Citation Nr: 18149501 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-39 991 DATE: November 9, 2018 ORDER Entitlement to service connection for a left knee condition is denied. FINDING OF FACT The Veteran’s left knee condition is not etiologically related to his active service, a period of active duty or inactive duty for training. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee condition, have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to August 1976. He also had various periods of service with the Army National Guard and the Army Reserve from August 1976 to January 1994. The Veteran testified before the undersigned Veterans Law Judge at a video conference Board hearing in September 2017. A transcript is of record. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Active service includes active duty, any period of active duty training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 1011 (21), (24); 38 C.F.R. § 3.6 (a). Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from active service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). However, presumptive periods do not generally apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 1 Vet. App. 474, 477-78 (1991). Here consideration of 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307 and 3.309 is not appropriate as the Veteran alleges he injured his knee in April 1987, which was during a verified period of INACDUTRA. 1. Entitlement to service connection for a left knee condition. The Veteran seeks service connection for a left knee condition. He testified to initially injuring his left knee in April 1987 after falling from a truck during INACDUTRA. He did not seek treatment. He testified that, within days thereafter, he further injured his knee while working in his civilian profession as a car mechanic. Essentially, he reported hitting his knee on a car and creating an abrasion that became infected and swelled to the point of requiring repeat antibiotic treatment. He asserts that this treatment and/or his in-service fall led to the deterioration of his left knee requiring a knee replacement. Per VAMC treatment medical records, as of August 2015, the Veteran has diagnosed osteoarthritis of the left knee status post total knee replacement. The first element of Shedden is met. Personnel records for the period in which the Veteran seeks service connection, between August 1986 and August 1987, confirm he had only INACDUTRA service. As a result, service connection must be addressed based on whether a disability due to an injury was incurred in or aggravated in the line of duty. The Board does not find that service connection is warranted. Here, hospitalization and service records contemporaneous to April 1987 reflect that the Veteran suffered a left knee disability injury outside of INACDUTRA. April 1987 DCH hospital records reflect five days of hospitalization for cellulitis of the left leg. Physicians recorded the Veteran’s self-report of injuring himself when a car “quarter panel” struck his left knee during a repair. Other than this injury, physicians noted the Veteran was in “general good health” with no history of bone or joint problems. A July 1988 Report of Medical History indicated the left knee condition was resolved, with “no problems” after antibiotic treatment in April 1987 at DCH. Adjoining documents, reflect the Veteran reported being in good health, he had full range of motion, and clinically normal lower extremities. The Board acknowledges that the Veteran is competent to report suffering an injury to his left knee after a fall in-service. However, the contemporaneous evidence of record does not support the occurrence of such an incident. The Veteran was hospitalized for five days due to severe cellulitis of the left knee but provided no history of knee injury or knee symptomatology prior to his non-service workplace injury. He even denied a prior history of problems. This contemporaneous evidence has greater probative value than history as reported by the claimant. Curry v. Brown, 7 Vet. App. 59, 68 (1994). Indeed, as addressed by the Court in 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. See also Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist) In sum, the lack of contemporaneous report of an in-service knee injury, despite extended hospitalization, weighs against the credibility of the Veteran’s statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Moreover, the remainder of treatment medical records are negative for reports of an in-service fall, other knee injury, or aggravation. Service-related Reports of Medical Examination consistently reflect clinically normal lower extremities. Acknowledgment is given to a September 1992 Report of Medical Examination noting gouty arthritis. A claim for service connection for gout was adjudicated and denied in October 2014. The Veteran did not appeal this decision and the Board does not consider it a part of the current claim. Finally, even if the Board were to find the Veteran’s report of injury to be credible, which it does not, the record lacks a nexus between that injury and his current disability. As stated presumptive service connection is not applicable, nevertheless there is no evidence of diagnosed ostearthritis until decades after service separation. Consideration is given to the Veteran’s assertions of a correlation between his current left knee disability and service. However, the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection must be denied. 38. U.S.C. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49(1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel