Citation Nr: 20021210 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-63 398 DATE: March 25, 2020 ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. FINDING OF FACT The Veteran’s current bilateral knee condition was not incurred in, and is not otherwise related to, her active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 5103; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 5103; 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 from November 2001 to April 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In this regard, the Board notes that the Veteran’s Notice of Disagreement was filed after an August 2014 rating decision; and the April 2017 Statement of the Case identifies the claims as in need of new and material evidence. However, review of the record reveals that the Veteran’s initial (March 2005) claim for service connection was impacted by Hurricane Katrina, which disrupted the processing of the Veteran’s claims continued through the February 2007 readjudication of the claim. That is, the Veteran apparently did not receive those documents. See February 2007 returned mail. The Board accordingly finds that given due process considerations and the Veteran’s continuous pursuit of her claim, the determination did not become final and new and material evidence is not needed to address the claims de novo. Additionally, in the Veteran’s November 2017 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge by live videoconference. However, in May 2019, the Veteran’s attorney withdrew the request for a hearing. Therefore, the Veteran’s request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(e). The Board remanded the claims on appeal in June 2019 for additional development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Entitlement to service connection for a bilateral knee disorder. The Veteran contends that her current bilateral knee disorder is related to her active military service. Specifically, she contends it is related to being in a cell during S.E.R.E. school during which she bent her knees for prolonged periods. See March 2014 Notice of Disagreement. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include arthritis, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Turning to the evidence of record, the Veteran has a current diagnosis of arthritis in her left and right knee. See January 2020 VA examination. Accordingly, the first element of service connection, a current disability, has been established. As noted above, the Veteran contends that her knee pain began in service after being in a cell during S.E.R.E. school, which her service treatment records (STRs) confirm. Her STRs show multiple complaints of knee pain. An October 2002 STR shows a complaint of bilateral knee pain from S.E.R.E. school when she was in a cage. Bilateral patellofemoral pain syndrome (PFPS) was diagnosed. A December 2002 STRs shows complaint of bilateral kneecap soreness with pain with stairs and squatting. Recurrent PFPS was noted. A February 2003 STR shows complaints of muscle and joint pains with body aches. On her February 2003 Report of Medical History at separation, the Veteran reported “yes” to knee trouble. She noted “runners knee – still hurts.” A February 2003 STR shows a complaint of bilateral knee pain. An x-ray showed no abnormalities of the bilateral knees. An undated STR notes “arthralgias – multiple joints.” In light of the foregoing, the second element of service connection, an in-service event, also has been established. Turning to the third element, a causal nexus, the Board finds that this element has not been established. Post-service treatment records show complaints of knee pain immediately following discharge from service and a diagnosis of arthritis as early as 2007. See September 2007 VA treatment record. The Veteran has indicated that she has had knee pain since her military service, specifically since S.E.R.E. school. See February 2015 Notice of Disagreement. The Veteran underwent a VA examination in August 2014 at which time the examiner provided a negative nexus opinion. However, in its June 2019 remand, the Board found the opinion inadequate. Pursuant to the June 2019 Board remand, the Veteran underwent another VA examination in January 2020. After reviewing all of the relevant STRs documenting the Veteran’s symptoms and complaints in service, as well as relevant post-service treatment records, the examiner opined that the Veteran’s current bilateral knee disorder was less likely than not caused by, a result of, or incurred in service. The examiner explained what PFPS is and noted that it is characterized by pain around or behind the patella that is aggravated by one or more activities that involve loading the patellofemoral joint under weight-bearing on a flexed knee, and that it cannot be attributed to another discreate intra-articular or peripatellar pathology. He further explained that the Veteran’s current symptomatology is consistent with intraarticular pathology (arthritis) and unrelated to the in-service bilateral PFPS. He noted that the current symptomatology in the presence of intraarticular pathology is not PFPS. He also explained that pain may represent a variety of conditions, and the causes of pain can be multiple or multi-factorial. He noted that pain is not a reliable diagnostic or prognostic indicator, and that knee pain simply does not provide a diagnosis, etiology, or nexus. The Board notes that the examiner’s opinion initially indicates that the reasoning for his opinion is because the Veteran’s STRs are silent for arthritis manifesting within a year of separation from service. However, after reading his complete rationale, it is clear that the examiner did not base his opinion solely on the absence of a diagnosis of arthritis within a year of service separation. Moreover, the Board notes that in his rationale, the examiner stated, “[b]ack pain simply does not provide a diagnosis, etiology, or nexus.” When reading his rationale as a whole, the Board finds that the examiner’s use of “back pain” appears to be a typographical error and that he meant to use “knee pain.” The Board finds the January 2020 opinion, supported by a rationale based on an accurate medical history with clear conclusions and supporting data, is highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that the June 2019 Board remand directives requested that x-rays be completed as part of the examination, and a review of the examination report shows that such x-rays were not conducted. However, the examiner explained that such x-rays were not necessary because prior imaging studies were adequate and showed arthritis of both knees. As the examiner found x-rays to be unnecessary and explained why, the Board finds that the failure to obtain them is harmless error and does not constitute a violation of the ruling in Stegall. While the Veteran believes her current bilateral knee arthritis is related to an in-service injury, event, or disease, including her knee pain and PFPS in service, she is not competent to provide a nexus opinion in this case. This issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In addition to direct service connection, the Board has considered whether service connection is warranted on a presumptive basis for chronic diseases. There is no competent evidence showing arthritis manifested to a compensable degree within one year of separation from service. The evidence also does not reflect, nor does the Veteran contend, that a diagnosis of arthritis of the bilateral knees was provided within a year of service discharge in April 2003. Thus, the one-year presumption for arthritis under 38 C.F.R. §§ 3.307 and 3.309(a) is not an avenue for service connection. The Board also has considered whether service connection is warranted based on a continuity of symptomatology framework. 38 C.F.R. § 3.303(b). However, arthritis was not noted in service, and there is insufficient evidence to identify or establish arthritis as a disease entity therein. Specifically, x-rays conducted at service separation did not show any arthritis or abnormalities of the knees. While an undated STR notes arthralgias of multiple joints, “arthralgia” is merely a diagnosis of pain, not arthritis. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 150 (32d ed. 2012) (defining “arthralgia” as simply “pain in a joint”). Further, to the extent the Veteran’s lay assertion of continued symptomatology is intended to establish a link to service, it is outweighed by the January 2020 VA medical opinion which found that the Veteran’s arthritis was not incurred in or caused by her active service. Therefore, service connection is not warranted pursuant to the provisions of 38 C.F.R. § 3.303(b) pertaining to chronicity and continuity of symptomatology. In sum, the evidence of record shows that the Veteran’s knee pain in service was due to PFPS, and the most competent and probative evidence of record shows that the in-service PFPS is not related to her current arthritis. As such, service connection for left and right knee disorders is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.