Citation Nr: 1802108 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-34 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his Wife ATTORNEY FOR THE BOARD T. Hanson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1964 to June 1966. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for the right knee disability. In August 2017, the Veteran and his wife provided testimony at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. The undersigned left the record open for 60 days to allow the Veteran to submit additional evidence. Thereafter, the Veteran's representative requested an additional 60 days to submit evidence. Additional evidence was received in December 2017. FINDING OF FACT The Veteran does not have a current right knee disability that had its onset in service, and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Neither the Veteran nor his representative has referred to any deficiencies in either the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, United States Supreme Court, Oct. 3, 2016) (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 a Veteran's failure to raise a duty to assist argument before the Board). Thus, VA has satisfied its duties to notify and assist and the Board may proceed with appellate review. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). II. Relevant Legal Principles Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Moreover, pursuant to 38 C.F.R. § 3.309, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a chronic disease, such as 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, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). III. Facts and Analysis The Veteran asserts that his right knee disorder is related to service. More specifically, the Veteran asserts that while clearing the beachhead in 1964, an eel grabbed his knee and caused it to separate while he was trying to escape. See Veteran's Application for Compensation and/or Pension, see also Hearing Transcript at page 4. During the August 2017 Travel Board hearing, the Veteran further testified that his wound was wrapped by a Marine Corpsman, following the incident, and he returned to duty about an hour later. He was not ordered to light duty. The Veteran also testified that he did not seek further treatment for the incident while in the military because he did not want to go to sick bay. It is the Veteran's contention that as a result of his injury, he experiences constant pain and his knee has given out hundreds of times. The Veteran also testified that he receives all healthcare through VA and first sought medical treatment for his right knee in 2009. The Veteran's wife, of twenty-six years, testified that she has observed his knees giving out five to six times over the last month while he was standing in place. The record shows that the Veteran only has a current diagnosis of right knee arthralgia, which is pain in a joint. See Hamilton v. Principi, No. 02-1233, 2004 U.S. App. Vet. Claims LEXIS 633 (Vet. App. Sept. 23, 2004) ("Arthralgia is defined as "pain in a joint." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 147 (27th ed. 1988).") (nonprecedential unpublished memorandum decision); see, e.g., June 2012 VA Treatment Note. VA treatment reports, dated February 2009 through November 2013, note routine treatment for right knee arthralgia. An x-ray dated in November 2011 was unremarkable. Pain alone, without a diagnosed or identifiable underlying condition, is generally not a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Moreover, the Veteran's service treatment records show that on enlistment examination into the United States Naval Reserves in March 1962, a scar of the right patella was noted. Thereafter, the service treatment records show that the Veteran was seen for complaints that included a finger injury, athlete's foot, nasal congestion and cough, and colds, but otherwise silent for any indication of right knee problems in service. Additionally, a separation examination report dated in June 1966 showed normal lower extremities. Naval Reserve medical examination reports, dated in May 1967 and March 1968, also showed normal lower extremities and denials of a "trick" or locked knee by the Veteran. A July 2011 VA examination was requested by the RO based on a finding that the Veteran was a combat veteran. The Veteran's service records do not show that he served in combat; similarly, the Veteran does not contend that his right knee was injured in combat. During the July 2011 examination, the Veteran again stated that he injured his right knee after being attacked by an eel. Following a physical examination and review of all service records, claims folder, and post-service medical records, the examiner opined that the Veteran's claimed right knee condition was not related to military service. The examiner reasoned that he was unable to find any documentation or an evaluation for or diagnosis of a knee condition during the Veteran's military service other than noting a one inch scar to the patella. The Board left the record open for 60 days to allow the Veteran an opportunity to submit additional evidence, to include that of a medical opinion establishing a nexus between the Veteran's claimed disability and his military service. In response, the Veteran submitted medical records dated February 2009 through December 2017. Yet, none of the treatment notes include an opinion as to the etiology of the Veteran's claimed right knee condition and at best, include complaints of a knee injury since 2009 and a diagnosis of arthralgia since 2012. In a May 2015 treatment note, the examiner stated that she believed that the Veteran's falls are a result of peripheral neuropathy. The Board notes that the Veteran was service connected for peripheral neuropathy of the right upper extremity, associated with diabetes mellitus, Type II as of September 2013 and was service connected for peripheral neuropathy of the left and right lower extremities, associated with diabetes mellitus, Type II as of June 2014. A July 2015 treatment note reveals that the Veteran fell and hit his head on concrete. As a result, he lost consciousness for a short time. A September 2015 physical therapy note reveals that the Veteran had fallen twice since his last visit, once in the parking lot and another at home after his knees gave out. A November 2015 physical therapy note reveals that the Veteran had not fallen in two weeks and that he had improvement in stability. A May 2016 physical therapy note reveals that the Veteran complained that he just falls. More specifically, he stated that his right leg just gives away and that it has been happening since 1965. A November 2017 medical note reveals that the Veteran complained of continual falling. At the time of examination, the Veteran again reported being attacked by an eel. The examiner noted that the Veteran had a skin laceration and right knee swelling and the Veteran reported that he had knee buckling and falls ever since the incident. The Veteran did not recall any MRI of the right knee or any surgical repair. The Veteran complained of weakness, rather than pain. The examiner also noted that the Veteran uses a walker, cane, and electric scooter to ambulate. In light of all of the above, the Board finds that the evidence of record does not persuasively show that any disability of the right knee is related to an event of the Veteran's military service. The Board appreciates the Veteran's testimony that he did not seek further treatment for the incident while in the military because he did not want to go to sick bay. To the extent this testimony is being offered as proof that the Veteran did have chronic right knee problems in service but they were not documented in the service treatment records, the Board finds the medical and lay evidence contemporaneous to his service more reliable and therefore more probative than his current assertions and recollections. Service treatment records do show he was seen on several occasions for other complaints. He was able to continue to serve following the alleged injury without a physical limitation profile due to his knee. His lower extremities were noted to be normal upon examination for separation purposes in June 1966. The Veteran also contends that he has suffered from pain and buckling of his knee since service. On examination of his lower extremities in subsequent Naval Reserve examinations, dated in May 1967 and March 1968, however, no abnormalities were found. He also specifically denied relevant complaints in the 1967 and 1968 Reports of Medical History. Thus, the medical and lay evidence contemporaneous to his service does not persuasively support the Veteran's contention that he had chronic right knee problems in service that continued after service and ever since service. Additionally, the lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, the earliest clinical evidence of a right knee condition is from June 2012, at which time the Veteran was only diagnosed with arthralgia of the knee. The Board has also considered the Veteran's statements regarding the etiology of his claimed right knee condition. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the diagnosis and etiology of knee pain requires specialized training and medical diagnostic testing and thus, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). The opinion of the July 2011 VA examiner, who found it less likely as not that the Veteran's knee condition was related to his military service, is the only probative evidence of record as to the etiology of the Veteran's claimed knee condition. Thus, the preponderance of the evidence weighs against a finding that the Veteran has a right knee disability etiologically related to service. 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 Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a right knee disorder is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs