Citation Nr: 1803066 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 14-12 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a left knee disability, including as secondary to service connected right knee disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD T. Fales, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to July 1967. He served honorably in the United States Army. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. FINDING OF FACT The Veteran's left knee disability was not incurred in or aggravated during service; left knee arthritis was not manifested within a year of service; and the Veteran's left knee disability was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disability, including as secondary to service-connected disability, have not been met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Secondary service connection may be established for a disability that is proximately due to, or the result of, or aggravated by a service connected disease or injury. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service connected disability; and (3) that the current disability was either (a) caused, or (b) aggravated by the service connected disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Direct service connection is warranted where the evidence of record 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For certain "chronic diseases," like arthritis, presumptive service connection is available. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b). For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. See id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the chronic disease became manifest to a degree of 10 percent within 1 year from 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. See 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purpose of evaluating lay evidence, to include a veteran's statements about the circumstances of his service, competent evidence is "limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptomatology of an injury or illness (such as pain or the visible flatness of his feet), a lay person is "not competent to opine as to medical etiology or render medical opinions." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Competent lay evidence may or may not be credible, that is, "plausible or capable of being believed." Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board may consider self-interest, bias, and consistency, among other factors, in evaluating credibility. See id. However, "the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Although the Board must adhere to guidelines when it evaluates lay evidence, "[t]his is not to say that the Board may not discount lay evidence when such discounting is appropriate. Rather, the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc." Id. at 1336-1337. If the Board finds that competent lay evidence is not credible, then the Board affords that evidence no weight in its decision. Analysis Here, the Veteran's primary contention is that his left knee disability is proximately due to or the result of his service connected right knee disability. However, in his April 2014 substantive appeal, he also contended that his "left knee was also injured in service and should be service connected." Accordingly, the Board will address his secondary service connection claim first, followed by his direct service connection claim and associated theories of entitlement. Secondary Service Connection The Veteran has a current left knee disability. During the pendency of this claim in April 2012, a VA examiner diagnosed him with "[l]eft knee internal derangement, bilateral advanced DJD". Accordingly, the first element of secondary service connection has been met. Next, the Veteran is service-connected for right knee degenerative joint disease status post meniscectomy (right knee disability). Accordingly, the second element of secondary service connection has been met. Turning to the third element, however, the evidence of record does not show that the Veteran's current left knee disability is proximately due to, or the result of, or aggravated by his already service-connected right knee disability. In October 2015, a VA clinician was asked to provide a medical opinion as to whether the Veteran's current left knee disability is proximately due to, or the result of, or aggravated by his already service connected right knee disability. The clinician responded by opining that the Veteran's left knee disability is not proximately due to, or the result of, or aggravated by his right knee disability because there are post-service injuries to the Veteran's left knee in 1975 (workplace), 1978 (climbing), and 2010 ("moving 15-20, 100-150lb rocks"); the Veteran's left knee having previously undergone a meniscectomy put it "at increased risk of the development of osteoarthritis"; and there are no "persistent mechanical gait abnormalities" in the Veteran's medical records that could cause "the left knee to worsen due to the right knee." Accordingly, the third element has not been met and the Veteran's secondary service connection claim is not warranted. At the same time, the Board acknowledges that in May 2015 the Veteran's private physician opined that "[d]uring the years of knee pain that he experienced in his right knee he favored his left knee. This was a contributing factor in his early degenerative joint disease in the left knee." However, neither the private physician's opinion nor the full examination report from which that opinion is derived mention any of the Veteran's post-service left knee injuries, an omission that was noted by the October 2015 VA clinician who opined that the private physician "does not appear to have had access to the records concerning previous left knee injury." Further, the 2015 VA examiner noted after a review of the record, "[n]ot found in the medical record are persistent mechanical gait abnormalities which might be a reason for the left knee to worsen due to the right knee." Consequently, the Board has given more weight to the October 2015 VA clinician's opinion than the private physician's opinion because the VA opinion was based on a more comprehensive review of the evidence. In sum, the Veteran's secondary service connection claim is not warranted because the medical evidence of record does not show that his left knee disability is due to, or the result of, or aggravated by his service connected right knee disability. Direct Service Connection In this case, there is a current disability associated with the Veteran's left knee. As previously noted, during the pendency of this claim in April 2012, a VA examiner diagnosed him with "[l]eft knee internal derangement, bilateral advanced DJD" (left knee disability). Accordingly, the first element of direct service connection has been met. Turning to the next element of direct service connection, in April 2014 the Veteran claimed he sustained a left knee injury in service. The Board again notes that his 1967 medical board proceedings affirmatively state that, other than his right knee, his remaining systems were "unremarkable" and "negative" for other problems. Turning to the third element of service connection, the preponderance of the evidence of record is against a finding that the Veteran's current left knee disability is related to service. The only evidence that supports the claim in this regard is the Veteran's statements. However, as a layperson, he lacks the medical expertise required in order to provide an etiology as to a disability like degenerative joint disease of the left knee. This is particularly true where, as here, the record reflects numerous, post-service left knee injuries. The most probative evidence of record, the 2015 VA medical opinion, concluded that his left knee meniscectomy, which was the result of a post-service injury in 1975, rather than his military service, is the more likely etiology of his current disability because the meniscectomy put his left knee "at increased risk of the development of osteoarthritis." As the Veteran's current left knee disability relates to arthritis, presumptive service connection and continuity of symptomatology theories of entitlement are implicated even though they have not been specifically contended by the Veteran. However, because the preponderance of the evidence does not show that left knee arthritis was manifested during service or within the year following service or that he has had continuous arthritic symptoms since that time (see, for example negative findings at the time of the 1967 medical board examination), a grant of service connection under these theories of entitlement is not warranted. ORDER Service connection for a left knee disability, including as secondary to service connected right knee disability, is denied. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs