Citation Nr: 1804341 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 10-24 235 ) 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, to include as secondary to a service-connected right foot disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) from February 1980 to March 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal was previously before the Board in January 2016, at which time it was remanded for additional development. FINDING OF FACT The Veteran's right knee disorder is unrelated to service, and is not caused by or aggravated by her service-connected right foot disability. CONCLUSION OF LAW The criteria for establishing service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Direct Service Connection 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. 38 U.S.C. 1110, 1131 (2012); 38 C.F.R. 3.303(a) (2017). Regarding the Veteran's National Guard service, "active" military service includes active duty and any period of active duty for training (ACDUTRA) during which the Veteran was disabled or died from a disease or injury incurred or aggravated in the line of duty. Establishing entitlement to service connection for a disability on a direct basis generally requires evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the U.S. Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Because the Veteran has been diagnosed with degenerative arthritis of the right knee, the provisions of 38 C.F.R. § 3.303(b) apply here. With regard to the first element of service connection, the Veteran was diagnosed with right knee patellofemoral syndrome and degenerative joint disease in the March 2009 VA examination; a diagnosis of degenerative arthritis was given per the most recent October 2016 VA examination. See also VA treatment records (variously noting right knee degenerative joint disease and osteoarthritis). Thus, she has a current disorder of the right knee. With respect to the second element, the Veteran testified that she experienced pain to her right knee and foot following an injury that occurred during ACTDUTRA. Indeed, service treatment records reflect that she was seen for an injury to her right foot. See, e.g., February 1980 Statement of Medical Examination and Duty Status (noting she "fell to the ground and someone else stepped on her foot"). Additionally, in a closely dated post-service statement of March 1980, she explained that she "went on sick call, with sore knee and foot. I was told to get my foot checked out first and then worry about my knee." Because of the Veteran's statements regarding right knee pain at the time of her right foot injury her current diagnosis of arthritis, which is a chronic disease listed in 38 C.F.R. § 3.309(a), the Board has considered the provisions of both 38 C.F.R. § 3.307 and 38 C.F.R. § 3.303(b) regarding continuity of symptomatology. However, despite the Veteran's statements of knee pain at the time of initial in-service injury, there is no competent and credible evidence of continuity of symptomatology since service. The Board recognizes that, in a June 2010 statement, the Veteran described having pain from "time to time" until 2007, at which time the pain became severe. However, VA treatment records instead describe the onset of knee pain that occurred when she arose from kneeling in early March 2007. See March 2007 VA treatment report ("Chief Complaint: right knee pain 2/10 for a couple of weeks"); March 2007 VA treatment report ("kneeling in prayer knee hurt 2 weeks yesterday"); April 2007 VA treatment report ("One mo[]nth of right knee pai[n] located medially. O[c]curred as she arose from a kneeling position."). Thus, to the extent that her claim of knee symptoms from "time to time" was meant to convey an assertion of continuity of symptoms ever since service, such assertions lack credibility, and thus probative value, because they are contradicted by her statements made elsewhere in the records when receiving treatment for her knee, which instead convey a duration of chronic knee pain since early March 2007. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether statements submitted are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). Moreover, a multitude of VA and private treatment records, as well as Social Security Administration records, document the Veteran's other ongoing medical conditions prior to 2007, and it would be reasonable to expect that symptoms of chronic right knee pain, if present before 2007, would have likely also been documented. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible); see Kahana v. Shinseki, 24 Vet.App. 428, 438 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, as opposed to cases in which there is evidence that is relevant either because it speaks directly to the issue or allows a reasonable inference to be drawn by the Board as factfinder). Here, early degenerative changes were first identified on imaging only following the Veteran's complaints of pain occurring after kneeling since early 2007. Thus, the evidence is against a finding that arthritis was present in service, or manifested to a compensable degree within one year thereafter, or that continuity of symptomatology existed since service. Nor does the evidence otherwise establish a nexus between service and her current complaints. In this case, the October 2016 VA examiner opined it was "NOT likely that the Veteran's right knee disability was the result of her in-service injury during her period of ACDUTRA." (Emphasis original). The examiner explained that the service treatment records were silent for a right knee condition, and post-service medical records were silent for a right knee condition until 2007. Due to the long period of silence of a right knee condition, the examiner concluded that "no nexus can be made to service." Elsewhere in the report, the examiner further explained the likely etiology of her current disability, explaining that her right knee disability was first "diagnosed as 'early' de[ge]nerative changes in 2007, and now severe degenerative arthritis, is the result of the natural aging process, and only aggravated by obesity." See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (holding that medical examination reports "must be read as a whole"); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (explaining that the Court must review an examination report "as a whole" to determine whether the Board clearly erred in assessing the adequacy of the report). Even assuming the competency and credibility of the Veteran's statements that she experienced both knee and foot pain at the time of her documented right foot injury, the medical evidence does not reflect that these complaints represented the onset or early manifestation of a chronic right knee condition. To the contrary, the October 2016 examiner emphasized that only "early" degenerative changes were found approximately 27 years after the event. Because the VA examiner's evidence is based on facts supported by the record, the Board assigns high probative value to this opinion. Importantly, there is no other competent nexus evidence of record that establishes a link between the Veteran's current right knee disorder and service. In this regard, the previous March 2009 VA examiner also identified a likely etiology that is unrelated to service; specifically, consistent with the October 2016 VA examiner's conclusion, it was instead felt that her arthritis was "more age-related progression." To the extent that the Veteran herself asserts that her current knee disorder may be related to the specific in-service injury, this is conclusion that requires medical expertise. Here, the etiology of her knee diagnoses fall outside the realm of common knowledge. As a layperson, she has not demonstrated that she possesses the knowledge and expertise to provide an opinion as to the question of medical causation in order to competently address whether her knee disorder is related to service. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer). Rather, the Board finds the VA examiners' opinions as to etiology, which acknowledged and considered the initial clinical testing and imaging findings from 2007 when early degenerative changes were first diagnosed, to be the most probative evidence of the etiology of her current knee disorder. It simply cannot be said that the evidence rises to the level of equipoise with respect to the element of a nexus between active duty service and current complaints. Based on the foregoing, the Board finds that service connection is not warranted for a right knee disorder on a direct basis. II. Secondary Service Connection Service connection may also be established for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. As the Veteran filed her claim in May 2007, the amendment is applicable to the current claim. It is the Veteran's main belief that her service-connected right foot disability is caused or aggravated her right knee condition. In her formal appeal to the Board, she very adequately communicated the basis of her contention: I believe that [] my [right] foot service connected injury has had my gait to not be correct for many years and it would have to affect my [right] knee. I have not walked like a normal person since my injury, in 1979. . . On 4/11/10 I fell due to my [right] foot & [right] knee gave out from under me. . . . I don't understand how you cannot see that my [right] knee issues are not directly caused by my [right] service connected foot condition when I have not been able to walk correctly for 30 years. And that I did complain about knee pain when the original injury occurred but they focused on my [right] foot and not my knee is not my fault. Then being on crutches and not putting my weight on my [right] leg/knee, the pain was not as intense as in my [right] foot because I obviously got relieve from being on crutches and later using a cane and not bearing weight on the leg & knee. . . . [T]here isn't a lot that can be done for my [right] knee but that doesn't mean that my [right] knee pain doesn't stem from my service connected [right] foot injury. As I stated, I have had improper gait for 30 years due to my service connected injury and it is ridiculous to say my [right] knee issues are not caused from my service connected injury of my [right] foot. Here, the Board recognizes that treatment records reflect several notations of an abnormal gait for many years. However, the March 2009 VA examiner specifically addressed question of whether the Veteran's right knee disorder is secondary to the right foot injury due to abnormal gait. That examiner noted that "[b]ecause she has bilateral feet injury, she does not necessary[il]y favor one over the other one. . . . I expect [her] disorder to be more age related progression rather than from an abnormal gait." The October 2016 VA examiner also determined that it was less likely as not that the right knee disability was either due to, or aggravated by, her service-connected right foot disability, explaining: Veteran's [r[ight knee disability, diagnosed as "early" de[ge]nerative changes in 2007, and now severe degenerative arthritis, is the result of the natural aging process, and only aggravated by obesity. Currently, [her] bilateral knee arthritis is not related to bilateral foot sesamoiditis, no nexus can be made to the feet. I agree with previous examiner, [] after reading his report from 2009. . . . There i[s] no medical literature, nor objective evidence that supports an aggravation of [right] knee beyond natural progression by the SC foot condition. Veteran has a BILATERAL FOOT CONDITION, where she had 3 surgeries BILATERALLY on her feet, that are unrelated to a service. She has BILATERAL severe degenerative osteoarthritis that is a result of her age and morbid obesity, not any foot condition. See October 2016 VA examination report (emphasis original). Here, the Board finds the VA examiners' opinions on etiology, both of which essentially found age-related progression to be the most likely factor behind her right knee disorder, to be highly probative on the complex medical questions of causation and aggravation. As mentioned above, the Veteran as a layperson does not have the knowledge and expertise to provide an opinion as to the complex question of etiology or aggravation of her right knee diagnoses, and, unfortunately, there is no other competent medical evidence of record to contradict the conclusions rendered by the VA examiners that the right foot disorder did not cause or aggravate her right knee disorder. With two uncontroverted negative medical opinions, the Board finds that the weight of the evidence to date preponderates against the claim for service connection for the right knee on a secondary basis. As such, the appeal is denied. (CONTINUED ON THE NEXT PAGE) ORDER Service connection for a right knee disorder is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs