Citation Nr: 18155759 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-38 594A DATE: December 6, 2018 ORDER Entitlement to service connection for a bilateral knee disability is denied. FINDINGS OF FACT 1. According to the Veterans Benefits Management System (the Veteran’s virtual file) his service treatment records (STRs) were first associated with his virtual file in February 2012; these records had not been previously associated with the claims file when VA first denied the Veteran’s claim of service connection for a bilateral knee disability in March 1986. 2. The preponderance of the evidence weighs against finding that the Veteran’s bilateral knee disability had its onset in service or that arthritis manifested within one year of service, or that a current knee disability was caused by his active duty military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1968 to August 1970 and April 1981 to November 1985. He served honorably in the U.S. Army, including combat service in Vietnam; he also served in the Army Reserve and the Army National Guard. The Board thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the December 2012 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran’s appeal has been characterized and developed as a claim to reopen a prior denial which the RO reopened and denied in an October 2014 statement of the case. However, under 38 C.F.R. § 3.156(c)(1), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such records include, but are not limited to, additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records. An award based in whole or in part on these additional service department records is effective on the date entitlement arose or the date VA received the previously denied claim, whichever is later. 38 C.F.R. § 3.156(c)(3). The claim will not be reconsidered under 3.156(c) if the service records associated with the file subsequent to the initial rating decision could not have been obtained when VA first decided the claim, either because they did not exist at the time or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. 38 C.F.R. § 3.156(c)(2). In this case, in the March 1986 rating decision, it was acknowledged that the Veteran’s service medical records from April 1981 to November 1985 were unavailable except for his separation examination. However, in February 2012, the Veteran’s STRs dated from March 1981 to September 1990 were associated with the file. These service department records were not previously considered in the March 1986 decision and are relevant to his claim, as he alleges that his claimed bilateral knee disability was incurred while on active duty. There is no indication that the Veteran did not provide sufficient information to search for or secure these records at the time of the March 1986 decision. Given the submission of these new service department records, the Veteran’s service connection claims must be reconsidered without regard to the previous final denial. 38 C.F.R. § 3.156(c). 1. Entitlement to service connection for a bilateral knee disability is denied. The Veteran contends that he is entitled to service connection for a bilateral knee disability. He states that his disability was incurred in service and he has experienced continued pain over the years. In a November 2018 brief, citing 38 U.S.C. § 1154, the Veteran’s representative contends that entitlement to service connection is warranted given his combat service in Vietnam and his years as an infantryman. The Board acknowledges that under the combat presumption, unless rebutted by clear and convincing evidence, satisfactory lay or other evidence will be accepted as sufficient proof that an injury or disease was incurred or aggravated in combat. 38 U.S.C. § 1154(b), 38 C.F.R. § 3.304(d). However, in his June 2011 claim the Veteran asserts that his disability started in 1983, thirteen years after his combat service in Vietnam ended. Moreover, the combat presumption under 38 U.S.C. § 1154(b) does not provide a substitute for evidence in establishing a nexus between an in-service event and the current disability. Clyburn v. West, 12 Vet. App. 296, 303 (1999). As demonstrated below, the preponderance of evidence is against a finding of a nexus. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 38 1 F.3d 1163, 1166-67 (Fed. Cir. 2004). Chronic diseases identified under 38 C.F.R. § 3.309(a) (including arthritis) may be service connected if noted during service and either (1) are shown in service to be chronic, or (2) manifest with continuity of symptomatology. 38 C.F.R. § 3.303(b). To be shown in service to be chronic, the combination of manifestations must be sufficient to identify the disease entity and there must be sufficient observation to establish chronicity at the time; for example, a manifestation of joint pain is insufficient to permit service connection for arthritis. Id. Alternatively, these chronic diseases are presumptively service connected if they manifest to a degree of at least 10 percent within one year from the date of separation. 38 C.F.R. § 3.307(a)(3). A veteran is not precluded by presumptive laws and regulations from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Decisions of the Board shall consider all information and lay and medical evidence of record in a case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Medical opinions must contain clear conclusions with a reasoned medical explanation based on supporting data. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Contemporaneous evidence has greater probative value than history as reported by the claimant. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Service connection is not warranted under any of the bases afforded specifically to certain chronic diseases under 38 C.F.R. § 3.309(a). The preponderance of evidence is against finding that the Veteran’s bilateral osteoarthritis of the knees was shown to be a chronic disease in service. Arthritis is a chronic disease contemplated under the regulation; however, the Veteran’s STRs contain no in-service showing of arthritis. 38 C.F.R. §§ 3.303(b), 3.309(a). The Veteran’s active duty STRs contain complaints of bilateral knee pain but do not reflect any diagnosis of arthritis in the knees. In August 1985, a treatment provider noted the Veteran’s history of bilateral pain in knees; however, based on imaging, the provider concluded that the knee pain stemmed from a two-degree stress reaction. In a December 2012 examination, the examiner notes stress reaction as a disability that is usually transient, related to running, and resolved with rest. The preponderance of the evidence is against a finding that arthritis was manifested to a compensable degree within a year of service separation from either period of service. In an August 1985 Report of Medical Exam, the examiner indicated that the Veteran’s lower extremities and musculoskeletal system were normal. Imaging from May 2011, many years after service, demonstrates that the Veteran has bilateral mild osteoarthritis in the knees. Additionally, the preponderance of the evidence is against a finding of continuity of symptomatology since service. In a September 1986 Report of Medical Exam, the examiner indicated that the Veteran’s lower extremities and musculoskeletal system were normal. In his September 1986 Report of Medical History, the Veteran indicated that he did not have swollen or painful joints, locked knees, or a bone, joint, or other deformity. In May 1990 X-rays were taken of the Veteran’s knees but the physician’s impressions are not included in the record; nevertheless, four months later, in a September 1990 Report of Medical Exam, the examiner indicated normal lower extremities and musculoskeletal system. In December 2010 the Veteran related to the treatment provider that he had chronic joint pain in his hands, knees, and shoulders since the mid-1990s. In August 2004 the Veteran complained to his treatment provider of pain in the knees and hips. While the Veteran stated in July 2011 that he has experienced continuous pain over the years, his statements as to continuity of symptomatology lack credibility as they are inconsistent with his statement in 1986 that he did not have painful joints and are inconsistent with his statement to a December 2010 medical provider that his chronic pain in the knees began in the mid-1990s. In making such a credibility finding, the Board is not implying that the Veteran has any intent to deceive. Rather, he may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred many years ago. Therefore, the preponderance of evidence is against a finding of continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a). Although service connection under the presumption is not established, since they do not preclude a finding for direct service connection, further analysis is appropriate. Combee at 1043-44. The preponderance of evidence is against a finding of direct service connection. In a July 2011 statement, the Veteran asserted that his disability was incurred in service as a result of daily exercise including running between two and twelve miles per day, running and marching on pavement, carrying heavy rucksacks, and falling during night training. He stated that he felt pain in his knees and numbness in his lower legs while marching and running. He conveyed that when he visited his troop medical clinic, he was told that this was a result of aging, but when he visited the family practice clinic, after taking X-rays he was given pills and muscle relaxers and placed on a profile that prohibited running, jumping, marching, and walking for long distances. He added that he was still on the profile when he was discharged. However, the evidence of record does not demonstrate a causal link between the Veteran’s disability and his service. While the Veteran contends that his disability was incurred in service, he is a layperson and does not profess to have the medical expertise required to determine the etiology of his arthritis. Jandreau at 1377. As noted above, the treatment provider at the family practice clinic concluded that the knee pain stemmed from a two-degree stress reaction. Additionally, in a December 2012 examination report, the examiner concluded that it is less likely than not that the Veteran’s bilateral knee arthritis was caused by or a result of the physical demand of being in an infantry unit. The examiner noted that the August 1985 X-rays showed cortical thickening of the middle part of the tibial bones thought “consistent with stress reaction” without mention of any knee pathology. The examiner noted that the May 2011 X-rays showed “subtle” changes of arthritis of the knees, which is consistent with aging, and opined that there is no way these subtle changes could have started in active duty and remained subtle 24 years later. The examiner concluded that there is no objective evidence of the Veteran’s current claimed knee disabilities resulting from anything in active duty. The Board finds that a preponderance of evidence demonstrates that the Veteran’s disability was not incurred in service. 38 C.F.R. §§ 3.303. Hence, after reviewing all the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection for a bilateral knee disability is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Vashaw, Associate Counsel