Citation Nr: 20026044 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 14-44 347 DATE: April 15, 2020 ORDER Service connection for a right knee disorder is denied. Service connection for a left knee disorder, including secondary to a right knee disorder, is denied. FINDINGS OF FACT 1. The Veteran’s right knee disorder, knee joint osteoarthritis, did not clearly and unmistakably pre-exist any period of service, did not manifest to a compensable degree within one year of separation from any period of service, and is not otherwise shown to be related to service. 2. The Veteran’s left knee disorder, knee joint osteoarthritis, was not manifest in service nor did it manifest to a compensable degree within one year of separation from any period of service. The disability is not otherwise related to service and is unrelated (caused or aggravated) to service-connected disease or injury. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee disorder are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for left knee disorder are not met, to include as secondary to service-connected disease or injury. 38 U.S.C. §§ 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 CONCLUSIONS The Veteran, who served on active duty from November 1980 to May 1984, appeals an August 2013 rating decision. He testified before the undersigned Veterans Law Judge at a March 2017 hearing. At the hearing, the VLJ clarified the issues on appeal; clarified the concept of service connection; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran’s claims and inquired as to the existence of potential outstanding records. The actions of the VLJ comply with 38 C.F.R. § 3.103. The Board remanded the matters in April 2018 to the Agency of Original Jurisdiction (AOJ). The appeal has been returned to the Board. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110, 1131. In general, to establish a right to compensation for a present disability, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection is also warranted for a disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment. See 38 U.S.C. §§ 1111, 1137, 38 C.F.R. § 3.304 (b). This concept is often referenced as the presumption of soundness. Only those conditions recorded in examination reports can be considered as "noted," 38 C.F.R. § 3.304 (b), and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304 (b)(1). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3 03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service the second step necessary to rebut the presumption of soundness a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C. § 1153. If the presumption of sound condition is not rebutted, "the veteran's claim is one for service connection." Wagner, 370 F.3d at 1096. That is to say, no deduction will be made for the degree of disability existing at the time of the veteran's entry into service. Id.; 38 C.F.R. § 3.322 The Veteran urges that his current bilateral knee disability, bilateral knee arthritis (with right knee status post total knee arthroplasty in 2016) first diagnosed in 2013, is related to service that ended in 1984. He testified that he had right knee problems prior to his naval service, as a teenager, and these worsened in service due to the rigors of being on a ship in cold weather and enduring tight spaces as a tall man of 6’5”. He also believes his left knee disability began as a result of those conditions in service, or as a result of the right knee condition. He clarified at the hearing that the alleged pre-existing knee disorder was a right knee disorder. While service treatment records do not document any relevant notations, to include complaints or findings, the Veteran reported that he did not know if he experienced a “trick” or locked knee during his service separation questionnaire in May 1984. At that time, his examination at separation was negative as to the lower extremities and he did not actually articulate having any knee problems, only that he did not know if he had or ever had a “trick” or locked knee. The Veteran also testified at RO hearings in 2014 and 2016, and at the Board hearing in 2017, that he experienced bilateral knee pain during service and that it has continued since service. Accordingly, the Board ordered examination be conducted on remand. 1. Right knee The question for the Board is whether the current right knee disorder pre-existed service and, if so, was aggravated therein, or manifested in service or within the applicable presumptive period, or whether any such condition is otherwise related to service. For the following reasons, the preponderance of the evidence is against the claim under all of these theories. First, the Board finds that the right knee disorder did not pre-exist service did not manifest during service and was not aggravated by service. The VA examining physician who examined the Veteran in November 2018 pursuant to the Board remand made the medical opinion that it is less likely than not that the Veteran had any right knee disorder that clearly and unmistakably (obviously or manifestly) existed prior to the Veteran's period of active service. The rationale was that the Veteran checked “no” on 1980 enlistment examination as to arthritis, rheumatism, or bursitis; also "no" to “‘trick' or locked knee”. The entrance examination notes normal lower extremity examination. The VA examiner found no other mention in STR of any knee condition prior to the Veteran's period of active service. While the Veteran told the VA examiner that he told the recruiter that he had "water on the knee" drained prior to entry, there is no mention of such an event on his exam form and the examination of the right knee was normal on entry. The absence of any such information meant to the examiner that criteria for "clear and unmistakable" are not met. The 2018 VA physician’s opinion is well-supported and thoroughly explained, to include with reference to the potentially conflicting evidence. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert’s opinion for its reasons and bases where the expert has fairly considered the material evidence of record). It considered the entire record, to include (a) the 2017 opinion of the non-VA chiropractor indicating knee pain began on the USS Spruance and (b) the 2016 record from the non-VA osteopath listing a personal reported history of 30 years of knee pain. Parenthetically, the Board notes that the chiropractor’s opinion was not based on a review of the STRs or VA records, only civilian records, and the osteopath’s recording of the reported history from the Veteran is not an actual medical opinion. The lay statements of the Veteran and his mother made in connection with the claim pale in comparison to the well-supported negative VA medical opinion on the issue of pre-existence. The Board adopts the negative 2018 VA opinion on this point. Second, arthritis of the knees is a chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a), but it did not manifest in service or within a presumptive period, and continuity of symptomatology is not established. Rather, the separation examination in May 1984 reflects negative findings, no lower extremity abnormalities and no complaints save for the answer that he did not know if he had or ever had a trick or locked knee. There were no documented complaints for the knees for the years following service prior 2013. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Here, knee pathology was not “noted” during service and he did not have characteristic manifestations of the disease process during service or within one year of separation. The Board does not find the isolated response that he did not know if he had trick or locked knee in 1984 to establish such pathology in view of the overwhelmingly negative record. The recent lay assertions of knee pathology in service are outweighed by the negative medical record prior to 2013. The Veteran is competent to report having experienced certain symptoms. However, his assertions that he had knee symptoms since service that ended in 1984, initially documented from 2013, are not credible. The assertions are contrary to the lack of complaints and treatment during the intervening period. Here, the March 2013 treatment record for knee pain at VA is the initial documentation of treatment for either knee. While the Veteran reported a history of knee pain at that time, there is no actual treatment prior to 2013, STRs were negative as to knee findings and his 1984 separation examination was normal as to the lower extremities. The opinion of the VA examiner in 2018 was that there was no chronic knee disorder for years following service separation. He explained that, on the basis of STR as well as multiple subsequent documents, the Veteran’s pain started in the early to mid-1990s, well after separation from military service. There is no evidence that meets probative VA criteria that he had a right knee condition during military service or within a year after separation. The testimony and lay statements to the effect that the knees were problematic since service and he had no insurance does not adequately explain why he knee problems were not documented in service if indeed he was having them at any time prior to 2013. To the extent that the non-VA medical records discussed above suggest any continuity, they are based on the Veteran’s reported history and are not persuasive on this matter. Third, the preponderance of the evidence is against finding that a nexus exists between the Veteran’s right knee disorder and service. 38 U.S.C. § 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Again, the documented knee arthritis began years after service and the weight of the competent evidence preponderates against the claim. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Here, the VA physician who examined the Veteran in November 2018 pursuant to the Board remand found it less likely than not that any diagnosed right knee disorder is causally or etiologically related to the Veteran's period of active service. The rationale was that there was no record that the Veteran was seen for a right knee condition in service. It was explained by the examiner that this does not appear to simply be a matter of stoicism since STRs show that Veteran was seen for other conditions such as pseudofolliculitis barbae and a transient left shoulder wrestling injury. The Veteran checked "don't know" to "'trick' or locked knee" on Separation SF 93 10 May 84. However, although there are multiple other comments on the SF 93 by the in-service examiner, there was no mention of a knee condition. The accompanying SF 88 notes normal examination of the lower extremities. Thus, at separation, the VA examiner finds no evidence meeting VA criteria of 50% or greater probability to indicate the presence of a knee condition. Furthermore, although Veteran states at the 2018 exam that he was seen for a knee condition beginning soon after separation, he indicated on multiple documents in the claims file that his right knee pain started in the period well after separation. The VA examiner cites to the September 2012 VA claim form indicating knee disability began in June 1994, a treatment note in April 2013 reporting knee pain "for several years", a September 2016 office visit note noting a history of 20 years of right knee pain and Social Security records with the self-report that "my pain began around 1990". Thus, on the basis of STRs as well as multiple subsequent documents, the Veteran's pain started in the early to mid-1990s, well after separation from military service. There is no evidence that meets probative VA criteria that he had a right knee condition during military service or within a year after separation. The Board accords substantial probative weight to the competent medical evidence, the 2018 medical opinion and the treatment record, which establishes that right knee disorder first manifested years after service, and not during service or during any presumptive period. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). The 2018 medical opinion is of greater probative value than the aforementioned non-VA opinion evidence for the same reasons previously articulated. Namely, the VA opinion is well-supported and thoroughly explained, to include with reference to the potentially conflicting evidence. Moreover, the chiropractor’s opinion was not based on a review of the record and does not address the negative findings prior to 2013, which makes the opinion of less probative value. While the Veteran has reported that he had some knee treatment in the intervening period between service and 2013, all available attempts to obtain the records have yielded no results. We find his statement about treatment to be not credible. As to etiology, the Veteran’s opinion is not entitled to probative weight. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). He lacks the requisite expertise to opine as to the etiology of current knee disorder. Id. The preponderance of the competent evidence is against finding that a current right knee disorder is otherwise related to service. The multi-year gap between discharge from active duty service and evidence of the condition decades later is viewed as a factor weighing against this claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The weight of the evidence is against concluding that any such disease was incurred in service. 38 C.F.R. § 3.303 (d). The preponderance of the evidence is against the claim on a direct and presumptive basis, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Left knee The question for the Board is whether the current left knee disorder manifested in service or within the applicable presumptive period, or whether any such condition is otherwise related to service or due to or aggravated by service-connected disease or injury. For the following reasons, the preponderance of the evidence is against the claim under all of these theories. Again, arthritis of the knees is a chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a), but it did not manifest in service or within a presumptive period, and continuity of symptomatology is not established as explained in the right knee discussion. Again, knee pathology was not “noted” during service and he did not have characteristic manifestations of the disease process during service or within one year of separation. Again, the isolated response that he did not know if he had trick or locked knee does not establish such pathology in view of the overwhelmingly negative record. The recent lay assertions of knee pathology in service are outweighed by the negative medical record prior to 2013. Again, the Veteran is competent to report having experienced certain symptoms but his assertions that he had knee symptoms since service that ended in 1984, initially documented from 2013, are not credible for the aforementioned reasons. Moreover, the preponderance of the evidence is also against finding that a nexus exists between the Veteran’s left knee disorder documented in 2013 and service ending in 1984. 38 U.S.C. § 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Here, the VA examining physician who examined the Veteran in November 2018 pursuant to the Board remand stated it was his medical opinion based on review of c-file, treatment records and examination of Veteran that it is less likely than not that any diagnosed left knee disorder is causally or etiologically related to the Veteran's periods of active service. The rationale was that, on careful review of STR, including items referenced with regard to any right knee condition, he found no mention that Veteran was ever seen for a left knee condition during service or that a left knee condition was identified at separation. He found no evidence in c-file that Veteran was seen within a year of separation for a left knee condition. The first documentation of left knee pain is on a VA orthopedic consult in April 2013, almost 20 years after separation. Thus, there is no evidence to provide a nexus with 50% or greater probability between Veteran's left knee pain diagnosed in 2013 and his period of active service. The Board accords substantial probative weight to the competent medical evidence, the 2018 medical opinion and the treatment record, which establishes that the left knee disorder first manifested years after service, and not during service or during any presumptive period. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). The 2018 medical opinion is of greater probative value than the aforementioned non-VA medical opinion evidence for the same reasons previously articulated. Namely, the VA opinion is well-supported and thoroughly explained, to include with reference to the potentially conflicting evidence. Again, the chiropractor’s opinion was not based on a review of the record and does not address the negative findings prior to 2013, which makes the opinion of minimal probative value. The osteopath’s statement is not an actual opinion but rather a recitation of Veteran-reported history which the Board rejects. Again, the Veteran has reported that he had some knee treatment in the intervening period between service and 2013 but all available attempts to obtain the records have yielded no results. The statement about treatment are not credible. As to etiology, the Veteran’s opinion is not entitled to probative weight because he lacks the requisite expertise to opine as to the etiology of current knee disorder. Id. The preponderance of the competent evidence is against finding that a current left knee disorder is otherwise related to service. The multi-year gap between discharge from active duty service and evidence of the condition decades later is viewed as a factor weighing against this claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The weight of the evidence is against concluding that any such disease was incurred in service. 38 C.F.R. § 3.303 (d). Finally, the Veteran argued that the left knee disorder is secondary to right knee disorder. There can be no secondary service-connection, as the criteria requires a currently service-connected disability. 38 C.F.R. § 3.310. The preponderance of the evidence is against the claim on a direct, presumptive and secondary basis, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.