Citation Nr: 18150760 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-28 179 DATE: November 16, 2018 ORDER 1. Entitlement to service connection for a left knee disability is denied. 2. Entitlement to service connection for a lumbar spine disability, as secondary to a left knee disability, is denied. FINDINGS OF FACT 1. The most probative evidence establishes that a left knee disability did not have its onset in or was otherwise caused by, or related to active service. 2. The most probative evidence establishes that a lumbar spine disability is not caused or aggravated by a service-connected disease or injury. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. 2. A lumbar spine disability is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1965 to December 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal of the December 2014 Department of Veterans Affairs (VA) regional office (RO) rating decision. 1. Factual and Procedural Background The Veteran’s service treatment record (STR) indicates that: (1) in June 1965, he was treated for an infected abrasion of the right knee in San Antonio, Texas; and (2) in August 1968, in Germany, he was diagnosed with a strain of patella in his right knee upon reporting that, one day prior, he “jumped up” and hurt his knee. The STR contains no other entries regarding his knees, and he denied having any musculoskeletal problems during his separation from service examination. In May 2001, i.e., 31 years after the Veteran separated from service, a medical practitioner recorded the Veteran’s complaints about experiencing right knee pain. In June 2001, a medical practitioner: (1) diagnosed minimal degenerative changes of the right knee; (2) found that both of his knees demonstrated a slight lateral osteophytosis; and (3) recorded that his left knee had minimal lipping along the patella but, otherwise, was normal. Three years later, in April 2004, the Veteran: (1) reported to a medical practitioner that his left knee had suddenly become swollen and painful in February 2004; (2) was diagnosed with a twisting injury and a possible torn meniscus of the left knee; (3) had his left knee treated with a corticosteroid injection; and (4) reported that he had no significant medical history as to his left knee prior to 2004. Seven years later, in June 2011, the Veteran reported intermittent left knee pain to a VA medical practitioner. In August 2011, the Veteran was diagnosed with osteoarthritis of the left knee. In January 2012, the RO received the Veteran’s application for disability compensation based on “a” knee injury. The application stated that the Veteran was treated for a knee injury in Germany but did not clarify whether the injury was to his right or left knee. However, the Veteran’s Statement in Support of the Claim clarified that he based his claim on a right knee injury and asserted that it occurred when he played football while stationed in Germany. In April 2012, the Veteran reported moderate to substantial left knee pain, and was diagnosed with severe osteoarthritis of the left knee. In July 2012, his diagnosis was refined to severe posttraumatic osteoarthritis. In January 2013, the Veteran: (1) was diagnosed with severe valgus osteoarthritis of the left knee; (2) reported that he had experienced constant substantial left knee pain; (3) stated that he had been experiencing occasional left knee pain, stiffness, popping, grinding, instability, slipping sensation, locking, and catching over the prior 15 years, i.e., since 1998; (3) asserted that he had a football injury in 1967; and (4) was scheduled for a total arthroplasty of the left knee. In April 2013, having a left knee replacement performed in March 2013, he: (1) reported pain due to the left knee joint prosthesis; and (2) was diagnosed with osteoarthritis of the right knee. The RO directed the Veteran to have an examination of his right knee and informed him accordingly by a letter he received in June 2013. A June 2013 VA examiner determined that it was more likely that the Veteran’s right knee disability was age related, and less likely that this disability had its onset in or was otherwise caused by, or related to active service. In June 2013, the RO denied service connection for the Veteran’s right knee disability. In January 2014, the RO received a letter from the Veteran, which: (1) asserted that the RO’s May 2013 letter directed a VA examination of the Veteran’s left, rather than right knee; (2) alleged that the June 2013 VA examiner did not comply with that directive and erroneously examined his right knee; and (3) requested a VA examination of his left knee. In May 2014, the RO received another letter from the Veteran alleging that the June 2013 VA examiner erred in examining his right knee, and his lumbar spine was dislocated and had two deteriorating discs because of his left knee. The RO construed his May 2014 letter as a new claim seeking compensation for his left knee disability, and a lumbar spine disability associated with the left knee disability. In December 2014, the RO issued a rating decision denying service connection for the Veteran’s left knee and lumbar spine disabilities. Two weeks after the December 2014 rating decision, the RO received the Veteran’s letter: (1) asserting once again that the June 2013 VA examiner erroneously examined his right knee; and (2) alleging that he injured his left, not his right knee in service while stationed in Germany when he was subjected to a “chop block” maneuver during a football game. In January 2015, the Veteran executed his Notice of Disagreement. In June 2016, served with the Statement of Case, the Veteran filed his substantive appeal: (1) reiterating that he injured his left knee playing football while stationed in Germany; (2) asserting that the RO erred in directing examination of his right, rather than left knee, and the VA examiner had to comply with that erroneous directive; and (3) clarifying that the Veteran was not seeking compensation for his lumbar spine disability because he had no lumbar spine problems. However, in July 2017, the Veteran filed his Appellant’s Brief contending, through his representative, that: (1) his June 1965 treatment for abrasion and his August 1968 treatment for a patellar strain were both recorded in the STR as injuries to his right knee in error because both injuries were to his left knee; (2) his 1968 treatment in Germany was a result of a “chop block” football injury; (3) the Veteran’s original January 2012 application raised claims for his left knee disability and for his lumbar spine disability, as secondary service-connected to his left knee disability; and (4) he was still seeking compensation for both his left knee disability and his lumbar spine disability. 2. Analysis Service connection may be granted for a disability resulting from an injury or disease incurred in service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection can be established presumptively or directly. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); see also 38 C.F.R. §§ 3.303, 3.304. Direct service connection requires competent evidence of: (1) a current disability; (2) an in service event that caused an injury or triggered a disease; and (3) a nexus, i.e., a causal connection between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). In addition, a direct service connection may be granted on a secondary basis for a disability that is proximately due to or a result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a). There are three ways to establish a presumptive service connection. First, if certain chronic diseases, such as arthritis, become manifest to a compensable degree within one year after the date of the veteran’s separation from service, such diseases are presumed to have been incurred in service, even if there is no evidence of such diseases during service. See 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Second, a veteran may establish service connection by showing that a chronic disease listed in § 3.309 was clearly diagnosed in service or during the applicable period, and the veteran’s present disability is a current manifestation of the same chronic disease. 38 C.F.R. §§ 3.303(b), 3.309(a). Third, where the chronicity can legitimately be questioned, service connection can be established by evidence of continuity of symptomatology, i.e., by showing that the symptoms caused by a condition listed in § 3.309 recurred regularly, without an intercurrent cause, starting from service and up to the date of the claim. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.303(b). In making its ultimate determination, the Board gives a veteran the benefit of the doubt on any issue material to his claim when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (quoting 38 U.S.C. § 5107 (b)). The Board, however, must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). The Veteran’s current left knee disability is not in dispute. However, while arthritis is listed in § 3.309, the evidence of record does not document that the Veteran’s arthritis of the left knee became manifest to a compensable degree within one year after the date of his separation from service, or was clearly diagnosed in service or during the applicable period. Moreover, the Veteran had an intercurrent left knee injury in February 2004, stated that he had no significant medical left knee history prior to April 2004, and a medical practitioner assessed his left knee as normal in 2001. Further, the Veteran reported only occasional left knee pain since 1998, i.e., starting 30 years after his separation from service, and denied knee problems at his separation from service examination. Therefore, the preponderance of the evidence is against finding that a presumptive service connection was established to an equipoise standard, the benefit-of-the-doubt rule is not applicable, and a presumptive service connection for the left knee disability is denied. For the purposes of a direct service connection analysis, before the Board addresses the nexus element, it determines whether the in-service-event element has been established to an equipoise evidentiary standard. In this case, the Veteran maintains that his left knee was injured when he was subjected to a “chop block” maneuver while