Citation Nr: 1800972 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 12-35 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for right knee strain, to include as secondary to service-connected left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Harner, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from August 1977 to August 1981, and in the U.S. Army from October 1981 to April 1988, and from January 1989 to July 1998. This matter is before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In a November 2012 substantive appeal, the Veteran requested a videoconference hearing before a Veterans Law Judge. The hearing was scheduled for April 2015, but the Veteran did not appear with no good cause shown. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.704(d), (e) (2017). In May 2015 and August 2017, the Board remanded the appeal for further development. The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. FINDING OF FACT The Veteran's right knee pain and patellar tendinitis resolved during the period of the appeal, first manifested greater than one year after active service, and was not caused or aggravated by any aspect of service or by a service-connected left knee disability. CONCLUSION OF LAW The criteria for service connection for a right knee disorder are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). Neither the Veteran nor his representative has raised any 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. Secondary Service Connection To prevail under a theory of secondary service connection, there must be 1) evidence of a current disorder; 2) evidence of a service-connected disability; and 3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. Wallin v. West, 11 Vet. App. 509, 512 (1998). The regulations also provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Service treatment records show that the Veteran injured his left knee on two occasions in 1989 with recurrent knee pain. Clinicians diagnosed Osgood-Schlatter syndrome of the left knee. Records are silent for any right knee symptoms or injuries. The records include a March 1998 retirement medical history questionnaire in which the Veteran denied any "trick or locked knee." In an April 1998 pre-discharge VA examination, the Veteran reported left knee pain after running. The examiner diagnosed left knee degenerative joint disease and old healed Osgood-Schlatter's disease. There was no report by the Veteran or observation by the examiner of any deficits of the right knee. In September 1998, the RO granted service connection for left knee degenerative joint disease. The RO received the Veteran's claim for service connection for the right knee in April 2007. A June 2007 VA examination of the left knee was silent for any right knee symptoms or deficits. The Veteran first reported right knee pain to a private medical examiner in November 2007. The private examination from November 2007 did not make any assertions about the Veteran's right knee strain being secondary to his left knee disability. The Veteran did state that his right knee had been sore for about six weeks, but his left knee was still worse. Imaging studies of both knees showed decreased medial joint spaces. The physician generally diagnosed old Osgood-Schlatter with patellar tendinitis, PLICA syndrome, and hamstring contracture without a clear specification of which knee was involved. In a January 2008 follow up, the physician noted some pain and tenderness of the right patellar insertion but no mechanical signs or symptoms and diagnosed a "stable right knee." The Veteran was provided a VA examination in June 2010. Here the Veteran reported right knee pain resulting from him jumping in and out of bucket trucks at work in his civilian occupation while trying to favor his left knee. In the symptoms summary, the VA examiner found no deformity, instability, stiffness, incoordination, decreased speed of joint motion, no episodes of dislocation or subluxation, no locking episodes, no effusions, and stated that the condition did not affect the motion of the joint. The examiner concluded that, while the Veteran may favor his left knee, there was no medical evidence of abnormal weight bearing which would cause a strain on his right knee. After a remand, the Veteran underwent another VA examination in August 2015 where he told the examiner he was feeling pain in his right knee that was similar to pain in his left knee. He said a doctor told him the cartilage in his right knee was gone, but he had not gone for a follow up appointment in three years. Additionally he said he did not treat his right knee with injections, nor had he been referred for physical therapy. He again stated that his right knee issues were from jumping in and out of bucket trucks at work. The range of motion (ROM) examination found nothing abnormal, and pain was only experienced during flexion but not during weight bearing, and the pain did not cause functional loss. The examiner found no evidence of joint instability. Furthermore, the examiner stated that the previous right knee issue had resolved, and that the strain he experienced before was likely due to his employment, but no objective evidence showed a current right knee condition or connection to his service-connected left knee disability. The examiner additionally noted that injuries in one leg are unlikely to lead to major detrimental effect on the other lower extremity, and says there is no objective evidence that the alteration of the Veteran's gait has caused problems with his right knee. After a second remand the Veteran was furnished with another C&P examination in August 2017. The VA examiner was specifically asked if it was at least as likely as not that the Veteran's right knee strain was aggravated by the service-connected left knee disability. The exam was consistent with previous exams. The VA examiner opined that the right knee strain was not caused or aggravated by the left knee disability. The examiner stated that there was no evidence of a chronic right knee condition, and no evidence existed suggesting the right knee strain was caused by the service-connected left knee disability. The three VA examinations are consistent in stating that the Veteran's right knee condition was not caused by favoring his service-connected left knee because no objective evidence demonstrated that favoring his left knee caused additional strain to his right knee. The examiner points to studies, lack of evidence, and the fact that the examinations of the right knee are normal and his knee has not caused any functional issues. Additionally, the Veteran does not have a current diagnosis for his right knee; as noted in the 2015 and 2017 examinations where the examiner says the right knee strain resolved itself over time. The Veteran also does not seek therapy for his right knee, nor does he do any other medical treatment for pain or functional loss. Finally, the examiner opined that his earlier right knee strain was likely caused by his employment duties as they require him to jump in and out of bucket trucks. Based on the examinations, the evidence, and all medical records the Veteran's claim for a right knee disability, secondarily connected to his left knee disability, is denied. However, direct service connection for the right knee must be addressed. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. Direct Service Connection Generally, to establish service connection a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. The Board refers to the above summary of the history of right knee deficits during and after service. The Veteran does not contend and service treatment records do not show any right knee symptoms or deficiencies in service or within one year of discharge from active service. The earliest report of any right knee problem was in November 2007 when the Veteran reported some right knee discomfort. During the period of the appeal, the private physician in January 2008 noted some pain and tenderness of the right patellar insertion but no mechanical signs or symptoms and diagnosed a "stable right knee." An imaging study of the right knee showed decreased medial joint spaces. However, subsequent VA examinations in 2010 and 2015 showed that any previous right knee abnormality had resolved. Nevertheless in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Therefore, the Board finds that the Veteran did have some mild right knee pain or strain during the early portion of the period of the appeal that resolved. The disorder first manifested in 2007, many years after active service and was not caused or aggravated by any aspect of active service. The Veteran did not contend otherwise. Therefore, service connection on a direct basis is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a right knee disability, including as secondary to a service-connected left knee disability is denied. ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs