-five years after the Veteran's military separation in 1980. Further, the STRs do not document any complaints of or treatment for the right knee. When the Veteran was first treated post-service, he did not indicate that his right knee disorder had been present since his active military service. The evidence of record does not document continuity of symptomatology during and since the Veteran's active military service. Thus, the Board finds that the medical evidence does not establish a "chronic disorder." 38 C.F.R. § 3.303; see Walker, 708 F.3d at 1331. The Veteran's service connection claim also cannot be granted on this theory of entitlement. Additionally, the Board finds that the Veteran is not entitled to presumptive service connection for arthritis of the right knee. As stated above, the earliest post-service medical treatment records are dated from 2004, and the Veteran was separated from the active duty in 1980. No diagnosis of arthritis of the right knee was made within one year of the Veteran's military discharge. Thus, the presumption for service connection for chronic diseases does not apply. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). The Veteran also seeks service connection for a right knee disorder, as secondary to his already service-connected mechanical low back pain with lumbarization of L1 and scoliosis. Again, the only nexus opinion of record on the issue of secondary service connection is negative. A VA addendum medical opinion was obtained in November 2016 from the September 2014 VA examiner. Following another review of the claims file, the VA examiner determined that there was no evidence based medicine that supports a mechanism by which one joint becomes damaged by overcompensation for another joint condition. Therefore, the examiner opined that the Veteran's right knee disorder was not caused or aggravated by his service-connected low back disability, as there was no anatomic or physiologic nexus with which to connect the conditions. The VA examiner clearly reviewed the STRs and other evidence in the claims folder. The examiner provided an opinion that is supported by and consistent with the evidence of record. There is no positive evidence to the contrary of this opinion in the claims file. The treatment records do not provide contrary evidence. As such, service connection on a secondary basis is not warranted. In reaching this decision, the Board has considered the Veteran's arguments in support of his claim. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Regarding the theory of direct service connection, although the Veteran is competent to report that he injured his right knee during his active military service, which resulted in his current right knee disorder, the Board must still weigh his lay statements against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In making this credibility determination, the Board does not find the Veteran's statements concerning the etiology of his right knee disorder to be credible, since his STRs make no reference to a right knee injury, and since the first report of right knee problems was not until 2004, more than twenty-five years after his separation from the active duty. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); see also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). It is important to point out that the Board does not find that the Veteran's lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson, 581 F.3d at 1313, quoting Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, the Veteran's statements are found to be incredible because they are inconsistent with the evidence of record, which fails to show right knee complaints or treatment in service, and which contains only a negative nexus medical opinion. For the reasons set forth above, the Board finds that the Veteran's lay statements that his symptoms have been present since his active military service are not credible. Therefore, these statements do not warrant a grant of service connection or a determination that further development of the medical evidence is required. All other evidence of record, aside from the Veteran's statements in support of this current claim, is unfavorable to the claim for service connection for a right knee disorder. Regarding the theory of secondary service connection, although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case (whether the right knee disorder was caused or aggravated by the service-connected mechanical low back pain with lumbarization of L1 and scoliosis) falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (laypersons not competent to diagnose cancer). As a layperson, it is not shown that the Veteran possesses the medical expertise to provide such an opinion. The only medical opinion of record addressing the claimed relationship is negative. No competent medical opinions linking his right knee disorder to his service-connected mechanical low back pain with lumbarization of L1 and scoliosis have been presented. The VA examiner considered the Veteran's lay assertions in forming the medical opinion, but provided a negative nexus opinion. Thus, as previously stated, the medical evidence of record is only against the Veteran's claim. The Board notes that under the provisions of 38 U.S.C. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim of entitlement to service connection for a right knee disorder, to include as secondary to the service-connected mechanical low back pain with lumbarization of L1 and scoliosis, is not warranted. ORDER The claim of entitlement to service connection for a right knee disorder, to include as secondary to the service-connected back disability, is denied. REMAND The Veteran has reportedly been unemployed since 2007. His usual occupation was that of a food server. At the last VA examination, the examiner opined that the back disability would preclude employment requiring prolonged standing or walking or heavy lifting. As the Veteran does not meet the schedular requirements for a TDIU, the issue should be referred to the Director of VA's Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16(b) (2017). Accordingly, the case is REMANDED for the following actions: 1. Submit the question of entitlement to TDIU under 38 C.F.R. § 4.16(b), to the Director of Compensation Service for adjudication. 2. Then, readjudicate the TDIU claim. If the benefit sought on appeal remains denied, issue a SSOC to the Veteran and his representative. Then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs