Citation Nr: 20036472 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 09-47 472 DATE: May 28, 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 preponderance of the evidence shows that right and left knee disorders were not present in service or until many years thereafter and they are not related to service or to an incident of service origin. CONCLUSIONS OF LAW The criteria for service connection for right and left knee disorders have not been met. 38 U.S.C. §§ 1110, 1101, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from January 1972 to March 1975. In March 2014, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge at the Waco, Texas RO. A transcript of the hearing is associated with the claims file. In a February 2016 decision, the Board denied the Veteran entitlement to service connection for a bilateral knee disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2017, the Court issued a memorandum decision vacating the decision and remanding the matter to the Board for further consideration. In December 2017 and June 2018, the Board in accordance with the directives found in the March 2017 memorandum decision remanded the claim to obtain an addendum opinion. The matter is now before the Board for further appellate consideration. Lastly, the Board notes that the record shows that the Veteran has also perfected claims of service connection for pes planus and sleep apnea. Moreover, in the interest of Judicial economy the Board would normally address these issues in the below decision. However, because the Veteran requested a hearing in connection with his pes planus and sleep apnea claims, the Board can not address those claims at this time. Those claims will be address in another Board decision, following a hearing. Concerns Raised by the Court and Adequacy of the Post-Remand Development As to the post-remand development, the Board finds that it substantially complied with the Remands as well as the concerns raised by the Court in its’ March 2017 decision. See 38 U.S.C. § 5103; Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order). The Board has reached this conclusion because while the appeal was in remand status all identified and available VA and private treatment records were obtained and associated with the record. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998). The Board has also reached this conclusion because the post-remand record shows that in February 2018 and March 2019 the regional office (RO) provided the Veteran with new VA examinations which provided both a competent and credible opinion as to the nature of the knee spurs found in the June 2014 x-rays that were discussed by the Court in its’ March 2017 decision and the reason why it found the June 2014 VA examination inadequate (i.e., the March 2019 VA examiner opined that spurs are not a disability but are instead symptoms of quadraceps and patella enthesopathy); diagnosis for the Veteran’s right and left knee disorders (i.e., the Veteran was diagnosed with subclinical patellar tendonitis with secondary tendon calcifications as well as quadraceps and patella enthesopathy); and provided clear etiology opinions supported by the results of the examinations, the medical evidence of record, controlling medical literature, the appellant’s competent and credible lay claims regarding observable symptomatology, and supported their opinions with medical reasoning. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, supra; D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order); also see Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board’s statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran’s position). The Merits of the Service Connection Claims The Veteran claims he has had right and left knee disorders due to running in boots while in service more than 45 years ago. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In the past Board decision, there was some question regarding if the Veteran had a bilateral knee disability. As to a current disability, the post-service record now shows the Veteran being diagnosed with right and left knee subclinical patellar tendonitis with secondary tendon calcifications as well as quadraceps and patella enthesopathy. See, e.g., VA examinations dated in February 2018 and March 2019. In this regard, and as explained above, the spurs seen in the Veteran’s knees on the 2014 x-ray are not a disability but instead are a symptom of bilaterally quadraceps and patella enthesopathy. In any event, for the purposes of this decision, the Veteran has a bilateral knee disability VA purposes. The Board also finds that the Veteran is competent to report on the events he experiences while on active duty as well as manifestations of his right and left knee disorders, such as pain and list motion. See Davidson, supra. However, the service treatment records, including the February 1975 separation examination, are negative for injuries, complaints, treatment for symptoms, and/or a diagnosis of right and/or left knee disorders. In fact, at the February 1975 separation examination the Veteran specifically denied having a history of trick or locked knee and on examination it was opined that his lower extremities were normal. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In this regard, it is important to note that in this piece of evidence it is the Veteran himself that is providing factual evidence against his own claim, strongly indicating that he himself did not believe he had a bilateral knee disability when he was discharged from service. This piece of evidence undermines the Veteran’s contention that he has had a bilateral knee disability since running in boots while in service more than 45 years ago. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused his current right and left knee disorders. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In this regard, the Board finds that the detailed service record, which documents the Veteran’s complaints, diagnoses, or treatment for a number of other problems, weights against his current claims. See Owens, supra. This finding is supported by the Veteran’s own statement when he left service. The post-service record does not show the Veteran being diagnosed with arthritis in the right and/or left knee in the first post-service year. Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) do not help the Veteran establish service connection for right and left knee disorders. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. More importantly, the record does not show that the Veteran had a continued problem with right and left knee disorders in and since service. In fact, as noted above, the February 1975 separation examiner found his lower extremities to be normal; providing highly probative evidence against the claims. Likewise, and more importantly, the post-service is also negative for any complaints, diagnoses, or treatment for right and left knee disorders until decades years after his 1975 separation from active duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b); see, e.g., VA treatment records dated in April 2009, February 2010, and March 2011. This fact would seem to support the findings of the examiner in service who provided evidence against the claims, as noted above. Given this record, the Board finds that the service medical records and the post-service medical evidence provides highly probative factual evidence, overall, against these claims. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with right and left knee disorders in and since service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b). The Board also finds that the preponderance of the evidence shows that the Veteran’s current right and left knee disorders are not due to her military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, the February 2018 or March 2019 VA examiner opined that the Veteran’s right and left knee subclinical patellar tendonitis with secondary tendon calcifications as well as enthesopathy were not due to his military service. Moreover, the Board finds the VA examiners opinions the most probative evidence of record because they were provided after a review of the record on appeal, an examination of the Veteran, and supported by citation to evidence found in the record. See Owens, supra. The medical opinions are also not contradicted by any other competent and credible medical evidence of record. See Colvin, supra. It is important for the Veteran to understand that at this point both the factual evidence and the medical evidence provides highly probative evidence against these claims that the Board can not ignore. In addition, the Board finds that the Veteran is not competent to provide the missing nexus opinion because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused his current right and left knee subclinical patellar tendonitis with secondary tendon calcifications as well as enthesopathy). See Davidson, supra. He simply does not have the medical qualifications to suggest that running in service 45 years ago is the cause of his current problem. With regard to the contention that the Veteran may have that he has had problems with his knees since running in service more than 45 years ago, the Board must find that such a contention is simply not accurate Therefore, the Board finds that the most probative evidence of record also shows that the Veteran’s right and left knee disorders are not due to his military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d); also see Rabideau, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claims of service connection for right and left knee disorders. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.