Citation Nr: 18153686 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 07-36 670 DATE: November 28, 2018 ORDER Entitlement to service connection for a left knee disorder, to include as secondary to a service-connected right knee disability, is denied. FINDING OF FACT The Veteran has not been shown to have a left knee disorder that manifested in service or within one year thereafter or that is otherwise causally or etiologically related to his military service or a service-connected disability. CONCLUSION OF LAW A left knee disorder was not incurred in active service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1968 to October 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The appeal was subsequently transferred to the RO in Winston-Salem, North Carolina. In May 2010, the Veteran testified at a Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously remanded in August 2010, July 2014, and February 2016 for additional evidentiary development. That development has been completed, and the case has been returned to the Board for further review. In July 2017, the Board requested an advisory medical opinion from the Veterans Health Administration (VHA). The Veteran and his representative were sent a copy of the opinion and given 60 days to submit further evidence or argument. See 38 C.F.R. §§ 20.901, 20.903. The VHA opinion does not require a waiver of initial Agency of Original Jurisdiction (AOJ) review. Disabled American Veterans v. Secretary of Veterans Affairs, 419 F.3d 1317, 1319-20 (Fed. Cir. 2005); 38 C.F.R. §§ 20.901, 20.903 (2017). Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or 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.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As arthritis is considered to be a chronic disease for VA compensation purposes, 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), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection is not warranted for a left knee disorder. The Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of a left knee disorder. In April 1969, he complained of pain and cramping in the right knee, and in September 1970, he was diagnosed with an abrasion to the right knee following a motor vehicle accident. There were no complaints of left knee pain. Moreover, an October 1970 separation examination found his lower extremities to be normal, and he denied having a medical history of a trick or locked knee. In March 1991, the Veteran submitted an application for nonservice-connected pension, claiming he hurt his back and knees in an automobile accident and was now unable to walk or work. In connection with that claim, the Veteran was afforded a VA medical examination in May 1991 at which time his complaints included pain and swelling in the left knee. X-ray studies showed hypertrophic changes arising from the patella. On clinical evaluation, no objective abnormalities were found; there was no loss of motion, effusion, instability, or crepitus. VA medical records show complaints of episodic left knee pain. In August 1999, it was noted that the Veteran received partial relief of his left knee pain from a steroid injection. During a February 2001 VA post-traumatic stress disorder examination, the Veteran claimed that he had sustained a left knee injury while serving in Vietnam and had been treated by corpsmen. A private MRI dated in April 2001 showed a tear of the left medial meniscus and mild degenerative changes. In a January 2010 rating decision, the RO granted service connection for degenerative joint disease of the right knee and instability of the right knee, effective December 17, 2009. The Veteran now claims that he has a left knee disability that is secondary to a right knee disability which was incurred in service. The Veteran was afforded a VA examination in December 2014. The examiner found that his left knee disorder was less likely than not proximately due to or the result of his service-connected right knee disability. She explained that the medical literature fails to support arthritis in one joint causing arthritis in a contralateral joint. Rather, she stated that it is more likely that the Veteran’s morbidly obese body habitus has made a significant contribution to osteoarthritis in both knees. However, the December 2014 examiner did not address whether the Veteran’s service-connected right knee disability could have aggravated his left knee disorder. The Veteran was afforded another VA examination in April 2016. July 2014 and March 2016 MRIs confirmed a left knee meniscal tear and bilateral arthritis. The examiner found reduced range of motion in both knees, but no evidence of joint instability or reduction in muscle strength. The examiner stated that the Veteran’s left knee disorder was less likely than not proximately due to or the result of his service-connected right knee disability. He explained that obesity is likely a major contributor to the Veteran’s left knee degenerative joint disease and the further progression of his right knee degenerative joint disease. The examiner noted that the Veteran has had bilateral knee arthritis for many years. He stated that the Veteran’s gait is antalgic due to bilateral knee pain, but he could not determine to what degree, if any, compensating for the right knee would have contributed to his left knee degenerative joint disease. Notably, the April 2016 examiner still did not address the question of aggravation. The Board requested a VHA medical opinion, which was provided by an orthopedic surgeon. She found that the Veteran’s left knee arthritis is not directly related to his military service. In this regard, she noted that his service treatment records are negative for any complaints, treatment, or evaluation of a left knee problem, and there was no reported injury to the left knee during service. She opined that his left knee degenerative arthritis is more likely related to a post-service injury and morbid obesity. The VHA physician also determined that the Veteran’s left knee arthritis is not caused or aggravated by his service-connected right knee disability. She explained that there was no documentation of a chronic right knee problem when he had the motor vehicle accident in 1991, and post-service medical records show more problems with the left knee than with the right knee. VA clinical records showed complaints of episodic left knee pain following the motor vehicle accident, and he required a steroid injection for left knee pain in 1999. An April 2001 MRI also showed a tear of the left medial meniscus with mild degenerative joint disease. She concluded that his left knee arthritis is a primary rather than a secondary condition. There is no medical opinion otherwise relating the Veteran’s left knee disorder to his military service or to his service-connected right knee disability. The Board affords substantial probative weight to the September 2017 VHA opinion, as it is based on an accurate review of the claims file, to include the lay and medical evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the examiner provided a reasoned explanation for her opinion with clear conclusions. The Board does acknowledge the Veteran’s assertion that he hurt both knees in service as a result of the motor vehicle accident. See May 2010 Board hearing transcript at 9; April 2016 VA examination report at 2 (reporting that he injured both knees in a motor vehicle accident in September 1970). The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, although the Veteran is competent to report an injury in service and symptoms since that time, the Board finds that such statements are not reliable or credible. Notably, he was diagnosed with a right knee abrasion following the September 1970 accident, yet there was no report of any left knee injury or problems at that time. See AZ v. Shinseki, 731 F.3d 1303 (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). Moreover, an October 1970 separation examination was normal, and the Veteran denied having a medical history of a trick or locked knee at that time. Thus, there was actually affirmative evidence showing that he did not have a left knee disorder at the time of his separation from service. In addition, the Veteran has provided inconsistent reports regarding the onset of his left knee disorder. During the May 1991 VA examination, he complained of bilateral knee pain and swelling since 1990, which would have been approximately twenty years after his separation from service. Such a statement contradicts his more recent statements regarding an injury and onset in service. The Board also acknowledges the lay assertions that the Veteran’s current left knee disorder is related to his military service or to his service-connected right knee disability. However, even assuming the Veteran is competent to opine on this matter, the Board finds that the specific opinion of the VHA physician is of greater probative weight than the more general lay assertions in this regard. The physician has training, knowledge, and expertise as an orthopedic surgeon on which she relied to form the opinion. She also considered the complete and accurate factual premise, including the lay statements, and provided rationale for the conclusions reached. Based on the foregoing, the evidence does not show that a left knee disorder manifested in service or within one year thereafter or is otherwise related to the Veteran’s military service or to his service-connected right knee disability. Therefore, the Board concludes that the weight of the evidence is against entitlement to service connection for a left knee disorder. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel