Citation Nr: 18147999 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 17-13 689 DATE: November 6, 2018 ORDER Entitlement to service connection for a left knee replacement is denied. Entitlement to service connection for a right knee replacement is denied. Entitlement to service connection for a respiratory disability, to include emphysema and chronic obstructive pulmonary disease (COPD), is denied. FINDINGS OF FACT 1. The most probative evidence of record establishes that the Veteran’s current bilateral knee disability, which resulted in bilateral total knee replacements, is not etiologically or presumptively related to her active duty service. 2. The most probative evidence of record establishes that the Veteran’s current respiratory disabilities are not etiologically related to her active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee replacement have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right knee replacement have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a respiratory disability, to include emphysema and COPD, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to April 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the March 2017 substantive appeal, the Veteran did not request a hearing before the Board. The undersigned Veterans Law Judge has been assigned to adjudicate this appeal pursuant to 38 C.F.R. § 19.3(a). The Veteran has not raised any issues with VA’s duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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.”); See also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. These matters were previously before the Board in June 2018, at which time the claims were remanded for further evidentiary development. Having reviewed the appellate record, the Board finds that the RO substantially complied with the June 2018 remand directives, and appellate consideration may proceed. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Generally, to establish direct service connection, a veteran must show: (1) a current disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The absence of any one element will result in denial of direct service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). 1. Entitlement to service connection for bilateral knee replacements is denied. The Veteran seeks entitlement to service connection for bilateral knee replacements. The appellate record affirmatively establishes that the Veteran has experienced end-stage osteoarthritis in the bilateral knees resulting in total knee arthroscopies within the appellate period. See e.g., August 2018 VA examination results. She has proven a current bilateral knee disability within the appellate period for VA compensation purposes. The Veteran alleges that her current bilateral knee disability is the result of motor vehicle/moped accidents; knee strain due to heavy lifting of tents and mail bags; and general issues regarding bilateral lower extremity phlebitis, all of which allegedly occurred while on active duty. See September 2015 statement; March 2016 notice of disagreement; March 2017 substantive appeal. As a threshold matter, the Board notes that the Veteran is competent to report her recollections; however, she is not competent to pinpoint any of these alleged incidents as the etiology or onset of her medically complex disability, as she is without the requisite medical training and expertise to issue etiological opinions on medical matters. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With this threshold matter determined, the Board turns to the credibility of the Veteran’s assertions. In a written statement received in September 2015, the Veteran alleges that she injured her knees when she fell out of a jeep during her first tour of duty in Germany. She also indicates that a few months later, she again fell off a moped severely injuring her knees. Service treatment records dated in December 1975 confirm that the Veteran was treated for injuries related to falling out of a jeep. However, this medical record indicates that the Veteran only experienced injury to her right arm and right side. A radiograph was taken of the right elbow and was negative for fractures. The Veteran was assessed with a contusion on the right elbow and side. This treatment record is devoid of reference to any injury to the Veteran’s knees as a result of this accident. Likewise, the Veteran’s service treatment records confirm that she experienced a moped/bike accident a few months later in May 1976. Again, these records reflect that the Veteran was treated for right elbow and forearm injuries. There is no medical information in this treatment record to suggest that the Veteran experienced trauma or injury to her knees as a result of this accident. Follow-up records a few days later indicate that the trauma to the Veteran’s right elbow and forearm was healing nicely. There is no reference to a bilateral knee injury in this service treatment record. In order to find that silence in the record contradicts lay testimony, the Board “must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.” See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (“[T]he Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.”); Horn v. Shinseki, 25 Vet. App. 231, 239 n. 7 (2012) (recognizing that the absence of evidence cannot be substantive negative evidence without “a proper foundation . . . to demonstrate that such silence has a tendency to prove or disprove a relevant fact”); AZ v. Shinseki, 731 F.3d 1303, 1311, 1315 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that “the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded”). While the Veteran’s service treatment records confirm she was in the two vehicle accidents she reported in the September 2015 lay statement—at the time of the accidents, she did not complain of or seek treatment for bilateral knee injuries. Had the Veteran’s accidents resulted in bilateral knee injuries, it