Citation Nr: 18152264 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-10 658 DATE: November 21, 2018 ORDER The appeal regarding whether withholding of compensation benefits to recoup special separation pay was proper is dismissed. Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. FINDINGS OF FACT 1. In May 2018, at his hearing before the Board of Veterans’ Appeals (Board) and prior to the promulgation of a decision in this appeal, the Veteran explicitly and unambiguously requested to withdraw his appeal regarding whether withholding of compensation benefits to recoup special separation pay was proper with a full understanding of the consequences of that action. 2. The competent evidence of record is against a finding of in-service onset of a left knee condition or manifestation of a chronic left knee disability during service; a competent link between service and the Veteran’s currently diagnosed left knee disability has not been demonstrated. 3. The competent evidence of record is against a finding of in-service onset of a right knee condition or manifestation of a chronic right knee disability during service; a competent link between service and the Veteran’s currently diagnosed right knee disability has not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal on the issue of whether withholding compensation benefits to recoup special separation pay was proper have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for service connection for a left knee disability have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a right knee disability have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1981 to July 1992. In May 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the electronic claims file. I. Withdrawal of Appeal Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). In May 2018, prior to the promulgation of a decision by the Board in this case, the Veteran requested to withdraw his appeal as to whether withholding compensation benefits to recoup special separation pay was proper before the undersigned at a Travel Board hearing. This request was reduced to writing in the hearing transcript on record and was explicit, unambiguous and done with a full understanding of the consequences. See pg. 2 of the transcript. There remains no allegation of error of fact or law for the Board to address. Accordingly, the Board does not have jurisdiction to review the appeal of that issue, and it is dismissed. II. Service Connection Generally, to establish service connection, a claimant must show: (1) a present 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). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In this case, the Veteran filed a claim for service connection for right and left knee conditions in March 2012. He indicated having undergone surgery on his bilateral knees and believed the problems with his knees were due to the abuse of road marching and running on pavement during his 10 years of service. Service treatment records (STRs) do not show treatment for or diagnosis of any knee condition. Complaints follow injuries to various parts of the body including the hands, fingers, ankles and back; however, no mention of knee pain or injury appears. In July 2013, the Veteran underwent a VA examination. The examiner diagnosed minimal to mild degenerative arthritis of the knees and retropatellar pain syndrome. The Veteran indicated that he experienced aches and pain in the military after long road marches and saw medics who administered nonsteroidal anti-inflammatory drugs (NSAIDs). He stated that around 6 to 7 years after separation from service he “started to have a lot of knee pains.” Around 2003, Dr. H. performed surgery on the right knee. This surgery was described as an arthroscopy to clean up scar tissue and trim the meniscus. The same surgery was performed on the left knee in approximately 2004. The Veteran stated the surgeries helped for about 5 to 6 years and then his knees began to hurt more and he reported currently experiencing constant pain. He related that he played softball and two games or more would cause his knees to swell. X-rays showed mild tricompartmental degenerative changes of both knees without fracture, malalignment, or other acute bony abnormity. No significant joint space narrowing, joint effusion or focal soft tissue swelling was noted. In an August 2013 rating decision, the Regional Office (RO) denied service connection for right and left knee conditions finding no evidence of injury in service or a link to service. In an October 2013 Correspondence, the Veteran indicated he was in the light infantry during service. He stated his squad did numerous road marches and runs and he twisted his right knee on an air assault mission jumping out of a helicopter and hitting a hole. He explained that as a “hardcore individual” he completed the mission without complaint and then saw the battalion medic who wrapped his knee and gave him Tylenol. He stated he continued to experience pain in that knee and went to sick call a couple more times for it, although no notes were kept. Regarding his left knee, the Veteran indicated he tripped during a land navigation course at a training center in Panama. He indicated the knee was swollen and he took Tylenol. He did not want to the be medically removed from the training and continued running and marching carrying a 100+ pound rucksack. Following additional development for records, the Veteran underwent another VA examination in December 2014. Bilateral knee joint osteoarthritis was diagnosed with the date of diagnosis listed as 2003. The Veteran complained of bilateral knee pain and related having both knees scoped for general degenerative “clean up” and meniscal debridement in 2003 on the right and 2005 on the left. He indicated having jumped, ran and drilled hard in the Army and that he attributed the overall wearing out of his knee joints to physical stressors in the military. He stated he injured his right knee in August 1984 when he felt a pop after jumping during air assault training. He stated this was treated with ice, compression and ibuprofen; however, no notes were taken. He indicated twisting his left knee during a night march and again saw a medic, although no notes were taken. He continued to train and drill in the military performing a wide variety of duties until discharge. The Veteran reported playing basketball since service, but that his knee pain had now worsened to the point that he could no longer run, play basketball, kneel or squat. The examiner was asked to provide an opinion as to whether the Veteran’s bilateral knee condition