Citation Nr: 20007947 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 17-60 356 DATE: January 30, 2020 ORDER New and material evidence has been received, the claim for service connection for left knee osteoarthritis is reopened. Entitlement to service connection for left knee osteoarthritis is denied Entitlement to service connection for right knee osteoarthritis, to include as secondary to left knee osteoarthritis, is denied. FINDINGS OF FACT 1. In a May 2003 rating decision, the RO denied service connection for left knee osteoarthritis; the Veteran expressed timely disagreement; a statement of the case was issued in May 2004, but the Veteran did not perfect an appeal, and the decision is final. 2. Evidence received since May 2003 is new and material because it does relate to an unestablished fact necessary to substantiate a claim for entitlement to service connection for left knee osteoarthritis. 3. Left knee osteoarthritis did not manifest during active service or within one year of separation and was not caused by any aspect of service. Left knee osteoarthritis is not otherwise attributable to service. 4. Right knee osteoarthritis did not manifest during active service or within one year of separation and was not caused by any aspect of service. Left knee osteoarthritis is not otherwise attributable to service—to include being proximately caused by, or aggravated by, a service-connected disability. CONCLUSIONS OF LAW 1. The May 2003 rating decision that denied the claim for service connection for left knee osteoarthritis is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for left knee osteoarthritis. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for entitlement to service connection for left knee osteoarthritis have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). 4. The criteria for entitlement to service connection for right knee osteoarthritis have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3,310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Navy from July 1959 to December 1962. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the Veteran’s claims file. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7104(b). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence. relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be credible for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Left knee osteoarthritis In the May 2003 rating decision in which the RO denied service connection for left knee osteoarthritis, the RO considered evidence consisting of the Veteran’s service treatment records (STRs) (referenced as service medical records in the rating decision) and VA treatment records from several identified VA facilities. The RO indicated that the Veteran’s STRs were negative for treatment or diagnosis of either left knee osteoarthritis or any other left knee disability. Without an in-service predicate (incurrence or unresolved) injury, the RO could not draw a nexus between the Veteran’s current left knee osteoarthritis and active duty service. This, in turn, prevented establishing service connection. Since May 2003, VA has received relevant new evidence consisting of additional VA treatment records, lay accounts, a VA examination report, hearing testimony, and private medical records. When considering the minimal evidentiary threshold standards (under Shade), this competent medical and lay evidence is material to previously unestablished facts—possible in-service incurrence and thereby a nexus to active duty service. Hence, this body of evidence raises a reasonable possibility of substantiating the left knee osteoarthritis claim. See 38 C.F.R. § 3.156(a). Therefore, the evidence is new and material and the Veteran’s service connection claim for left knee disorder is reopened. Service Connection The Veteran submits that current left knee osteoarthritis was incurred in, or aggravated by, active duty service. The Veteran also contends that current right knee osteoarthritis was proximately caused by, or aggravated by, left knee osteoarthritis. Stated differently, the Veteran advances that left knee osteoarthritis caused “overcompensation” on the right knee which proximately caused right knee osteoarthritis. See December 4, 2019 Hearing Transcript, p. 7. (mis-identified in the claims file as “Correspondence”). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases—to include osteoarthritis—may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.§§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). All have a presumptive period of one year following separation from service. