Citation Nr: 20002283 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 10-44 174 DATE: January 10, 2020 ORDER Entitlement to service connection for a left knee disorder, to include arthritis, is denied. Entitlement to service connection for a right knee disorder, to include arthritis, is denied. FINDINGS OF FACT 1. The Veteran’s left knee disorder did not manifest in service or within one year of separation from service and is not otherwise etiologically related to active duty service. 2. The Veteran’s right knee disorder did not manifest in service or within one year of separation from service and is not otherwise etiologically related to active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disorder, to include arthritis, are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right knee disorder, to include arthritis, are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1970 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2013, the Veteran testified before a Veterans Law Judge (VLJ). The appeal was then remanded in March 2014. In April 2016, the Veteran was advised that the VLJ who conducted his June 2013 hearing was unable to participate in a decision in his appeal. He elected another hearing, which was provided in September 2016 before the undersigned VLJ. The Board then remanded the appeal in July 2017. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (such as arthritis) may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 U.S.C. § 1112(a); 38 C.F.R. §§ 3.307(a)(3); 3.309(a). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires that the chronic disease has manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at that time, as distinguished from merely isolated findings. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for a left knee disorder, to include arthritis, is denied. 2. Entitlement to service connection for a right knee disorder, to include arthritis, is denied. The Veteran asserts that his current bilateral knee disorder is due to an injury incurred in service during the demolition of a wall when a large chunk of concrete fell and struck his knees, causing him to fall 10 feet from a ladder. See April 2008 VA Form 21-526, August 2008 VA treatment records, October 2010 VA Form 9. The first element of service connection, current disability, is established, as the Veteran is diagnosed with bilateral knee meniscal tears with degenerative arthritis. See July 2018 VA examination report. As to the second element, in-service incurrence or aggravation of a disease or injury, the Veteran’s service treatment records (STRs) document that in April 1971, he dropped a concrete block onto his left knee (medial aspect) resulting in pain and swelling. See STRs. X-rays taken at that time were normal and slight swelling and tenderness were noted. The Veteran’s left lower extremity was placed in a cylinder cast for one week and upon removal slight soreness was noted. See April 1971 STRs. There is no evidence the Veteran was treated in service for any right knee injury or disorder. To the extent that he now asserts that he injured his right knee in service during this incident, or that he fell from a ladder in relation to the same, the Board affords more probative value to the more contemporaneous STRs demonstrating only a left knee injury and treatment. Notably, the Veteran’s March 1972 Medical Board summary is absent any complaints related to either knee. Accordingly, the second element of service connection is met only as to the left knee, and service connection for a right knee disability fails on this basis alone. Regarding the final element, nexus, the only competent opinion of record is against the claim. In this regard, the July 2010 and May 2014 VA examiner’s opinions against the claim are inadequate. Specifically, the July 2010 VA examiner stated that an opinion could not be rendered without resorting to speculation without adequate explanation, and the May 2014 VA examiner did not consider the Veteran’s in-service treatment, his Board hearing testimony, and lay statements of record noting a continuity of left knee symptoms since service. Thus, these opinions will not be further addressed. The July 2018 VA examiner, after reviewing the entire claims file including multiple lay statements from the Veteran and others that his knees have been painful since his discharge, concluded that it was less likely than not that the Veteran’s current knee disorders were proximately due to the in-service demolition incident. See, e.g., August 2009 lay statements from the Veteran, K.E., R.C.; March 2013 Veteran lay statement; November 2014 Veteran lay statement; and March 2017 lay statements from T.L., M.V., J.V. To support this conclusion, the examiner emphasized the lack of additional complaints of knee pain or additional reports of knee injuries in the STRs that would indicate a chronicity of the condition, the lack of evidence of the Veteran seeking treatment for a knee disability for over thirty years post-discharge, and the Veteran’s own more contemporaneous reports in post-service treatment records that his knees were not painful until 2007. See, e.g., January 2008 VA Orthopedic Surgery Consult (noting the Veteran’s report that his knees were “fine for quite a while” after the in-service injury, with no symptoms until 2007, 35 years later); compare VA April 2010 Rheumatology consultation note (noting the Veteran’s report of continuous knee pain since 1971). Instead, the July 2018 examiner concluded that the Veteran’s current bilateral knee disorders were more likely than not a result of the aging process and obesity. Indeed, this finding is consistent with other evidence of record. See, e.g., January 2008 VA Orthopedic Surgery Consult (in which the examining clinician was unable to render any diagnosis of the bilateral knees, instead noting that the Veteran’s main problem was his weight); April 2009 VA Anesthesiology Note (indicating that the Veteran’s description of his disability did not correlate with the objective findings, including normal looking knees and x-rays); April 2010 Rheumatology Consultation Note (indicating that the Veteran’s reported history of bilateral knee disorders and his examination did not support his assertion that the disorders began in service). The Board affords the July 2018 VA opinion against the claim probative value, as it is well-reasoned, based on an accurate review of the record, and supported by other evidence in the claims file. There is no competent evidence to the contrary. In this regard, to the extent the Veteran asserts his knee disorders are related to service, he is not competent to do so, as he does not have the requisite expertise to assess the etiology of orthopedic disabilities. Finally, there is no indication that arthritis of the bilateral knees manifested within the first post service year or during service to a sufficient degree to identify the disease entity. 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Instead, degenerative changes were first noted in May 2010 as a result of magnetic resonance imaging, more than 35 years after service separation. See May 2010 VA treatment records. Therefore, the provisions regarding presumptive service connection and service connection based on continuity of symptomatology are not applicable to this Veteran’s case. In any event, to the extent that the Veteran currently asserts that he was discharged from service due his bilateral knee disorders, the Board finds his assertions lack credibility, as his service records clearly denote that the Veteran was admitted into service with non-disabling/asymptomatic pes planus and was subsequently medically evacuated from his duty station in Guantanamo Bay due to painful and inoperable bilateral foot disorders to Bethesda Naval Hospital, where he discharged for pes planus with characteristic callosities and bilateral hammer toe deformities. See March 1972 Medical Board Summary. In addressing this appeal, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.S. § 5107(b). See also 38 C.F.R. § 3.102. However, as the preponderance of the evidence is against the claim, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The benefit sought on appeal is accordingly denied. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.