was due to road marches and running on pavement with full gear. The examiner agreed that the Veteran’s activities in the miliary were the type that might injure the knees or cause a cumulative trauma that would later result in arthritis. The examiner also noted the absence of complaints regarding the knees in the STRs and that the Veteran had continued to play basketball after service which would also be very likely to cause the type of symptoms he was currently experiencing. The examiner stated that without good information about “symptom onset, reasons for later treatment and variety of proximate stressors,” it was impossible to attribute the present symptoms to specific causes, except to say it is consistent with an accumulation of everyday trauma. The examiner concluded that the lack of symptoms recorded during the Veteran’s ten years in the military supported a finding that the activities at that time were not the direct cause of his current conditions. In his March 2015 Form 9, the Veteran indicated that he told the doctor about his knee problems when he had his final military physical and it was not entered into his medical records. In a July 2016 statement, the Veteran indicated he did not play basketball prior to entering service as stated by the December 2014 examiner. In May 2018, the Veteran testified at a hearing before the Board. He indicated he never injured his knees or had problems with his knees prior to service. He reported injuring his right knee around 1985 and that he sought treatment in the field. He stated there was no follow-up, although his knees bothered him the whole time he was in the service. He continued to do what he had to do and completed his missions without letting his knee pain bother him. He indicated being 6’8” and carrying a 65-pound rucksack while running and marching in combat boots. He stated he never talked about his knee pain because he was leading by example. The Veteran reported having surgery on his right knee in July 1994 and that the meniscus was torn halfway through with arthritis underneath. He stated he had the same surgery on his left knee a year later. The Veteran indicated Dr. H. did not still have the records as they had been destroyed. He reported playing basketball, but stated that only caused ankle injury and not injury to the knees. Upon careful review of the lay and medical evidence, the Board finds that, although the Veteran has current disabilities in his knees, the record does not support a finding of in-service incurrence of a left or right knee disability or manifestation of any knee condition that could be considered chronic during service. Examination reports dated in 1986, 1987, 1990 and 1992 make no mention of knee concerns and the Veteran did not indicate problems with his knees on the Report of Medical History accompanying his June 1992 separation examination. In addition, at the July 2013 VA examination, the Veteran indicated aches and pains while in the military, but stated that it was 6 or 7 years after separation from service that he began to experience significant pain in his knees. The Board recognizes that the December 2014 VA examiner’s opinion is arguably speculative and that a speculative medical opinion cannot serve as the basis of a denial of entitlement to service connection without an adequate reason for why such opinion cannot be provided. However, the Board is permitted to rely upon a medical examiner’s conclusion that an etiology opinion would be speculative if “the inability to render a requested opinion is adequately explained” and the examiner has “done all that reasonably should be done to become informed about a case.” See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). Here, the Board finds the explanation for why certainty is not possible to be adequate. The VA examiner reviewed the Veteran’s medical records and considered his lay contentions, to include his arguments as to why his knee conditions should be service connected and his history of treatment for the knees. The examiner explained that it was not possible to provide a nexus opinion with certainty because the evidence was unclear regarding onset of symptoms and there was evidence of continued activities that could cause trauma to the knees in the years following separation from service prior to the knee surgeries in the early 2000s. Overall, although it is believable that the Veteran had acute injuries to the knees and sought field treatment during service and it is not questioned that he ran and marched many miles with a heavy rucksack during his service, the evidence closest in time to service does not demonstrate that knee disabilities, to include arthritis, had onset during service or within the one year following service. Although the Veteran stated at his Board hearing that knee surgeries were performed within a few years after separation from service, the other lay and medical evidence of record consistently demonstrates that knee surgeries were, in fact, performed over 10 years after separation from service after a period of years when the Veteran was continuing to play sports, including softball and basketball. This evidence also suggests there was no significant knee pain after service for a period of 6 or 7 years. Without competent evidence showing an onset of arthritis or other chronic knee condition in service or within the year period following service or competent evidence linking the Veteran’s current knee disabilities to service, the Board must find that the criteria required to establish service connection are not met and service connection must be denied. The Board has considered the Veteran’s lay statements that he believes his knee conditions are related to physical stress placed on his knees over the course of 11 years in the military and appreciates his lengthy service. The Board notes that a veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). While the Veteran may be competent to report symptoms of a knee condition, he is not competent to provide a medical nexus opinion regarding etiology, as that is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran has not been shown to be other than a layperson without the appropriate medical training and expertise, he is not competent to render a probative (i.e., persuasive) opinion on a medical matter such as whether current knee conditions are related to activities in service or had onset in service. See Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) (“a layperson is generally not capable of opining on matters requiring medical knowledge”). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel