Citation Nr: 18151475 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 18-34 701 DATE: November 19, 2018 ORDER Entitlement to service connection for a bilateral knee disability is denied. REMANDED Entitlement to an initial rating higher than 10 percent for prostate cancer is remanded. Entitlement to an initial rating higher than 20 percent for diabetes mellitus is remanded. FINDING OF FACT The Veteran’s currently diagnosed bilateral knee disability was not manifest during service or for many years thereafter, and the competent and credible evidence fails to establish an etiological relationship between this disability and his active service. CONCLUSION OF LAW A bilateral knee disability was not incurred in or aggravated by service, and may not be presumed related to service. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to March 1970. These matters are on appeal from an October 2014 rating decision. Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, certain diseases, such as arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent 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); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Finally, 38 U.S.C. § 1154 (a) requires that VA give ‘due consideration’ to ‘all pertinent medical and lay evidence’ in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, ‘[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.’ Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).] The Veteran contends that he has a bilateral knee disability that is related to his service. The STRs are void of any findings, complaints, symptoms, or diagnosis of any bilateral knee disability. Post service, VA treatment records show the earliest complaint of left knee pain and degenerative joint disease in July 2013. The Board finds that the claim must be denied. In this case, there is no competent medical evidence that supports the conclusion that the Veteran has a bilateral knee disability that is related to his service. To the extent that the Veteran contends that he has had a history of continued symptomatology since active service, this has been considered, but is not found to be accurate. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant’s uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Notably, the post-service medical records do not indicate any complaint of knee pain until December 2003 and degenerative joint disease of the knees was not diagnosed until July 2013. The mere absence of medical records does not contradict a Veteran’s statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Board finds that the Veteran did not experience any symptoms of any bilateral knee disability for at least 43 years after service. This period without problems (while, importantly, other problems are indicated) weighs against the claim. Continuity of symptomatology has not been established, either through the competent evidence of record or through the Veteran’s statements. Finally, there is no competent medical evidence that supports the conclusion that the Veteran has a bilateral knee disability that is related to his service. The Board has taken the contention that the Veteran has a bilateral knee disability that was caused by his service, seriously. Although the Veteran might believe that he has a bilateral knee disability is related to his service, the Board has closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that may serve as a medical nexus between the Veteran’s service and his bilateral knee disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of a bilateral knee disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the above, the Board finds that the weight of the probative evidence is against a finding that the Veteran has currently diagnosed bilateral knee disability is related to the Veteran’s active service. Accordingly, service connection for a bilateral knee disability must be denied. REASONS FOR REMAND Prostate cancer and diabetes mellitus Regarding the Veteran’s claims for increased ratings for prostate cancer and diabetes mellitus, the Veteran submitted Diabetes Mellitus and Prostate Cancer Disability Benefits Questionnaires (VA Form 21-0960E-1), which his private physicians completed in March 2014. However, in his June 2018 substantive appeal, he stated that his service-connected disabilities have worsened since his last examinations. Therefore, the Veteran’s rating claims should be remanded for VA examinations. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). VAOPGCPREC 11-95 (1995). While on remand, additional VA treatment records should also be associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain all outstanding VA medical records related to the Veteran’s diabetes mellitus and prostate cancer, including those from the New York VAMC, dated since August 2018. All records and/or responses received should be associated with the claims file (the Veteran himself can also submit all records he believes to be pertinent-this will also expedite the case). 2. Then, schedule the Veteran for a VA examination, to ascertain and evaluate the current level of severity of his prostate cancer (and any residuals) and diabetes mellitus. All indicated studies and tests should be performed. The claims folder should be made available to the examiner for review of pertinent documents. The examination reports should reflect that such a review was conducted. If possible, but not required, an assessment of the Veteran’s capability at employment would be greatly appreciated by the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Adams, Counsel