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310 (a)-(b). Analysis A review of the Veteran’s STRs is instructive in this case. In a February 12, 1962 STR, a clinician indicated that the Veteran slipped and twisted his left knee while playing basketball two days earlier. A physician diagnosed a sprained left knee. Treatment consisted of elevation, bedrest, Buccal Varidase, and whirlpool therapy. In a subsequent STR of February 19, 1962, this clinician reported that the Veteran’s left knee swelling had subsided, and left knee motion had returned—to such a level that he was discharged to full active duty aboard a submarine. Otherwise, STRs do not disclose complaints, treatment, and/or diagnosis of left knee osteoarthritis. Likewise, other STRs do not show reports of symptomatology indicative of any left knee injury or disability. In the Veteran’s December 10, 1962 Release from Active Duty (RAD) Report of Medical Examination, which bears the Veteran’s signature, a clinician indicated normal clinical evaluation of the Veteran’s lower extremities and other components of the Veteran’s musculoskeletal system. Taken as a totality, STRs disclose a left knee strain in February 1962 which had resolved 7 days later. As noted above, at the time of the Veteran’s separation from active duty service, the left knee (like all lower extremities) were clinically normal. In February 2004, VA received a packet of private medical records. In December 1987, a private physician noted the Veteran’s report of a left knee twisting injury some (illegible) years earlier and that he had reinjured the knee one year earlier again playing basketball. The physician indicated that the Veteran underwent an outpatient left knee arthroscopy, partial lateral meniscectomy, and partial synovectomy. The Veteran’s pre-procedure diagnosis was posterior horn lateral meniscal tear of the left knee. The same month the Veteran submitted a lengthy lay statement, styled as an “affidavit.” The Veteran conveyed that he injured his left knee in 1961. The Veteran noted that Navy doctors informed him that left knee surgery could be performed—with a “50/50” chance of success. The Veteran decided not to pursue this option in 1961. As there are no notations of this assessment for surgery and as it is inconsistent with the notations of the physician in the record, the Board finds that it warrants low probative weight. After discharge in December 1962, the Veteran wrote that he spent 25 to 30 years suffering from left knee discomfort. Until 1988, the Veteran claimed that he treated his left knee symptoms with over-the-counter (OTC) medication. The Veteran underwent a left knee procedure in 1988, claiming that this did not eradicate his left knee issues. The Veteran also advanced that a magnetic resonance imaging (MRI) study was performed in 2001, of which findings showed left knee damage. A review of VA treatment records reveals that the Veteran availed himself of VA clinical, imaging, educational, and consulting services from 2002 to 2019. These records reflect multiple complaints of knee pain. Clinicians monitored the course of the Veteran’s treatment and medication protocols to achieve maximum efficacy. In March 2011, x-ray imaging showed osteoarthritis of the bilateral knees. A clinician opined that the left knee was far worse than the right knee. The Veteran was also afforded subsequent x-ray imaging studies to assess the status of his current osteoarthritis of the bilateral knees. In April 2016, the Veteran was afforded a VA knee and lower leg conditions examination. A VA clinician reviewed the claims file; considered the Veteran’s lay accounts of his medical history; and conducted a clinical evaluation. The examiner indicated a current diagnosis of bilateral knee osteoarthritis. Upon consideration of the totality of totality of evidence, this examiner opined that the Veteran’s current left knee osteoarthritis is less likely as not related to the one acute and transient left knee episode, as reflected above, noted in active duty service. In short, the left knee strain had resolved in-service and there was no medical evidence to support the presence of lingering residuals. Herein, the medical evidence of record itself provided a rationale for lack of connexity. Further, according to the clinician, the Veteran’s right knee osteoarthritis is less likely than not related to active duty service. As a rationale for this negative nexus opinion, the clinician reported that there is nothing in the currently accepted, peer-reviewed, credible, and authoritative orthopedic literature that demonstrates that a degenerative condition of a knee, with or without surgical intervention and/or altered gait pattern will induce degenerative changes within the contralateral (here “right”) knee. Hence, the Veteran’s current right knee osteoarthritis is less likely than not secondary to left knee osteoarthritis. In a November 2017 lay statement, the Veteran reiterated that he damaged his left knee in active duty service. He also mentioned his various modalities of treatment and surgeries. At the December 2019 Board hearing, that Veteran testified that he was not afforded a separation examination when he left active duty service—or was “not aware of” such a separation examination. See December 4, 2019 Hearing Transcript, p. 4. (mis-identified in the claims file as “Correspondence). Otherwise, the Veteran reiterated his lay accounts and contentions, as reflected above. The Veteran also testified that he first experienced left knee swelling and sought