playing football in Germany. The 7:45 AM August 1968 STR entry, however, recorded the Veteran’s report that he injured his right knee when he “jumped up” the day prior to the date of his medical treatment; that entry contains no mentioning of a football game. Further, the Veteran maintains that: (1) the medic who treated him in Germany in August 1968 erroneously recorded that he injured his right knee, even though he injured and sought treatment for his left knee; and (2) the medic who treated him in San Antonio, Texas in June 1965 for an abrasion of the right knee also erroneously recorded that he injured his right knee, even though he injured and sought treatment for his left knee. The Veteran’s Appellant’s Brief states that his original September 2012 application sought compensation for both his left knee disability and his lumbar spine disability. However, his September 2012 application did not mention his lumbar spine disability, and his Statement in Support of the Claim, filed jointly with the September 2012 application, expressly stated that his claim was based on his right knee injury. Moreover, the Veteran’s appeal maintains that the June 2013 VA examiner informed him that the examiner wished to evaluate the Veteran’s left knee but was required to evaluate his right knee due to the RO’s directive to perform such an evaluation. However, in May and December 2014, the Veteran claimed that the RO directed the examiner to evaluate his left knee, but the VA examiner failed to comply with the RO’s directive and erroneously examined his right knee. Further, while the Veteran maintains he was expecting to have his left knee examined, the Veteran acknowledged being served with the RO’s letter in June 2013, and the letter informed him of his upcoming June 2013 examination of his right knee, and not his left knee. The Veteran’s allegations during the period on appeal are contrary to the record and have been self-contradictory. For example, the allegation that the wrong knee was examined on two, different occasions during service by different medical professionals is not credible. The medical findings made by these medical professionals were written at the time of these incidents, and the Board has no reason to question the accuracy of these medical records. It was the Veteran’s right knee that was complaining about at those times. At service discharge in December 1968, clinical evaluation of the lower extremities was normal. In the Report of Medical History that the Veteran completed at that time, he specifically denied a history of trick or locked knee. He reported yes to multiple other medical complaints, which means he read through the medical complaints and checked yes to those that he had experienced and no to those he had not experienced. On the back of the form, it asks if the Veteran had any illness or injury other than those already noted on the form, and he checked no. The examiner wrote, “Examinee denies all other pertinent medical or surgical history.” All of these facts point to a finding that the Veteran did not injure his left knee in service. Accordingly, the Veteran’s allegations of his left knee being injured in service instead of his right knee are not credible. Thus, the preponderance of the evidence is against finding that an in-service event was established by an equipoise evidentiary standard, and the benefit-of-the-doubt rule is not applicable. In addition, the nexus element is not established by an equipoise evidentiary standard, given that: (1) the evidence of record tends to show no link between the Veteran’s current disability and his active duty; and (2) his report of no significant left knee history prior to April 2004, his report of only occasional left knee pain starting 30 years after his separation from service, and his denial of knee problems at his separation from service examination verify the absence of such a link. Thus, a direct service connection for the Veteran’s left knee disability is denied. The Veteran’s Appellant’s Brief reiterates the claim for his lumbar spine disability, as secondary service-connected to his left knee disability. However, the Veteran’s appeal stated that he was not seeking compensation for his lumbar spine disability because he had no lumbar spine problems. Further: (1) while the Board acknowledges that the Veteran is service connected for tinnitus and bilateral hearing loss, these disabilities are not claimed as operating as a proximate cause underlying his lumbar spine disability; and (2) his claim for service connection for left knee disability, being denied by the Board in this decision, cannot be claimed as a proximate cause underlying his lumbar spine disability. Since no in-service injury or disease that could operating as a proximate cause has been established by an equipoise evidentiary standard, the benefit-of-the-doubt rule is not applicable to the Veteran’s claim to service connection for his lumbar spine disability, assuming such a claim was meant to be raised. Therefore, service connection for a lumbar spine disability is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anna Kapellan, Associate Counsel