Citation Nr: 18143239 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 09-41 974A DATE: October 18, 2018 ORDER Service connection for degenerative joint disease of the left knee, on a direct basis, is denied. FINDING OF FACT The Veteran’s degenerative joint disease of the left knee manifested 16 years post-separation and is unrelated to a hyperextension injury he suffered in in service. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative joint disease of the left knee have not been met. 38 U.S.C. §§ 1131, 1132, 1133; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1975 to December 1975 and from April 1976 to April 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision of the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO). In May 2012, the Veteran testified at a videoconference Board hearing conducted before the undersigned Acting Veterans Law Judge (AVLJ). A transcript of the hearing has been associated with the claims file. In May 2014, the Board reopened and remanded the Veteran’s claim for additional development. A Board decision in January 2016 denied the Veteran’s claim for service connection for degenerative joint disease of the left knee, to include as secondary to a service connected right knee injury. The Veteran thereafter appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in June 2016, the Court granted a Joint Motion for Remand (JMR) and remanded the case for readjudication in accordance with the JMR. In August 2016, the Board remanded the claim for development consistent with the terms of the JMR. In a July 2017 decision, the Board denied service connection for degenerative joint disease of the left knee as secondary to his right knee disability. Additionally, the Board also denied service connection on a direct basis. He again appealed this decision to the Court. Subsequently, in a Joint Motion for Partial Remand (JMPR), he expressly waived his appeal of the Board’s decision denying service connection for degenerative joint disease of the left knee as secondary to his right knee disability. However, he maintained the Board erred when it denied service connection for degenerative arthritis of the left knee on a direct basis. By a June 2018 Order, the Court, pursuant to the JMPR, vacated the Board’s June 2017 decision in relevant part and remanded the matter for further action consistent with the JMPR. The Veteran contends that his diagnosis of degenerative joint disease of the left knee stems from his active duty service. See generally May 2012 Board Hearing Transcript. More specifically, he asserts it is related to a left knee injury he sustained while driving a tank in service. May 2012 Board Hearing Transcript at 4. The injury occurred when he applied pressure to the brakes of the tank in an attempt to avoid hitting another service member with the tank. The brakes required two feet to operate. At that time, he recalled feeling pain in both knees. Since that time, he has experienced pain in both knees. Id. at 5. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. In that regard, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be granted on a presumptive basis for certain chronic diseases, such as arthritis, pursuant to 38 C.F.R. §§ 3.307(a) and 3.309(a). See Greyzck v. West, 12 Vet. App. 288, 291 (1999) (noting the terms “degenerative arthritis,” “osteoarthritis,” and “degenerative joint disease” are synonymous). A chronic disease may be presumptively service connected if it is shown to have manifested to a compensable degree within one year of separation from service, or if the evidence establishes chronicity and continuity of symptomatology post-separation. 38 C.F.R. §§ 3.303(b), 3.307(a)(3); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In assessing the evidence, the Board recognizes the Veteran is competent to provide evidence regarding the lay observable symptoms of his degenerative joint disease of the left knee. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007), abrogated on other grounds by Walker, supra. However, he is not competent to render a medical diagnosis of degenerative joint disease or an opinion on such a complex medical question as the etiology thereof. See Barr, supra; Jones v. West, 12 Vet. App. 460, 465 (1999). In that regard, the Board relies on the medical evidence of record. Here, there is no doubt the Veteran has been diagnosed with degenerative joint disease of the left knee. See August 1995 VA Diagnostic Radiology Report; March 2003 VA Treatment Note; November 2003 VA Orthopedic Clinic Note. As such, the current disability element has been satisfied. In terms of an in-service incurrence, a review of the Veteran’s service treatment records (STRs) is negative for any for any complaints or diagnoses of a left knee condition in service. Despite his contention of injuring both knees in service, his STRs reveal only complaints of a right knee injury even though he sought medical attention on multiple occasions. For instance, the first report of a knee injury among his STRs is a July 1977 Chronological Record of Medical Care, which documented his complaint of only right knee pain following an injury two weeks prior. Subsequently, multiple September 1978 Chronological Records of Medical Care recorded his complaint of injuring only his right knee while riding in a tank and applying the brakes. The treatment providers at that time suspected the right knee injury was due to hyperextension. Notably, at the time of the Veteran’s separation examination, while he generally checked having or having had swollen or painful joints and arthritis, rheumatism or bursitis in service, he expressly specified suffering from rheumatoid arthritis of the right knee, a right thumb and left wrist condition. January 1979 Report of Medical History. There is no reference to a left knee condition. In fact, upon examination at the time of separation, the examiner found only evidence of rheumatoid arthritis of the right knee and left wrist. January 1979 Report of Medical Examination. No other abnormalities of the lower extremities were found. The first reference to a left knee condition comes in September 1979 during a VA examination; five months post-separation. September 1979 VA Examination Report. At that time, the Veteran relayed experiencing pain in the back of his left knee when he stood for a long time or applied pressure to it. However, he did not indicate when the pain began or describe any event in service leading to the pain. Unfortunately, the VA examiner did not conduct an examination of the left knee. Thus, no diagnosis was indicated. Considering the above and according the Veteran the benefit of the doubt, the Board finds there is sufficient evidence of an in-service occurrence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Shedden, supra. Thus, the crux of this claim is whether there is a nexus between his left knee injury in service and his current diagnosis of degenerative joint disease of the left knee. See Shedden, supra. Following the September 1979 VA examination, in July 1980, the Veteran complained of joint pain, which included pain in his knees bilaterally, left wrist, proximal interphalangeal joints and metacarpophalangeal joints. Upon examination, the VA treatment provider simply noted an assessment of joint pain, the etiology of which was unknown. No imaging study was obtained at that time. The next reference of record to a left knee condition comes in March 1981. March 1981 VA Progress Note. At that time, although the VA treatment provider documented the Veteran’s complaint of mild pain in both knees, no diagnosis was indicated. Subsequently, a June 1981 VA Consultation Sheet documented that although the Veteran reported an episode of both knees locking while driving a tank, he expressly relayed a history of right knee pain only over the past three to four years. Of significance, the VA treatment provider noted a work-up was completed previously in July and August the year before, and it was negative for arthritis. Instead, the VA treatment provider noted an x-ray examination showed evidence of Osgood Schlatter’s Disease bilaterally and indicated an impression of bilateral tibial apopstatsis. A September 1981 VA Progress Note recorded the Veteran’s complaint of bilateral knee pain. Following examination, the VA treatment provider indicated there was evidence of tenderness over both tibial tubercles. This VA treatment provider also noted an x-ray examination showed old Osgood Schlatter’s Disease. Once more in March 1982, the Veteran complained of suffering from pain in both knees, which began four years prior. March 1982 VA Progress Note. At that time, the VA treatment provider again noted he was thought to have Osgood Schlatter’s Disease based on prior x-ray and clinical examinations. While a June 1982 VA Progress Note documented the Veteran’s continued complaint of bilateral knee pain, this time, the VA treatment provider indicated an x-ray examination was negative. In the end, the VA treatment provider did not provide a specific diagnosis associated with his complaint. The next complaint of a knee problem comes in an April 1983 VA Progress Note. At that time, the Veteran reported a history of knee problems over the past several years. Of note, he relayed a history of several knee injuries as well. The VA treatment provider’s impression was probably patello-femoral joint pain. However, the VA treatment provider indicated no x-ray examination was available for review. The first reference to any degenerative changes of the left knee comes in August 1995; more than 16 years post-separation. An August 1995 VA Diagnostic Radiology Report documented a slight narrowing involving the medial compartment of the tibiofemoral joints bilaterally. The first diagnosis of degenerative joint disease of record comes in March 2003. A March 2003 VA Treatment Note included an assessment of osteoarthritis of the knees bilaterally. A November 2003 VA Orthopedic Clinic Note confirmed the diagnosis finding that an x-ray examination showed diminished joint spaces bilaterally in the medial compartments of the knees bilaterally. In April 2012, a Buddy Statement from B.G.G. was received. B.G.G. relayed that she met the Veteran while they were stated at Fort Knox together. She was a physical therapy assistant at the time. She recalled that he came into the clinic for follow up of injuries to both his left and right knees. She provided treatment for him at that time and since then she has remained friends with him. She noted that he continued to complaint of stiffness, pain and giving way of his knees. Unfortunately, B.G.G.’s Buddy Statement did not identify a particular diagnosis associated with either knee. B.G.G. submitted two prior statements in September 2008 and January 2009. These Buddy Statements were signed under the initials B.L. However, in the January 2009 Buddy Statement, she indicated she her initials were B.G. in service. In these Buddy Statements, B.G.G. stated she and the Veteran have known each other for the past 30 years. B.G.G. indicated she worked in the physical therapy department while they were stationed at Fort Knox together. Although B.G.G recalled he frequently complaint of knee pain through the years that they have known each other, B.G.G. indicated he received treatment only for a wrist condition in service. Further, there is a discrepancy between these Buddy Statements regarding when she and the Veteran first met each other. In the September 2008 Buddy Statement, B.G.G. indicated they met in 1980, which would have been following the Veteran’s separation from service. Whereas, in the January 2009 Buddy Statement, B.G.G. indicated they met in 1978, prior to his separation from service. Considering the glaring inconsistencies between B.G.G.’s Buddy Statements above, the Board declines to accord them any probative weight. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996). With respect to this claim, the Veteran has been examined by the VA on multiple occasions; first in February 2009, then in September 2011 and June 2014. February 2009 VA Examination Report; September 2011 Knee and Lower Leg Conditions VA Examination Report; June 2014 Knee and Lower Leg Conditions VA Examination Report. However, the Board has previously found each of these VA examinations inadequate to adjudicate this claim. May 2014 Board Decision; August 2016 Board Decision. In accordance with the Board’s August 2016 remand directives, an addendum VA medical opinion was obtained in October 2016. August 2016 Board Decision; see also Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). At that time, the VA examiner observed that while the Veteran was seen multiple times in service by various treatment providers, which included general, internal medicine and orthopedic physicians, no medical evidence was gathered pertaining to the left knee whatsoever. October 2016 VA Medical Opinion. The VA examiner explained that medical evidence is an important component of making a medical diagnosis. Although he has provided retrospective lay statements regarding left knee symptoms in service, the totality of the evidence is insufficient to make a diagnosis with a reasonable degree of medical certainty. Nevertheless, the VA examiner proceeded to note the Veteran’s lay statements described a hyperextension injury of both knees in service. Such an injury would have caused posterior knee symptoms, such as those described in his STRs pertaining to his right knee. This type of injury would not cause degenerative joint disease in the medical and anterior compartments of the left knee. Further, with respect to the Veteran’s Osgood Schlatter’s Disease, the VA examiner noted the natural history of the disease is such that it does not develop after adolescence. Id.; see also MEDLINEPLUS, https://medlineplus.gov/ency/ article/001258.htm (last visited October 14, 2018) (defining “Osgood-Schlatter disease” as a painful swelling of the bump of anterior tibial tubercle thought to be caused by small injuries to the knee area from overuse before the knee is finished growing; common in adolescents who play sports and more so in boys than girls). Thus, it was a condition which pre-existed his enlistment. Moreover, the hypertension injury described by him was not consistent with pain in the tibial tubercles which would occur with Osgood Schlatter’s Disease. Considering the above, the Board finds the preponderance of the evidence does not support service connection for degenerative joint disease of the left knee either on a direct basis or presumptive as a chronic disease. Cf. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307(a), 3.309(a); cf. also Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009). The first suggestion of degenerative joint disease of the left knee of record comes in August 1995, more than 16 years post-separation. While he complained of left knee pain prior to August 1995, each time he was examined either no diagnosis was indicated or his complaints were attributed to Osgood Schlatter’s disease which, as above was not incurred in service as Osgood Schlatter’s disease does not develop after adolescence. In fact, the June 1981 VA Consultation Sheet expressly excluded the diagnosis of arthritis. Although VA treatment providers in September 1981, March 1982 and June 1982 indicated x-ray examinations were reviewed, none of these VA treatment providers found they contained evidence of degenerative joint disease. In April 1983, when the VA treatment provider indicated an impression of probable patello-femoral joint pain, the VA treatment provider specifically noted no x-ray examination was available for review. Even if the Board was to accept the April 2012 Buddy Statement from B.G. noting the Veteran received physical therapy in service for a left knee condition, B.G. did not include the particular diagnosis for which he received treatment. Further, although B.G. indicated he has continued to complain of a left knee problem since service, B.G. did not address the other diagnoses of record associated with his complaints of left knee pain. Therefore, while B.G. may be competent to provide medical evidence, B.G.’s April 2012 Buddy Statement would still hold no probative value because it provides no rationale linking his current diagnosis of degenerative joint disease of the left knee to the treatment he received in service nor addresses the other left knee diagnoses of record. Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007), citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Necessarily, the only probative nexus opinion of record addressing the issue of direct service connection is the October 2016 VA examiner’s opinion, which found the hyperextension injury described by the Veteran during his active service would not cause degenerative joint disease of the left knee. Accordingly, service connection is not warranted for left knee degenerative joint disease on a direct basis. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. APRIL MADDOX Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Suh, Associate Counsel