Citation Nr: 18157541 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 11-26 822 DATE: December 13, 2018 ORDER Entitlement to service connection for a left lower extremity disability, including osteoarthritis, is denied. Entitlement to service connection for a right knee disability, including osteoarthritis, and to include secondary to left lower extremity disability, is denied. FINDINGS OF FACT 1. The Veteran’s left lower extremity disability, including osteoarthritis did not have its onset during service, did not manifest to a compensable degree within one year of separation from active service, and is not otherwise causally related to active service. 2. The Veteran’s right knee disability, including osteoarthritis, did not have its onset during service, did not manifest to a compensable degree within one year of separation from active service, and is not otherwise causally related to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement for service connection for left lower extremity disability, to include osteoarthritis, have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1116, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2017). 2. The criteria for entitlement for service connection for right knee disability, to include osteoarthritis, have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1116, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from January 1987 to May 1987 and again from November 1990 to May 1991. This matter comes before the Board of Veterans’ Appeals (the Board) on appeal from March 2010 and July 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In the March 2010 rating decision, the RO determined that new and material evidence sufficient to reopen a previously denied claim of service connection for a left lower leg injury had not been received. In the July 2010 rating decision, the RO confirmed the March 2010 determination; and, denied a claim of service connection for a right knee injury. In a September 2017 decision, the Board reopened the previously denied claim of service connection for a left lower extremity disability; and, remanded the reopened claim, along with the claim of service connection for a right knee disability, for additional development. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the remand orders. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d Dyment v. Principi, 287 F. 3d 1377 (2002). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service occurrence 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §1112 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. §3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or, if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. §3.303 (b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. §3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. §3.310(a). Establishing service connection to a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. §3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C. §5107(b) (2012); 38 C.F.R. §3.102 (2017). An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must be preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a left lower extremity disability, to include osteoarthritis. The Veteran contends that she is entitled to service connection for a left lower extremity disability, to include osteoarthritis. She alleges that she injured her left leg in physical training after slicing it open on a piece of rebar steel while deployed. After careful review of the entire record, the Board finds that the preponderance of the evidence is against the Veteran’s claim. In July 1986, the Veteran underwent a pre-service entrance medical examination. She was noted to have a scar on the left knee after sustaining a bicycle fall. In April 1987, the Veteran reported left knee pain while in service and was diagnosed with probable muscle strain. She was given 3 days rest for treatment. A right knee x-ray was unremarkable, with no evidence of fracture, dislocation or degenerative changes. Likewise, there were no joint effusions or soft tissue calcifications seen. In April 1991, the Veteran’s service treatment records (STRs) indicate that she sliced her left leg on rebar while deployed and had an anterior left tibial scar. The STRs did not note any further injury or need for treatment. In December 1993, the Veteran underwent a private physical examination, and examination of the lower extremities was unremarkable. In April 2008, the Veteran underwent a VA physical examination. She complained of knee pain. The range of motion on all joints was recorded as normal. There was no clubbing or cyanosis noted. The Veteran was diagnosed with obesity. She did not want to take medication for the pain. In April 2010, the Veteran’s VA treatment records note that she reported knee pain. The Veteran had knee crepitus and was diagnosed bilateral knee pain with suspected overuse and suspected early osteoarthritis. X-rays, however, were normal. In November 2011, the Veteran underwent a knee and lower leg VA examination. She was diagnosed with left knee arthralgia and mild crepitus. Her bone density was noted as normal, her joint spaces were intact. There was no fracture or dislocation and no bone abnormality. The VA examiner concluded that the Veteran’s left leg disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted that the muscle strain that the Veteran was diagnosed with in April 1987 is a condition that is healed with rest and that the Veteran did not have any reported knee problems for several years. The Veteran’s X-rays were also negative for osteoarthritis. The Veteran’s private treatment records indicate that in July 2015 she was diagnosed with bilateral knee osteoarthritis. An April 2016 private progress note shows treatment for bilateral knee osteoarthritis. The Veteran asked the provider if her knee disability could be related to military service. The provider responded that the Veteran’s service contributed to the onset of her osteoarthritis if she was doing a lot of running, jumping, and hiking throughout her military career. The same note indicates that the onset is also caused by genetics and functions of normal wear and tear. A June 2016 right knee MRI revealed that there was low-grade cartilage loss in the medial compartment, there was no evidence of lateral meniscal tear or ligament tear, and there was small joint effusion. No acute bone abnormality was identified. In November 2016, the Veteran underwent a right knee arthroscopy. Range of motion was normal, there was crepitation, trace effusion, and no instability. There were no complications associated with the procedure. In October 2017, the Veteran underwent another VA examination. She was diagnosed with knee joint osteoarthritis. Her range of motion was abnormal and she had crepitus. The VA examiner concluded that the Veteran’s left