treatment in about 1965 or 1966 and that his right knee symptoms started about 10 years ago. At the hearing, the Veteran introduced three pages of private medical records that have been associated with the claims file. In a December 2019 clinical note, Dr. V noted a normal gait pattern with no limp. In a December 2019 letter, Dr. V. wrote that upon review of the Veteran’s “service treatment” in February 12, 1962 and February 19, 1962, it is his “professional opinion” that the Veteran’s left knee injury more likely than not [marked] the beginning onset (sic) [of] the Veteran’s knees that have plagued the Veteran for years. According to Dr. V., the “old injury” resulted in arthritis that necessitated [a] knee replacement. Lastly, Dr. V. wrote the that the Veteran now has the same problem with his right knee—due to overcompensation from adjusting his gait. Here, the Board observes that Dr, V. did not mention clinical testing or x-ray imaging. Moreover, Dr. V. provided no rationale for either of the etiological conclusions reached. This letter fails to mention specific evidence and also fails to mention from whence such medical conclusions were reached. He did not discuss the records of an injury and surgery in 1987 and was inconsistent in his reporting of an abnormal gait. Other pages show treatment by at an orthopedic and sports medicine center. While there are findings as to the current status of the Veteran’s left and right knees, there is no guidance as to etiology. The Board recognizes the Veteran’s belief that the genesis of left knee osteoarthritis and subsequent right knee osteoarthritis occurred in active duty service. However, as a lay person, the Veteran lacks the competence to render complex medical diagnoses or etiologies. See Jandreau, Routen, both supra. Hence, the Veteran’s subjective belief does not constitute competent medical evidence. The Board finds that the Veteran’s lay evidence of an injury in service so severe as to warrant consideration for immediate surgery is not credible because it is inconsistent with the notations by the examining physician. The Board also finds that the Veteran’s report of continued knee discomfort and dysfunction since that time warrants low weight because no symptoms or disability was noted in the discharge examination and only a history of an old injury was noted in 1987. It would have been appropriate for the Veteran to inform his physician of the long history of adverse symptoms at that time and they are not consistent with his continued basketball participation. Turning to the medical evidence of record, the Board may favor the opinion of one competent medical examiner over that of another as long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert’s examination of the patient, the examiner’s knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 7 Vet. App. 467 (1993). Greater weight may be placed on one practitioner’s opinion over another depending on factors such as reasoning employed and whether or not and the extent to which they reviewed prior clinical records and evidence. See Gabrielson v. Brown, 7 Vet. App. 36 (1994). Furthermore, the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App, 140 (2003). The Board places diminished probative weight in Dr. V.’s December 2019 letter. As reflected above, Dr. V. provided no rationale for either of the etiological conclusions reached. Furthermore, Dr. V. wholly failed to even mention specific evidence and failed to mention from whence such medical conclusions were reached. Indeed, this letter warrants less probative weight compared to the April 2016 VA expert clinician’s opinion, in which the Board places substantial probative weight. This clinician reviewed the entirety of the record, including subjective contentions and objective findings. Moreover, this clinician provided rationales for his negative nexus opinions, steeped in evidence and a lack of findings in currently accepted, peer-reviewed, credible, and authoritative orthopedic literature. Without a nexus between a present disability and an in-service incurrence, the possibility of granting service connection on a direct basis is foreclosed. See Shedden, supra. As to service connection on a presumptive basis, the competent medical evidence of record fails to show that the Veteran was diagnosed with osteoarthritis of the knees, or a disease entity indicative of osteoarthritis of the knees, within one year of separation from service. See 38 U.S.C.§§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). Therefore, these provisions are not for application in this case. As the evidence of record fails to establish service connection for left knee osteoarthritis, as a matter of law service connection cannot be established on a secondary basis for right knee osteoarthritis. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The preponderance of the evidence is against the Veteran’s two service connection claims; there are no doubts to be resolved. See 38 U.S.C. § 5107(b); Gilbert, supra. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.