Citation Nr: 20022050 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 19-34 876 DATE: March 30, 2020 ORDER Entitlement to service connection for bilateral (left and right) knee disability, to include as secondary to service-connected disability, is denied. FINDING OF FACT 1. The most probative evidence of record is against a finding of a knee injury with chronic symptoms in service. 2. The clinical evidence of a post-service knee disability is not for more than two decades after separation from service. 3. The most probative evidence of record is against finding that the Veteran has a knee disability involving either knee that was caused or worsened by his service and/or a service-connected disability. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for bilateral knee disability, either as directly or presumptively incurred or aggravated in service or as secondary to a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION In general, establishing direct service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a nexus between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain diseases like arthritis, since chronic, per se, also may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year after separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.310, service connection may be granted as well on a secondary basis for disability that is proximately due to or the result of a service-connected disease or injury or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Entitlement to service connection for bilateral knee disability The Veteran already has established service connection for degenerative arthritis of his spine and for associated neuropathy of his lower extremities (left and right). In August 2018, however, the RO found clear and unmistakable error (CUE) in the rating decision granting service connection for these other disabilities, therefore, proposed severance of service connection. But in rendering its decision below, the Board is recognizing that the severance action has not actually occurred, at least not just yet (only, instead, being contemplated), so is treating the back and bilateral lower extremity neuropathy as service-connected disabilities, still.   The Board also acknowledges the Veteran has contended that his examinations for his additionally claimed knee disabilities were inadequate. The Board finds, however, that they were not. The Board sees the two VA examinations were by two different clinicians, that the first clinician found no functional impairment, and that the second clinician (who examined the knees and back) found that the Veteran was “severely histrionic”, made “minimal effort during range of motion testing”, and that additional VA examinations “are not likely to result in any additional information”. Importantly, the issue on appeal is entitlement to service connection, and not entitlement to a higher rating. Thus, the central focus is on a nexus opinion and not on a level of severity. The VA nexus opinions were based on a review of the pertinent evidence and provide probative rationale. Thus, VA has fulfilled its duty to assist the Veteran with his knee claim. Turning now to the relevant evidence, the Veteran’ service treatment records (STRs) are unremarkable for complaints referable to his knees. His July 1977 Report of Medical History for separation purposes reflects that he specifically denied having lameness, bone, joint or other deformity, arthritis, rheumatism, bursitis, and a trick or locked knee. Moreover, his corresponding July 1977 Report of Medical Examination reflects that his lower extremities were normal upon examination. He separated from service in September 1977. Post service, the Veteran was employed for the U.S. Postal Service with duties as a supply clerk. He was also active in playing racquetball and softball. The earliest complaint referable to the knees is not until more than two decades after the Veteran’s separation from service. That long a lapse of time between his separation from service and the earliest documentation of the now claimed disability is a factor for consideration in deciding this service-connection claim and tends to refute any notion that his claimed bilateral knee disability was directly incurred during his service or that he has any arthritis in his knees that may be presumed to have been incurred during his service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).   A February 2003 record reflects that the Veteran sought treatment for complaints that included knee pain. Notably, however, he indicated he was a racquetball player and had “started feeling pain discomfort after playing for about a month”. He said that most of the pain was under his kneecap. There was no locking of the knee, swelling, or discoloration. The diagnosis was patellar femoral syndrome. He was also medically encouraged to play less racquetball and, instead, do more stationary biking, swimming, or walking. A June 2011 private record (GroupHealth/Dr. Donion) shows the Veteran had right knee complaints and had been last seen in 2010 for this knee. It was noted, by way of history, that he plays “racquetball and softball regularly”, had had an arthroscopy of the right knee in November 2009 when it was found that he had some unstable tearing involving the posterior horn and body of the medial meniscus with a fairly large unstable flap of the posterior horn, and extensive bucket-handle tear of the lateral meniscus involving the entire body and into the anterior horn and extending into the posterior horn as well. He was also found to have “just mild degenerative changes”. It was noted that he was then currently playing softball, including a double header every Wednesday night, that he had played five games of racquetball approximately two months earlier, and that his knee “is good for about three games” but pretty sore after five games. Radiographs revealed a progression of arthritis since February 2009. The report is unremarkable for any indication of pain since service or due to, or aggravated by, the service-connected back disability and associated lower extremity neuropathy. A May 2017 VA record indicates the Veteran reported an insidious onset of knee pain in December or January. He reported having had some issues with his knees over the years, but nothing as significant or peristent as the more recent pain. The claims file also includes August 2017 correspondence from Dr. E. F. (Lotus Integrated Health) surmising that, from “reviewing [the Veteran’s] military medical history and his current medical records, I believe that his lower back pain and sciatica is a direct result of his bilateral knee pain.” She also stated that he reported that his “pain started in the military” and that her review of his military medical records notes chronic pain extending to his service.   Initially, in response to this doctor’s statement, it must be pointed out that secondary service connection requires that the service-connected disability(ies) cause or aggravate the condition being additionally claimed. Dr. E. F.’s statement posits the opposite of this correlation since, in effect, she attributed the Veteran’s lower back pain and sciatica to his bilateral knee pain. But, for secondary service connection, the converse must be true (vice versa); that is, the lower back pain and sciatic instead must be causing or aggravating the bilateral knee pain. The Board also disagrees with Dr. E. F.’s findings with regard to knee pain dating purportedly back to the Veteran’s service. His STRs are entirely unremarkable for any complaints referable to his knees, including of pain, much less chronic or persistent or recurring pain. Moreover, the post-service records are similarly unremarkable for knee-related complaints in the two decades after separation from service. Finally, Dr. F. stated that the Veteran’s bilateral knee pain causes his lower back pain and sciatica due to difficulty with walking. However, even setting aside as mentioned that the converse must be true, she failed to adequately explain this relationship as other records show instead the Veteran had back pain (including owing to a workers’ compensation lifting injury) prior to his knee complaints. In sum, the Board finds that Dr. E. F.’s opinion, which is not supported by an accurate (credible) history of knee complaints in service, even for many years after, or prior to back complaints, resultantly lacks probative value. An October 2017 VA examination report points out the Veteran cited the onset of his knee pain in approximately 2002. This VA examiner found that the Veteran’s level of osteoarthritis (OA) was expected for someone of his age, obesity, and activity (playing pickleball, racquetball, softball, and bowling). This examiner concluded it is less likely than not the Veteran’s knee disabilities are due to his service. Rather, the examiner surmised that, taking all the facts into consideration, the Veteran’s OA is due to normal aging and physical activity. The examiner further found no objective evidence to support a finding that the Veteran’s lower back disability caused his knee OA, also explaining there is no peer reviewed medical literature with known causative nexus between having a back condition that would cause knees progressive OA. The examiner indicated it is “very clear” that the Veteran’s obesity, age, and exercises over the years cause his knees progressive OA/wear and tear. With regard to possible aggravation, the Board notes that this examiner’s opinion, which notes that the level of severity is clearly consistent with age, obesity, and recreational activities, also makes it clear that the Veteran’s bilateral knee disability is not aggravated by a service-connected disability since the cause and the level were found due to nonservice-related factors. This VA examiner’s opinion is also supported by the several records noting the Veteran played racquetball and softball (and basketball on one occasion), and that he was overweight/obese (see, e.g., his weights in November 2015, December 2017, and February 2018 VA clinical records). A May 2018 VA examination report (from Dr. C.W.) similarly concludes that it is less likely as not that the Veteran’s knee OA is secondary to his service-connected back disability and is less likely as not that his knee pain is secondary to his service-connected back disability. This additional opinion was based on the weight of medical literature holding that degenerative arthritis of the spine does not cause OA in other joints. The examiner also determined that, although the Veteran subjectively endorsed functional limitations, the examiner did not find significant functional impairment. Rather, the examiner found that the Veteran had “very poor effort during range of motion testing”. The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origin of his claimed knee disabilities, either in terms of whether directly, presumptively or even secondarily the result of his service or service-connected disability. Although laymen are competent to provide opinions on some medical issues, a layman is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding regarding the complexities of arthritis, secondary conditions, age, obesity, and use (wear and tear on joints). These determinations are beyond the Veteran’s lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, the VA clinical opinions by trained medical professionals who reviewed the pertinent evidence are more probative than mere lay opinion on this determinative issue of causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). That aside, any opinion based on an allegation of continuity of symptoms since service, or without review of the pertinent evidence and/or without an adequate rationale, lacks probative value. For these reasons and bases, the preponderance of the evidence is against the claim, so the benefit of the doubt rule is inapplicable, and the claim consequently must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.