Citation Nr: 18158955 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-47 506 DATE: December 19, 2018 ORDER Entitlement to service connection for right knee arthritis is denied. Entitlement to service connection for left knee arthritis is denied. FINDINGS OF FACT 1. The Veteran’s right knee arthritis did not begin in, and is not otherwise etiologically related to, his active duty military service. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a left knee condition, and there is no evidence suggesting his left knee symptoms have resulted in functional impairment which limited his earning capacity. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marine Corps from April 1973 to April 1975 and in the Navy from March 1978 to January 1979. He was a veteran of the Vietnam Era and Peacetime. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a request for a Board hearing was made by the Veteran’s representative in February 2017. See VA 646 Form. However, a February 2017 correspondence (VA claims intake center’s form, with the following box checked: “I would like to withdraw the request”) clearly indicates that the Veteran intended to withdraw his previous hearing request. 38 C.F.R. § 20.704 (e) (2017). This withdrawal request was acknowledged by the RO, as evidenced by an October 2017 correspondence sent to the Veteran. Therefore, there is no outstanding hearing request. 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). Thus, the Board need not discuss any potential issues in this regard. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Gilbert, 1 Vet. App. at 53. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to compensable degree within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for right knee arthritis is denied The Veteran claims that although diagnosed post-service, his right knee arthritis resulted from his military training and his military occupational specialty (MOS) of field artillery fire control man. His MOS is confirmed by his military personnel records. The first element of service connection requires medical evidence of a current disorder. The presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the current diagnosis has been established. In October 2013, the Veteran was diagnosed with “degenerative arthritis with inflammatory flare and pain right knee.” As for the second element, the Veteran alleges that his current disability is directly related to his MOS. While due consideration must be given to the places, types and circumstances of the Veteran’s service, a review of the Veteran’s service treatment records fails to show any complaints of, treatment for, or diagnosis of a right knee disability while in service. In fact, reports of medical examinations from April 1975 and December 1977 show “normal” lower extremities/knee flexion and extension. Also, during these examinations, the Veteran specifically denied having any symptoms of arthritis, bone/joint deformities, or tricked/locked knees. The Veteran’s December 1978 separation report further indicates “good health, no medication,” “normal” lower extremities and knee flexion/extension, and “no disqualifying defects, communicable disease were noted.” Having fully reviewed the Veteran’s service treatment records, the Board concludes the Veteran did not experience an in-service incurrence of knee arthritis or any chronic knee condition. The Board also concludes that the Veteran is not entitled to presumptive service connection pursuant to 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), and 3.309(a). Initially, there were no manifestations of right knee arthritis or symptoms during service. The Veteran’s service treatment records are entirely silent as to complaints of knee condition. In fact, the Veteran complained of his right knee for the first time in September 2012 (see 2012 September private treatment records), while he separated from active duty in April 1979. The Veteran was diagnosed with right knee arthritis in December 2013. Therefore, there is no objective medical evidence in the record showing that the Veteran’s right knee arthritis developed within one year after separation from active service or has been continuous since discharge. Based on these considerations, the Veteran has not proven entitlement to presumptive service connection under the chronic disease regulations. As for the application of the continuity of symptomatology, the Board again notes that the Veteran claimed his right knee pain for the first time in September 2012, while he left the service in April 1979, which weighs against the finding of the continuity of symptomatology. The Veteran’s claims file contains private and VA medical records beginning in 2009. While the Veteran sought treatment for his low back pain and left leg pain (sciatica) beginning in 2009, he did not raise any complaints concerning his knees at that time. In fact, a November 2009 record from Carolina Spine & Hand Center shows that he denied any history of musculoskeletal problems other than back pain, to include any history of joint pain, difficulty walking, or joint stiffness/swelling. The Veteran received chiropractic care for his back condition from 2010 to 2014. In September 2012, he complained of right knee pain, stating that he had fallen about 12 years earlier, injuring that knee. The Veteran also received frequent VA treatment from 2009 forward, yet his first complaint about right knee pain was in August 2013, when he requested an injection for right knee pain, stating he had had pain for about 12 years after a fall in his yard. Therefore, this evidence shows that despite receiving medical care for orthopedic issues, the Veteran did not raise any complaints about his right knee until 2012. It is reasonable to assume that if he were, in fact, experiencing chronic right knee pain, he would have raised such with his medical providers while receiving treatment for other orthopedic issues. It is also important to note that when he did begin to complain about right knee pain, he related it back to a fall that occurred in approximately 2000 – decades after his service. He did not report any military injuries to his medical providers, nor did he report a 30+ year history of knee pain. The fact he related it to a post-service injury weighs heavily against any claims he makes now that it began in service. While the Veteran asserts his right knee arthritis resulted from an in-service injury, event, or disease, including his MOS and military training, he is not competent to provide an etiology opinion. The Board recognizes that the Veteran is competent to provide lay statements as to observable symptoms, such as pain, but the issue of etiology is medically complex, as it requires medical training. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, to the extent that the Veteran has attributed the cause of his right knee condition to his MOS and military training, he is not competent to issue such an opinion, and his remark is not probative. There is also no medical evidence that provides nexus opinion. VA treatment records merely note cortisone injections made for alleviating the Veteran’s pain in the right knee, limitation on his right knee movement (difficulties with weight bearing and ambulatory activities, squatting and crawling), and a history of increasing pain/varus deformity in his right knee. There is no suggestion in the medical records the knee condition is in any way related to service, nor has the Veteran reported any military injuries to his medical providers. The Veteran has failed to establish the in-service incurrence of disease or injury and medical nexus prongs of a direct service connection claim. Shedden, 381 F.3d 1166 -1167. Based on the above medical evidence, all of which are highly probative, and the lay evidence that has no probative value, the evidence preponderates against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In summary, there is no evidence suggesting the condition is related to service or that there have been continuous symptoms since service, but, rather, that the symptoms began following a post-service injury. As the preponderance of the evidence is against the claim of service connection for a right knee disability, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). 2. Entitlement to service connection for left knee arthritis is denied The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C. § 1110; See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Historically, symptoms such as pain or increased sensitivity, without a diagnosed or identifiable underlying malady, were not sufficient to establish a current disability for VA compensation purposes. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (Sanchez-Benitez I). However, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit rejected such a theory, holding that pain can constitute a current disability under 38 U.S.C. § 1110, so long as it results in functional impairment. After a full review of the record, the Board finds that the claim must be denied because the Board finds that he has not been diagnosed with a current left knee condition. The Veteran has not established that his left knee symptoms resulted in a functional impairment which limited his earning capacity. While the Veteran claimed of having some pain in his left leg to his chiropractor, that has been diagnosed as sciatica. There are no complaints specific to the left knee. Some of the private chiropractor records show complaints of knee pain without identifying which one. To the extent that can be construed as including the left knee, there has been no diagnosis in any of the VA or private records of a left knee condition. X-rays of the left knee during the 2016 VA examinations were negative. Finally, there are no statements suggesting the Veteran has a left knee condition that has resulted in functional loss or impaired his earning capacity. Consequently, the Board finds that the Veteran has not experienced a current disability of the left knee for VA purposes under both Sanchez-Benitez I and Saunders. Thus, the Veteran has no current left knee condition for which service connection may be granted. See also Brammer, 3 Vet. App. at 225. MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lee, Associate Counsel