leg disability, including bilateral knee osteoarthritis is less likely as not caused by or the result of her service, specifically the claimed injury of slicing her left leg on a rebar during deployment in 1991. After review of all medical records, the VA examiner noted that there were no signs of injury or abnormality outside of the noted left leg scar caused by the claimed injury. The VA examiner also concluded that the Veteran’s osteoarthritis is possibly caused by obesity, and likely a part of the normal aging process and stress of use over time. In summary, the record shows that the current left lower extremity disability, including osteoarthritis, was not present during the Veteran’s service. STRs illustrate an April 1987 possible muscle strain and the 1991 scar. However, the medical opinion concluded that these injuries were not related to her July 2015 osteoarthritis diagnosis. The record also shows that the left lower extremity disability did not manifest to a compensable degree within one year of separation. Both December 1993 and April 2008 lower extremity examinations showed no abnormalities. Indeed, the first post-service evidence of knee pain was in April 2008. She was not diagnosed with osteoarthritis until July 2015. The Board notes that although the record shows that the Veteran has bilateral knee osteoarthritis, the most probative evidence of record indicates that it is not causally related to her active service or any incident therein, including the 1991 injury that left a scar on her left leg. As set forth above, the RO obtained two examination reports and each examiner concluded that it is less likely than not that the Veteran’s current left leg disability is causally related to her service, including her April 1987 non-definitive muscle strain diagnosis and the 1991 leg scar. These include the November 2011 and October 2017 examinations, which the Board finds probative. The Board assigns the November 2011 and October 2017 medical opinions great probative weight. They were rendered by qualified medical professionals who examined the Veteran, considered her complete medical history, which includes a diagnosis of obesity and overuse of joints, and reviewed current diagnostic test results. Moreover, the experts provided a rationale for the conclusions reached, including references to pertinent evidence of record, such as service treatment records and post-discharge medical history. With respect to the April 2016 private treatment note, the Board assigns more probative value to the VA examination. The private treatment provider did not provide any rationale for the opinion, which was largely speculative. There is no indication that any factors outside of service were considered. The private treatment provider likewise did not review the Veteran’s medical history and service treatment records and did not take into consideration the length between service and diagnosis. With respect to the Veteran’s claims that her left lower extremity disability was caused by her slicing the left leg during service and that lay evidence can be competent and sufficient to establish the elements of service connection when supported by a later medical diagnosis, the Board cannot assign this testimony probative weight in light of the medical evidence to the contrary. The STRs illustrate that the only injury that the Veteran sustained to her left leg as a result of cutting it on a rebar was a left tibial scar. No other injuries were noted. Additionally, the Veteran asserts that it was her 1991 left leg injury that caused the obesity and caused the osteoarthritis. As previously mentioned, there are no records to support that she had any continuity of symptoms. She was diagnosed with obesity and osteoarthritis many years after service. The medical opinions of the VA examiners conclude that the Veteran’s current left lower extremity is not related to her service and the left leg scar that she sustained during service. Additionally, the Veteran does not possess the medical knowledge and training to conclude that her in-service injury caused her left leg disability. In summary, the Board finds that the most probative evidence shows that the Veteran’s current left leg disability did not have its inception during the Veteran’s active service, did not manifest to a compensable degree within one year of separation, and is not otherwise causally related to service. For these reasons, the preponderance of the evidence is against the clam. 38 U.S.C. §5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. at 53. 2. Entitlement to service connection for a right knee disability, to include osteoarthritis, and to include secondary to left lower extremity disability. The Veteran contends that she is entitled to service connection for a right knee disability, to include secondary to her left lower extremity disability. After careful review of the record, the Board finds that the preponderance of the evidence is against the Veteran’s claim. The Veteran’s medical history and evidence has been summarized above. The record shows that the current right knee disability, including osteoarthritis, was not present during the Veteran’s service and did not manifest to a compensable degree within one year of separation. Subsequent lower leg examinations provided normal results and the August 2017 VA medical opinion concluded that the knee pain experienced in service did not result in a chronic condition. The records illustrate that there is no continuity of symptomatology between the knee pain in service and the claimed disability. The Board notes that although the record shows that the Veteran has right knee osteoarthritis, the most probative evidence of record indicates that it is not causally related to her active service or any incident therein, including the knee pain reported in 1987. In the alternative, the Veteran claims that her right knee disability is aggravated by her left lower extremity disability. In order to receive compensation for secondary service connection, the aggravating disability must be service-connected. The Veteran’s claim for service connection for left lower extremity disability has been denied. Thus, as service connection is not in effect for left lower extremity disability, for any portion of the period on appeal, entitlement to service connection for right knee disability may not be granted as secondary to left lower extremity disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim. The record shows that the right knee disability was not present in service and was first diagnosed in July 2015, did not manifest to a compensable degree within one year of service separation, and was not shown to be causally related to or aggravated by the Veteran’s service-connected disability. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kuksova, Associate Counsel