is not unreasonable to conclude that these injuries would have been recorded in the December 1975 and May 1976 service treatment records. The Board considers the absence of such expected evidence probative, especially in the light of the fact that she was being treated for other injuries incurred in the accidents. The lack of medical evidence of bilateral knee injuries from these December 1975 and May 1976 service treatment records, particularly when such evidence would be typically recorded by medical personnel if it existed, is persuasive evidence that she did not experience bilateral knee injuries as a result of these in-service vehicle accidents, which outweighs her present recollection to the contrary. It is clear from the record that the Veteran did not begin attributing her current bilateral knee disability to the December 1975 and May 1976 in-service vehicle accidents until she began filing compensation claims with VA. The Boards finds the lack of bilateral knee complaints in the December 1975 and May 1976 service treatment records to be of greater probative value than more recent statements, which may be influenced by the Veteran’s pecuniary interest in obtaining VA benefits. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (pecuniary interest may affect the credibility of testimony); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). For these reasons, the Veteran’s lay statements, regarding knee injuries caused by these in-service accidents, are not credible. In the September 2015 correspondence, the Veteran generally asserted that she may have injured her bilateral knees while lifting heavy tents or mail bags during her active duty service. She also suggested her in-service phlebitis, for which she was granted a medical profile restricting physical activity during the last two years of service, may have resulted in her current bilateral knee disabilities. As noted above, the Veteran’s lay statements regarding the etiology of her current bilateral knee disability are not competent and are afforded no probative value in this determination. Jandreau, 492 F.3d at 1377. While the Veteran’s service treatment records confirm that the Veteran experienced bilateral phlebitis and varicosities in the lower extremities while in service, there is no medical evidence in the service treatment records which demonstrates she experienced any complaints or pain in the bilateral knee joints. Review of the service treatment records shows that she generally reported pain in the shins and the gastrocnemius muscles. Similarly, the Veteran’s service treatment records are negative for reports of, reference to, or treatment for bilateral knee injuries related to lifting heavy tents or mail bags. In fact, at the Veteran’s January 1980 exit examination, she affirmed that she had not experienced arthritis, lameness, or bone/joint deformities. Likewise, while the Veteran’s exit examination noted evidence of bilateral phlebitis, there were no references to lower extremity orthopedic abnormalities. Despite the Veteran’s report in the March 2017 substantive appeal that she never received professional screening for her bilateral phlebitis, January 1980 service treatment records prove she was seen by a surgeon who (1) diagnosed her with mild-to-moderate superficial varicosities; (2) did not mention or suggest this disability was in any way affected her knee joints; and (3) who concluded that treatment was not implicated. The absence of positive bilateral knee findings in the Veteran’s service treatment records, including the January 1980 exit physical, coupled with the Veteran’s January 1980 affirmations that she did not experience common bilateral knee symptomatology, undermines the credibility of the Veteran’s lay statements as presented in her September 2015 correspondence. The Board places great probative value on the pertinently negative contemporaneous service department records which show no treatment for bilateral knee injuries in service and contain affirmative statements by the Veteran denying such complaints at service separation. See generally Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). In light of the above analysis, the Board must conclude that the Veteran did not experience an in-service incurrence of a bilateral knee injury or disease, and on this point, her direct service connection claim fails. Nonetheless, the Board observes that the only competent medical nexus evidence in this matter also weighs against the Veteran’s direct service connection claim. In August 2018, a VA examiner conducted an in-person physical examination of the Veteran’s knees, noted her history of bilateral total knee arthroscopies, reviewed the Veteran’s electronic claims file, and acknowledged the Veteran’s lay contentions; but declined to etiologically link the Veteran’s current bilateral knee disabilities to her active duty service. The examiner explained that the appellate record contained no direct evidence of in-service knee injuries and explained that the Veteran’s in-service phlebitis could not be attributed to the Veteran’s orthopedic knee disability given the lack of continuous symptoms. The Board finds that the August 2018 VA examiner’s nexus opinion was based on an accurate factual premise, and was supported by a thorough explanatory rationale. Accordingly, it is entitled to significant probative value in this adjudication. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Having failed to establish the in-service incurrence and medical nexus elements, the Veteran’s direct service connection claim must be denied. While degenerative arthritis is one of the enumerated chronic diseases giving rise to presumptive service connection consideration under 38 C.F.R. §§ 3.303(b) or 3.309(a), the Veteran’s claim is also denied on this basis. Here, the Veteran’s bilateral knee ostearthritis was not symptomatic or diagnosed in service, and did not manifest to a compensable degree within one year from separation from service. Further, the record does not contain evidence indicative of continuity of symptomatology for a bilateral knee disability since service. The record adequately reflects that the Veteran was diagnosed with osteoarthritic bilateral knees decades after her separation from active duty. Consequently, the Veteran is ineligible for presumptive service connection under 38 C.F.R. §§ 3.303(b) or 3.309(a). 2. Entitlement to service connection for a respiratory disability, to include emphysema and COPD, is denied. The Veteran seeks entitlement to service connection for a respiratory disability, diagnosed as emphysema and COPD. The appellate record affirmatively establishes that the Veteran has been clinically diagnosed with emphysema and COPD within the appellate period. See August 2018 VA examination diagnosing Veteran with emphysema and COPD. Consequently, the evidence demonstrates that the Veteran has experienced a current respiratory disability for VA compensation purposes within the appellate period. Through lay statements submitted at various point in the appellate period, the Veteran has postulated that her current respiratory disabilities originated in service where she was seen for breathing problems, including bronchitis; and where she smoked tobacco and was subjected to second-hand smoke from others. As noted supra, the Veteran has not been shown to be competent to render opinions regarding medical etiology. See Jandreau, 492 F.3d at 1377. Regarding the Veteran’s lay reports of in-service onset of emphysema or COPD, the medical evidence undermines the credibility of these statements. Admittedly, the Veteran’s service treatment records establish that she experienced many cold-and-flu-like episodes during active duty service. The service treatment records also prove that the Veteran was diagnosed with bronchitis in September 1977 and possible pneumonia in April 1978. However, further review of the service treatment records demonstrates these incidences were acute, transitory, and fully resolved without residuals following routine treatment. In fact, chest x-rays from April 1978 (taken due to the suspected pneumonia) and January 1980 showed no active disease and normal lungs, respectively. At the January 1980 exit examination, the Veteran’s lungs and chest were found to be clinically normal, and the Veteran affirmatively denied a history of asthma, shortness of breath, pain or pressure in the chest, or chronic cough. Again, the contemporaneous service records are negative for the presence of emphysema or COPD, and cast serious doubts on the credibility of the Veteran’s lay assertions. See Curry, 7 Vet. App. at 68. For this reason, the medical evidence of record preponderates against the Veteran’s lay assertions presented in the March 2016 notice of disagreement and March 2017 substantive appeal, which the Board deems lacking in credibility. With respect to the Veteran’s assertion that her current respiratory disability may be the result of in-service tobacco abuse, the Board notes that 38 C.F.R. § 3.300(a) precludes the award of service connection, as a matter of law, for diseases or injuries attributable to a veteran’s in-service use of tobacco products. Indeed, the appellate record proves that the Veteran smoked cigarettes during her active duty service and continued smoking nearly half a pack of cigarettes per day, for decades after separation from service. Regarding the Veteran’s report of second-hand smoke exposure in service, as stated above, there is no evidence in the service treatment records that the Veteran experienced a chronic respiratory disability in service as demonstrated by negative chest x-ray results and the Veteran’s contemporaneous reports at the January 1980 separation examination denying respiratory symptomatology. Again, these contemporaneous service treatment records and the Veteran’s affirmative denials of breathing problems at the June 1980 exit examination are more probative then her recollections made in excess of 30 years after her separation from active duty service. In light of the above analysis, the Board finds that the Veteran’s lay reports of chronic respiratory symptomatology in service are not credible, and are outweighed by the contemporaneous service treatment records disproving the Veteran’s recollections. Consequently, the Veteran has failed to establish in-service incurrence of a respiratory disability, and on this point, her direct service connection claim fails. Nonetheless, the Board observes that the only competent medical nexus element also weighs against the Veteran’s direct service connection claim. In August 2018, a VA examiner conducted an in-person physical examination of the Veteran, reviewed the Veteran’s electronic claims file, and concluded the Veteran’s current respiratory disabilities were not etiologically linked to the Veteran’s active duty service. The examiner remarked that the Veteran’s service treatment records contained no evidence of respiratory injury and were negative for chronic complaints or treatment for COPD or emphysema. The examiner found no evidence from the Veteran’s period of active duty that could have resulted in the Veteran’s current respiratory complaints. As the only competent medical nexus opinion of record relevant to this claim, the Board finds this opinion to be persuasive as it is fully articulated with a sound rationale, and is based on a correct interpretation of the Veteran’s medical history. Having failed to establish the in-service incurrence and medical nexus elements, the Veteran’s claim of entitlement to direct service connection for a respiratory disability, to include emphysema and COPD, is denied. Unlike degenerative arthritis, the Veteran’s respiratory disability claim is not subject to presumptive service connection under any applicable regulatory authority. The Veteran’s appeal is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel