Citation Nr: 1802703	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  12-15 125	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for a left knee disability (claimed as joint pain due to an undiagnosed illness).  


REPRESENTATION

Appellant represented by:	Sean A. Ravin, Attorney


ATTORNEY FOR THE BOARD

Robert Batten, Associate Counsel



INTRODUCTION

The Veteran had active duty service from November 1986 to February 1992, including service in Southwest Asia.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.   

An October 2015 Board decision denied service connection for a left knee disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion of Remand (JMR), in May 2016, the Court vacated the Board's decision and remanded the claim to the Board for action consistent with the Joint Motion.  

The Board remanded this case in September 2016 for further development in keeping with the JMR. The Board finds there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.)   


FINDING OF FACT

The evidence of record does not demonstrate that the currently diagnosed left knee disability is the result of disease or injury incurred in or aggravated by the Veteran's active military service.  


CONCLUSION OF LAW

The criteria for a grant of service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist 

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II. Service Connection Generally 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). "To establish a right to compensation for a present disability, 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- the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (internal quotation marks omitted). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017).

Service connection may be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness.

VA is authorized to pay compensation to any Persian Gulf veteran suffering from a "qualifying chronic disability."  For purposes of 38 C.F.R. § 3.317, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (a) an undiagnosed illness; or (b) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; or (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases).  38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a), (c). 

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b).

Certain chronic disabilities, including arthritis, are presumed to have been incurred in or aggravated by service if the disability manifest to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in-service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. 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 v. Nicholson, 492 F.3d 1372, 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the Veterans Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

After considering all information and lay and medical evidence of record, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). In determining whether service connection is warranted for a disease or disability, VA must determine whether the evidence supports the claim, or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

III. Left Knee

The Veteran's service treatment records reveal complaints, in June 1989, of left knee pain, which had persisted for two and half weeks. The Veteran reported pain and tightness after running. On examination, the Veteran had full range of motion, but tenderness and a small amount of deformity were observed. Another June 1989 record noted pain in the left knee and concluded with the assessment of muscle strain, left knee. An undated record noted a complaint of left knee injury one month ago and indicated he was given profile for two weeks. The Veteran indicated the knee gave with running but only after activity. He also reported a positive tight feeling with outward pushing sensation to the lateral left knee. The assessment was muscle strain of the left knee. In August 1989, the Veteran complained of pain in the left knee that had persisted for three and half months. On examination, swelling and deformity were not observed, but tenderness was found.  

In March 2003, the Veteran's private physician noted that Veteran had an injury in March 2003. The Veteran reported that he had injured his left knee while at the Federal Law Enforcement Training Center. The Veteran underwent an MRI of his left knee. The Veteran's private physician diagnosed the Veteran with left knee joint effusion and multifocal bone contusion; a complete anterior cruciate ligament tear; a medial meniscocapsular tear; and a medial collateral ligament strain. The Veteran had surgery on his left knee to repair his ACL and medial meniscus. A May 2008 private treatment note from the Veteran's private physician stated that the Veteran had achieved maximum medical improvement in April 2003 and that his symptoms began in March 2003.

In May 2010, the Veteran underwent a VA joint examination. The Veteran stated that he got an aching feeling in his knees in cold weather. The examiner found no symptoms of inflammatory joint disease. The Veteran did not have instability locking or swelling. The Veteran stated that he experienced some swelling during cold weather. The examiner stated that the Veteran did not have true flare-ups and did not have incapacitating events. The examiner noted that the Veteran did not have a knee injury in-service. The examiner noted that the Veteran had surgery from a ruptured ACL in his left knee four years prior to the examination. The examiner found that the Veteran had normal bilateral knees with a left ACL repair. The examiner reasoned that the Veteran had an absolutely normal examination on both his knees. The examiner stated that there was absolutely no indication of any time of inflammatory disease symptomatically or mechanically. Therefore, the Veteran's knee issue was not caused by service. 

The Veteran underwent another VA joint examination in January 2014. The Veteran stated that he had bilateral knee pain during service. The Veteran stated he did not seek medical attention. The Veteran reported that he had an ACL injury in 2005 during work related training. The Veteran stated he had swelling in both knees during the morning and treated his symptoms with massage and aspirin. The examiner diagnosed left knee degenerative joint disease, status post ACL repair. The examiner found a unremarkable right knee with findings compatible with an ACL repair and early degenerative joint disease of the left knee.  The examiner concluded the knee complaints were less likely as not due to a chronic undiagnosed illness as x-rays showed radiological findings consistent with disease with a clear etiology. The examiner reasoned that the degenerative joint disease was associated with aging, trauma, and genetic predisposition. The examiner further found the knees were not related to the claimed injury in-service as it seemed related to current work, trauma, and not related to service. 

