Citation Nr: 20021501 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 12-27 454 DATE: March 26, 2020 ORDER Entitlement to service connection for a left knee disorder, to include arthritis, is denied. FINDING OF FACT A left knee disability was not manifest during active service; any current left knee disability is not otherwise etiologically related to such service. Any arthritis was not shown during service or within 1 year following separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from July 1969 to July 1973. The Board previously remanded this case for additional development in September 2016. However, upon returning to the Board, it was determined that there was not substantial compliance with previous remand instructions, and the matter was again remanded to comply with the previous directives. The matter has now returned to the Board for appellate review. His representative has offered further contentions in advancement of the claim in February 2020. Entitlement to service connection for a left knee disorder, to include arthritis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran asserts service connection for a left knee disorder. Specifically, he contends that the left knee bursitis he had while on active service is the cause of his current left knee disorder. Service connection may be established on a direct basis for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, including arthritis, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period of time is usually one year. 38 C.F.R. § 3.307 (a)(3). 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. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). 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, 10 Vet. App. at 495-96; see Hickson 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). Turning to the record, the Veteran’s service treatment records (STRs) reveal that upon beginning active service, the Veteran did not have any complaints or identify any issues with respect to his left knee. While on active service in August 1969, he was seen and treated for a left knee issue. At the time, the examiner diagnosed the Veteran with left knee bursitis. At a follow-up visit a few days later, the examiner reported that the Veteran’s left knee was still tender, and the Veteran’s right knee was also slightly tender. The Veteran was treated with an injection. At his June 1973 separation examination, the Veteran did not report any complaints or issues with his left knee. Rather, the examiner documented that the Veteran had bursitis in his right knee associated with pain and swelling. Further, the examiner noted that the issue was treated with prescriptions and had good results, with no other complaints or other sequela. Private treatment records from 2007 reveal that the Veteran was diagnosed with left knee degenerative arthritis with synovitis. In December 2009, private diagnostic testing revealed moderate degenerative changes, moderate harrowing, medial compartment. In August 2010, the Veteran was afforded a VA examination to determine the nature and etiology of his left knee disorder. The examiner diagnosed the Veteran with degenerative joint disease of the left knee. The examiner opined that the Veteran’s left knee disorder is less likely as not caused by or a result of left knee bursitis during active service. Specifically, the examiner explained that the Veteran’s STRs show the Veteran was treated for bursitis of the left knee in August 1969. However, at the separation examination in June 1973, only right knee bursitis was mentioned, and it was noted to have no complication or sequala. According to the examiner, this indicates that left knee bursitis had resolved. Further, the examiner noted that private medical records from November 2007 mentioned that the Veteran had a history of left knee arthritis. However, the private medical records did not specify how long ago. Moreover, the examiner noted that the Veteran worked as a line man for Florida Power and Light (FPL) for more than 20 years. Therefore, the examiner concluded that the Veteran’s civilian occupation was more likely the cause of his degenerative joint disease rather than the bursitis he had more than 30 years ago. Pursuant to the Board’s September 2016 remand, the Veteran was afforded another VA examination in February 2017. The examiner diagnosed the Veteran with left knee strain and left knee degenerative arthritis. Diagnostic testing confirmed degenerative arthritis in the Veteran’s left knee. The examiner opined that the Veteran’s left knee disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran’s enlistment examination was normal, which indicated presumption of soundness. The Veteran’s STRs reveal that he was treated for knee left knee issues 8 days apart, which, according to the examiner, indicates the condition was acute and transitory. The Veteran reported that he learned to take care of the issue himself. He did not have any physical therapy while in service. He did not take any medication on a regular basis. He did not have any permanent profile while in the military. The Veteran’s separation examination was marked normal, and the Veteran marked no to trick or locked knee. The Veteran stated that he was in good health at the time of separation. However, there is a note that addressed the Veteran’s right knee, and not the left knee, and stated no complications or sequalae. Therefore, after a review of the medical records, and in consideration of acute and transitory in-service events, as well as normal pertinent subsequent separation clinical evaluation and history, the examiner determined that chronicity and continuity could not be demonstrated for the left knee; consequently, the examiner opined that a connection could not be established between the claimed left knee disorder and an in-service event. The Board finds that, while the Veteran has a current diagnosis of left knee degenerative arthritis and evidence shows that he was seen for left knee bursitis while on active service, the preponderance of the evidence weighs against finding that the current left knee degenerative arthritis began during service or is otherwise related to an in-service injury, event, or disease. Although the Veteran asserts that his left knee disorder is the result of the condition he suffered in his left knee while on active service, the VA examiner in February 2017 noted that the left knee bursitis treated in service was acute and transitory in nature. The Board acknowledges the Veteran’s lay statements regarding the nature and etiology of his left knee disorder. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, they are not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis or etiology alone cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board assigns a little probative value to these lay assertions of the etiology of his disability. The left knee disorder is first shown years after service, and there is no clinical evidence that it is the type that would be due to an episode of bursitis in service years earlier. Consequently, the Board gives more probative weight to the medical evidence, including the VA examination reports, which do not support a nexus to service. Notably, the findings of the VA examinations are uncontroverted by any evidence of record, apart from the Veteran’s own assertions. See Black v. Brown, 10 Vet. App. 279, 284 (1997) (providing that in determining the weight assigned to this evidence, the Board looks at factors such as the health care provider’s knowledge and skill in analyzing the medical data). Absent countervailing medical evidence, the Board itself is prohibited from exercising its own independent judgment in the Veteran’s favor. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not exercise its own independent judgment to resolve medical questions). Furthermore, as per the most recent May 2018 Board remand, in January 2019, VA sent the Veteran a letter asking him to provide VA with information that would help VA obtain pertinent medical records in order to assist the Veteran in developing his claim further. To date, no response to this request has been received. Therefore, the Board must conclude that the evidence of record preponderates against finding that the Veteran’s left knee disorder manifested in service or within one year to a degree of 10 percent or more after 1973, and thus, the requirement under 38 C.F.R. § 3.3.07 (a) has not been met. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply and the benefit sought on appeal is accordingly denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.