Citation Nr: 20004888 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 17-46 995 DATE: January 23, 2020 ORDER Entitlement to service connection for right knee condition secondary to knee contusion is denied. Entitlement to service connection for left knee chondromalacia patella (left knee condition) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s claimed for right knee condition secondary to knee contusion began during active duty service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s claimed for left knee chondromalacia patella (left knee condition) began during active duty service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee condition secondary to knee contusion are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left knee chondromalacia patella (left knee condition) are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1980 to July 1981. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held in November 2019 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. At the hearing, the record was held open for 60 days to allow the Veteran to submit additional evidence. While the Veteran conveyed the intent of submitting a positive nexus statement in support of his claims for service connection, no such evidence has been submitted. The Board notes that "the duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the Board proceeds in adjudicating the Veteran’s claims for service connection based upon the evidence currently of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). An alternative method of establishing service connection for chronic diseases is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). 1. Entitlement to service connection for right knee condition secondary to knee contusion The question before the Board is whether the Veteran’s claimed for right knee condition secondary to knee contusion is at least as likely as not related to an in-service injury, event, or disease. As to the first element of Shedden, for service connection the Veteran must show a current disability. Per the Veteran’s VA treatment records, he has a current diagnosis of chronic bilateral knee pain. Thus, the Board finds that the Veteran’s claim satisfies the first element of Shedden for service connection. As to the second element of Shedden, for service connection the Veteran must show an in-service incurrence or aggravation of a disease or injury. Noted in the Veteran’s Service Treatment Records (STRs) are complaints of knee pain stemming from a motor vehicle accident that occurred while in service. See May 27, 1981 STR; see also November 2019 Board hearing transcript; February 2014 statement in support of claim. Thus, the Board finds that the Veteran’s claim meets the second element of Shedden for service connection. As to the last element of Shedden, for service connection the Veteran must show a causal relationship between the current disability and the in-service disease or injury. On the issue of nexus, there are no positive medical nexus opinions linking the Veteran’s claimed for condition to service. There is, however, a negative VA medical opinion stating it has been 33 years since the Veteran’s in-service motor vehicle accident that caused him a contusion and knee pain and that that same contusion was not shown on the Veteran’s accompanying July 2014 VA in-person examination, and therefore his claimed condition is less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or injury. See July 2014 VA medical opinion. Additionally, the VA examiner opined that the injury that the Veteran sustained in-service would not have caused his currently diagnosed condition. Id. The Board acknowledges the lay testimony of record relating the Veteran’s claimed for right knee condition to service. See November 2019 Board hearing transcript. While the Veteran is competent to describe symptoms relating to his condition, such as knee pain, he is not competent to render a complex medical opinion regarding the etiology of his diagnosed condition. As such, the question of etiology in this case may not be competently addressed by lay evidence. See Layno v. Brown, 6 Vet. App. 465, 469 - 470 (1994); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran’s VA treatment records reveal that he has a current diagnosis of chronic bilateral knee pain (knee arthralgia), and that he reports experiencing knee pain while in service, as well as ever since service, but there are no medical records indicating that he has a current diagnosis of an enumerated "chronic disease" listed under 38 C.F.R. § 3.309 (a). Therefore, as chronic bilateral knee pain (knee arthralgia) is not one of the chronic diseases listed under 38 C.F.R. § 3.309 (a), the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303 (b) do not apply for the Veteran’s claimed condition. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Ultimately the Board finds that the preponderance of the evidence does not show that the Veteran's currently diagnosed condition is related to service, and therefore service connection for right knee condition secondary to knee contusion cannot be granted on a direct basis. Accordingly, the Veteran’s claim must be denied. The benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for left knee chondromalacia patella (left knee condition) The question before the Board is whether the Veteran’s claimed for left knee chondromalacia patella (left knee condition) is at least as likely as not related to an in-service injury, event, or disease. As to the first element of Shedden, for service connection the Veteran must show a current disability. Per the Veteran’s July 2014 VA examination, the Veteran has a current diagnosis of chondromalacia in his left knee. Additionally, the Veteran’s VA treatment records reveal that he also has a current diagnosis of chronic bilateral knee pain. Thus, the Board finds that the Veteran’s claim satisfies the first element of Shedden for service connection. As to the second element of Shedden, for service connection the Veteran must show an in-service incurrence or aggravation of a disease or injury. Noted in the Veteran’s Service Treatment Records (STRs) are complaints of knee pain stemming from a motor vehicle accident that occurred while in service. See May 27, 1981 STR; see also November 2019 Board hearing transcript; February 2014 statement in support of claim. Thus, the Board finds that the Veteran’s claim meets the second element of Shedden for service connection. As to the last element of Shedden, for service connection the Veteran must show a causal relationship between the current disability and the in-service disease or injury. On the issue of nexus, there are no positive medical nexus opinions linking the Veteran’s claimed for condition to service. There is, however, a negative VA medical opinion stating it has been 33 years since the Veteran’s in-service motor vehicle accident that caused him a contusion and knee pain and that same contusion was not shown on the Veteran’s accompanying July 2014 VA in-person examination, and therefore his claimed for condition is less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or injury. See July 2014 VA medical opinion. Additionally, the VA examiner opined that the injury that the Veteran sustained in-service would not have caused his current claimed for condition nor was chondromalacia diagnosed in the Veteran’s STRs. Id. The Board acknowledges the lay testimony of record relating the Veteran’s claimed for left knee chondromalacia patella. See November 2019 Board hearing transcript. While the Veteran is competent to describe symptoms relating to his condition, such as knee pain, he is not competent to render a complex medical opinion regarding the etiology of his diagnosed left knee chondromalacia patella. As such, the question of etiology in this case may not be competently addressed by lay evidence. See Layno v. Brown, 6 Vet. App. 465, 469 - 470 (1994); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran’s VA treatment records reveal that he has a current diagnosis of chronic bilateral knee pain (knee arthralgia), and that he reports experiencing knee pain while in service, as well as ever since service, but there are no medical records indicating that he has a current diagnosis of an enumerated "chronic disease" listed under 38 C.F.R. § 3.309 (a). Therefore, as chronic bilateral knee pain (knee arthralgia) is not one of the chronic diseases listed under 38 C.F.R. § 3.309 (a), the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303 (b) do not apply for the Veteran’s claimed for condition. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). (Continued on the next page)   Ultimately the Board finds that the preponderance of the evidence does not show that the Veteran's currently diagnosed left knee condition is related to service, and therefore service connection for left knee chondromalacia patella cannot be granted on a direct basis. Accordingly, the Board finds that as the preponderance of the evidence weighs against service connection for a left knee condition, the Veteran’s claim must be denied. The benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, 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.