In July 2015, the Veteran underwent another VA knee examination. The Veteran reported that the Veteran had a knee injury in 2003 to 2004. The Veteran stated he had surgery on his knee, but he had a catching sensation with aching. The examiner opined that the Veteran's current left knee disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that based on the Veteran's stated history, his knee condition was work-related, and the Veteran denied previous military related ongoing condition in his historical account. The examiner further reasoned that the Veteran's current left knee injury was related to his work related injury, which x-ray findings from the May 2010 and January 2014 examinations confirmed. 

In June 2017, the Veteran underwent another VA knee examination. The examiner opined that the current left knee disability was not caused by or the result of active duty. The examiner noted that the Veteran was treated for left knee pain in June and July of 1989, while the Veteran was in-service. The examiner stated that Veteran's knee pain was most likely over use of the knees from running. The examiner noted that at the time the Veteran was diagnosed with a strain and pain in his knees, but there were no concerns regarding structure of the knee. The examiner noted that that the Veteran's service treatment records indicated no trauma to the knee. The examiner explained that pain with running is common and does not mean there is a structural problem with a knee. The examiner reasoned that the only offered analysis for the Veteran's knee disability was a post-service on the job injury. The examiner further stated that there is a latency period of 13 years between the Veteran's service and his first reported knee injury. 

In October 2009, the Veteran stated that he had joint pain that was an undiagnosed illness. The Veteran stated that he had difficulty walking and running. In June 2012, the Veteran stated that he did not have swelling or tenderness in his knee during the May 2010 examination because he did not have any activity that day because he went straight to the examination after he woke up. In May 2015, the Veteran stated that the joint pain in his knees was due to an undiagnosed illness.  He stated that his left knee would lock up and pop with every movement. In August 2015, the Veteran stated that his left knee pain manifested during service. He stated that his meniscus and ACL was damaged in-service and over time tore due to the fact that he did not know about his knee injury. In September 2017, the Veteran stated that he had constant pain in his left knee and that he had told the VA examiner from the June 2017 examination that he could not run. The Veteran stated the VA examiner falsely dictated the report. 

In October 2009, the Veteran's spouse stated the Veteran had joint pain. She stated the pain made it difficult for the Veteran to walk and maneuver. She stated she met the Veteran in early 1993.

The Board finds the opinion of the June 2017 VA examiner to be persuasive and probative in finding that the current left knee disability is not related to service. The examiner's findings were based on a review of the evidence, to include the service treatment records and diagnostic testing, which did not substantiate a finding that the Veteran sustained a left knee disability in service and specifically an injury to the structure of the knee. The examiner considered the complete record and the Veteran's contentions, and provided an explanation as to why the evidence does not support a finding that the Veteran current left knee disability is related to service. The Board finds this opinion is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).

The Board finds that the Veteran's statement his left knee pain began in-service competent, but not credible. Private treatment records note that the Veteran left knee underwent surgery in March 2003. The treatment records indicated that the Veteran had a work injury and it appears that the Veteran did not mention any reported long standing left knee symptomatology since service. Further, the Veteran's private physician noted in May 2008 that the Veteran's left knee symptoms began in March 2003. Therefore, as the statements made in the course of seeking medical care contradict the Veteran's current statements made in the course of seeking benefits the Board does not find the statements credible.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997). The Board finds the Veteran's spouse's statements competent and credible.  The Veteran's spouse's statement provides limited probative weight. The Veteran's spouse's statement referred to all of the Veteran's joints, many of which are currently service connected. The notion that the Veteran had difficulty walking and maneuvering due to joint pain is probative to this case. However, the Veteran's spouse did not specify the Veteran's left knee which limits the probative weight of the statement considering the Veteran's other service-connected disabilities. 

Initially, the Board notes that the Veteran asserted that his left knee should be service connected under 38 C.F.R. § 3.317(b); however, the Veteran currently has a diagnosis of a degenerative joint disease, that was confirmed at his January 2014 VA examination. As such, the provisions of section 3.317(b) do not apply.  

The Board finds that the Veteran has a current disability of degenerative joint disease and status post ACL tear. The Board finds that the Veteran had some left knee symptomatology in service. However, the Board finds no nexus between the Veteran's in-service symptomatology and his current disability because the most competent, credible, and probative evidence found that the Veteran's left knee was caused by a work-related injury and not related to the Veteran's service. 

The Board also finds there is no evidence of arthritis of the left knee within one year following discharge from service. The earliest probative evidence of the Veteran's any knee condition was in 2003. Therefore, the Veteran's left knee arthritis cannot be presumed to be caused by service. Further as his first report of a knee condition was in 2003, the Board finds no competent and credible evidence of continuity of symptomatology as his first report of knee pain came many years after he left service. Accordingly, service connection for a left knee disability must be denied.

In light of the above, the Board finds that the preponderance of the evidence is against a finding that the left knee degenerative joint disease and a post status ACL repair are related to service. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim for service connection for left knee disability is denied.





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ORDER

Service connection for a left knee disability is denied.




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs