Citation Nr: 20021081 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 16-49 866 DATE: March 24, 2020 ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. REMANDED Entitlement to service connection for a back disorder is remanded. FINDINGS OF FACT 1. A right knee disorder was not manifest during service or ACDUTRA and arthritis was not manifest within one year of separation from active service. A right knee disorder is unrelated to service and ACDUTRA. 2. A left knee disorder was not manifest during service or ACDUTRA and arthritis was not manifest within one year of separation from active service. A left knee disorder is unrelated to service and ACDUTRA. CONCLUSIONS OF LAW 1. A right knee disorder was not incurred in or aggravated by active service or ACDUTRA, and arthritis may not be presumed to have been incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. A left knee disorder was not incurred in or aggravated by active service or ACDUTRA, and arthritis may not be presumed to have been incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to May 1991, with additional service in the reserves with periods of active duty for training (ACDUTRA). The Board remanded these issues in November 2018 for evidentiary development. Service Connection 1. Entitlement to service connection for a right knee disorder 2. Entitlement to service connection for a left knee disorder Veterans are entitled to compensation if they develop disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(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 -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Relevant to the Veteran’s appeal, arthritis is identified as a “chronic disease” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). “For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.” 38 C.F.R. § 3.303 (b). In the context of Reserve or National Guard service, the term “active military, naval, or air service” includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (21), (24); see also 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C. §§ 101 (24), 106, 1110, 1131. In other words, when a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled (or died) as a result of a disease or injury incurred or aggravated in the line of duty on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service. Claims based on a period of ACDUTRA or INACDUTRA are not entitled to the presumptions outlined in 38 C.F.R. § 3.307 and § 3.309. Smith v. Shinseki, 24 Vet. App. 40 (2010). The Veteran contends that his knee disorders are directly related to his service, specifically the wear and tear of training. He asserts that he experienced knee pain during service but was “encouraged to evaluate what was pain and what was injury” or to “suck it up.” He has submitted statements from fellow servicemembers to support his assertion that he has experienced knee pain since his active service and periods of ACDUTRA. Service treatment records do not document any relevant complaints, symptoms, treatment, diagnoses, or other notations. Clinical evaluation at the April 1991 separation examination and a January 1992 reserve examination found normal lower extremities and musculoskeletal system. In the accompanying Reports of Medical History, the Veteran specifically denied “trick” or locked knee, or any other potentially relevant symptoms. The Veteran submitted a September 2015 private knee DBQ. The physician provided diagnoses of left knee meniscal tear, bilateral knee osteoarthritis, bilateral instability, bilateral patellofemoral pain syndrome, and left knee trochlear and medial femoral condyle. In a contemporaneous opinion, the examiner opined that the Veteran’s right knee arthritis is as likely as not related to active duty, as the Veteran’s MOS as a truck driver “could lead to increased wear on the patella-femoral joint.” In a February 2016 statement, the same examiner opined that the Veteran’s chondromalacia was as likely as not “significantly related to his prolonged military service. His history of pain and complaints in both knees is consistent with his history and his surgical findings have supported this motion as well.” In an August 2016 VA medical opinion, the examiner opined that the Veteran’s bilateral knee disorders were less likely than not related to his active duty service or ACDUTRA, even when considering the potential impact of his MOS as a truck driver. The examiner cites the service treatment records, including the clinical evaluations which found normal lower extremities and musculoskeletal system and the Veteran’s own specific denials of relevant symptoms. The examiner addresses the private medical opinions and indicates that they cannot be explained without speculation in the face of objective clinical evaluations during service and the reserves that were normal. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the August 2016 VA examiner’s opinion that the Veteran’s bilateral knee disorders are less likely than not related to his service as highly probative medical evidence on this point. The Board notes that the examiner rendered her opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board may favor the opinion of one competent medical professional over that of another so 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 personal 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, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician’s opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the Board finds the private medical opinions to be of minimal probative value. Both opinions are speculative and rely upon the Veteran’s reported date of onset of knee pain, reports which are directly contradicted by clinical evaluations and his own specific denials upon separation and during his time in the reserves. They do not address relevant medical records, specifically the service treatment records which directly contradict the Veteran’s assertions. The examiner provides no supporting rationale other than truck driving may place stress on the right patella-femoral joint Rather, the opinions seem to be primarily a restatement of the Veteran’s own lay statements that his knee pain began in service, despite conflicting contemporaneous medical evidence. In this instance, the Board finds the August 2016 VA medical opinion to be the most probative as it provided an unequivocal and detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran’s claims file, when concluding that the Veteran’s bilateral knee disorders were not related to his service. The examiner cites critical contemporaneous medical evidence, specifically the in-service examinations and Reports of Medical History, which contradict the Veteran’s assertion that his knee pain began in service. The Board has also considered the lay statements of record, to include the Veteran’s previously referenced assertions. With respect to the Veteran’s report that he has experienced a continuity of symptoms since service, he is competent to report his observations and relate what he was told by medical professionals. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Of note, the Veteran has not indicated that a medical professional provided him with a relevant diagnosis during service or immediately thereafter. The Veteran’s lay evidence of onset and continuity is far less probative and less credible than the opinion of the VA professional, as the VA medical opinion is far more detailed and reasoned; thus warranting a greater probative value. The Board finds that the probative value of the general lay assertions is outweighed by the clinical evidence of record. Physical examination upon separation from service and during his time in the Reserves revealed normal lower extremities and musculoskeletal system, and the Veteran specifically denied any relevant symptoms. There is no reliable evidence linking the Veteran’s knee disorders to service. The contemporaneous records establish that there were no documented manifestations of a chronic knee disorder in service, the knees were physically normal upon separation, there were no manifestations of arthritis within one year of separation, and arthritis was first manifest many years after separation. The Board finds the contemporaneous records to be far more probative and credible than the Veteran’s report of onset, continuity, and treatment. Here, chronic disease (arthritis) of the knees was not “noted” during service or within one year of separation within the meaning of section 3.303(b). While the Board notes the Veteran’s reported history of in-service events, it finds that the service treatment records do not show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Rather, despite the Veteran’s reports of knee pain in service, the knees were normal at separation. Furthermore, the evidence does not establish that arthritis of the knees was manifest to a compensable degree within one year of separation. 38 C.F.R. §§ 3.307; 3.309. We find his assertion and the lay evidence of onset and continuity to be not credible and inconsistent with the normal service examinations and his denial of pertinent symptoms at that time. To the extent that there is a positive medical opinion, such is based upon an inaccurate factual basis and is equally inadequate and not credible. The Board has considered his report that he sucked it up during service. Such statement would not explain why service examinations of the lower extremities were normal on evaluation and his specific denial of such symptoms when provided an opportunity prior to separation. We find the assertion of in-service problems to be less credible than the examinations and his specific denials. The evidence of record shows that arthritis was manifest many years after service. The Veteran was not shown to have arthritis, or any relevant chronic knee disorder in service, and did not have characteristic manifestations of such a disorder until multiple years after discharge. In summary, the evidence establishes that the knees were normal upon separation from service and the onset of arthritis occurred many years after service. The Board finds that the contemporaneous in-service and post-service treatment records are entitled to greater probative weight and credibility than the lay statements of the Veteran. The Board also finds the VA examiner’s opinion to be of significant probative value. The more probative evidence establishes that he did not have a chronic knee disorder during service or within one year of separation. Furthermore, the evidence establishes that the remote onset of knee disorders is unrelated to service. The Board finds that the preponderance of the evidence is against the claims and the claims must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a back disorder is remanded. In its November 2018 Remand directives, the Board instructed the RO to schedule the Veteran for a VA examination to determine the etiology of his claimed low back disorder “if and only if” the relevant VA or private treatment records showed relevant complaints of a low back disability. VA treatment records obtained pursuant to the Remand show complaints of low back pain and assessments of degenerative arthritis of the lumbosacral spine. The Veteran was not scheduled for an examination and an opinion was not obtained. Remand is necessary in order to comply with previously issued Board directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where remand order of the Board are not followed, the Board errs as a matter of law when failing to ensure compliance). The matters are REMANDED for the following action: 1. Return the claims file to an examiner of appropriate expertise to determine the etiology of the claimed low back disability. It is up to the discretion of the examiner if an examination is necessary, or in the alternative, a medical opinion is sufficient. Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any diagnosed back disability began during or is otherwise etiologically related to the Veteran’s active service or a period of ACDUTRA. The examiner is advised that the Veteran is competent to report symptoms, treatment, events, and injuries in service and that his assertions must be taken into account, along with the other evidence of record, in formulating the requested medical opinion. A complete rationale should accompany each opinion provided and should be based on examination findings, historical records, and medical principles. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens, 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.