Citation Nr: 1808289 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-32 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from April 1997 to July 1997 and on active duty from February 2004 to April 2005, to include service in Kuwait and Iraq. He had service in the Army National Guard from 1997 to 2006 with several periods of ACDUTRA and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon. In May 2016 and September 2017, this matter was remanded for additional development. FINDING OF FACT A currently diagnosed left knee disorder of osteoarthritis was not incurred or aggravated during and is unrelated to any event or incident during any period of active duty, ADCUTRA, or INACDUTRA, and was not shown to be proximately due to or aggravated by service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disorder have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1113, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions, including pursuant to 38 C.F.R. § 3.103(c)(2) (2017) and Bryant v. Shinseki, 23 Vet. App. 488 (2010). 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, such as arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As defined by statute and regulation, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24) (2012); 38 C.F.R. § 3.6 (a), (d) (2017). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C. §§ 101 (22), 316, 502, 503, 504, 505 (2012); 38 C.F.R. § 3.6 (c)(3) (2017). Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106 (2012). As to undiagnosed illness claims, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multisymptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). Here, the Veteran's service personnel records clearly reflect that he served in Southwest Asia from 2004 to 2005. Thus, the Veteran is a Persian Gulf Veteran for the purposes of 38 U.S.C. § 1117 (2012) and 38 C.F.R. § 3.317 (2017). An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Evidence of record detailed that the Veteran has been awarded service connection for bilateral hearing loss, PTSD, chronic low back strain with degenerative disc disease, cervical strain, tinnitus, and a low back scar. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2017). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (2017). The Veteran also seeks service connection for a present left knee disorder, which he contended had its onset during his military service. He has asserted that he would have to crouch down while on guard duty and, as a result, he has suffered from pain in his knee since that time. The Veteran also reported that he injured his knee stepping into a hole while play football during training for the National Guard in 2002. A January 2004 service treatment note showed a complaint of bilateral knee pain. In February 2004, the Veteran reported for a follow up for bilateral knee pain, noting pain in his knees when sitting in a cramped space. The assessment was chronic knee pain. In an October 2017 VA examination report, the examiner diagnosed left knee osteoarthritis with a date of diagnosis that same month. The Veteran was noted to report left knee pain that started in 2002 when he was playing football, stepping into a hole with his left foot and hyper-extending his left knee. He indicated that he went to the unit medic and received ice as well as Ibuprofen with no X­ray taken. It was noted that his pain lasted two weeks after the incident and then continued episodically. The Veteran exhibited full left knee range of motion with no pain noted. An October 2017 X-ray report revealed no left knee fracture or dislocation with moderate degenerative narrowing of left medial knee compartments. After examining the Veteran and reviewing the record as well as current peer reviewed medical literature, the examiner indicated that the Veteran's left knee symptoms were attributable to left knee osteoarthritis. The examiner then opined that is was less likely as not that such disability had onset in or was causally related to the Veteran's active duty service, to include as due to environmental exposure during service in Southwest Asia during the Persian Gulf War. The examiner also opined that it was less likely as not that the left knee disability was caused by or permanently aggravated by a service­connected disability, to include cervical spine and low back disabilities. After reviewing all of the evidence, the Board finds that entitlement service connection for a left disorder is not warranted. As an initial matter, the preponderance of the evidence of record is against finding that the Veteran's claimed symptomatology, to include knee pain, is related to an undiagnosed illness or medically unexplained chronic multisymptom illness. The October 2017 VA examiner specifically assigned a diagnosis related to the claimed symptoms and noted that the diagnosed left knee disorder was less likely than not related to environmental exposure during service in Southwest Asia during the Persian Gulf War. There is not a sufficient basis in the record to conclude that a left knee disorder was incurred during active military service, or manifested as a chronic disease within a year thereafter, or for years after his discharge from active duty service in 2005. Service treatment records simply reflected two complaints of bilateral knee pain in 2004. Post-service medical evidence of record first showed findings of left knee osteoarthritis in 2017, many years after the Veteran's separation from active service. The passage of many years between discharge from active service and the continuity of symptomatology or medical documentation of a claimed disability are factors that tend to weigh against a claim for service connection. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). The evidence fails to reflect that arthritis was manifested to a compensably disabling degree within the first year after the Veteran completed his period of active duty service in 2005. Although there is evidence of a currently diagnosed left knee disorder, there is no probative evidence of record linking that disorder to any period of active military service or any incident therein. Significantly, the record does not include any probative medical evidence or opinion suggesting a causal relationship between the Veteran's claimed knee disorder and his active military service or service-connected disabilities, and the Veteran has not identified or alluded to the existence of any such opinion. In fact, in the October 2017 VA examination report, the examiner specifically addressed the Veteran's contentions that his claimed disorder was related to active military service or was secondary to his service-connected disabilities. The examiner provided a complete rationale for the stated opinions, citing to a detailed review of the evidence of record as well as medical literature. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). As such, the Board finds that the most persuasive medical evidence that specifically addresses the question of whether the Veteran's claimed left knee disorder was incurred during active military service, manifested as a chronic disease within a year after active duty service discharge, was etiologically related to events in active military service, or was caused or aggravated by his other service-connected disabilities weighs against the claim. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Thus, there is no basis upon which to conclude that the Veteran's present left knee disorder was incurred in or aggravated during active duty, resulted from disease or injury incurred or aggravated while performing ACDUTRA, or resulted from an injury incurred or aggravated while performing INACDUTRA. The statements from the Veteran are competent evidence as to observable symptomatology, including pain. See Barr, 21 Vet. App. at 307. However, the statements that the Veteran's claimed left knee disorder was a result of active military service or was secondary to service-connected disabilities draw medical conclusions, which the Veteran is not qualified to make. Although lay persons are competent to provide opinions on some medical issues, the etiology of the Veteran's claimed left knee disorder falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. Moreover, the October 2017 VA examiner considered the Veteran's lay assertions when providing the aforementioned medical opinion. Accordingly, the criteria to award entitlement to service connection for a left knee disorder have not been established, either through medical or probative lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a left knee disorder, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a left knee disorder is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs