Citation Nr: 20044545 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 14-28 335 DATE: July 2, 2020 ORDER Entitlement to service connection for a left knee condition is DENIED. Entitlement to service connection for a right knee condition is DENIED. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran’s currently diagnosed left knee degenerative arthritis and/or the 2010 meniscal tear either began during, or was otherwise caused by, his military service in the United States Marine Corps. 2. The weight of the evidence is against a finding that the Veteran’s currently diagnosed right knee degenerative arthritis and/or the 2011meniscal tear either began during, or was otherwise caused by, his military service in the United States Marine Corps.   CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). 2. The criteria for entitlement to service connection for a right knee disability have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1974 to August 1976. Entitlement to service connection for bilateral knee disabilities is denied. In June 2011, the Veteran submitted a VA Form 21-4138. Therein, the Veteran initiated an entitlement claim for a bilateral knee condition. In general, a service connection claim may be granted for a disability resulting from a disease or injury incurred in, or aggravated by, active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “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. 2010)(quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In August 2011, the Veteran submitted a VA Form 21-4138. Therein, the Veteran posited that, “after basic training which later on caused my knees to become painful. From all the physical training . . . After I arrived at Norfolk Naval shipyard to do more hard training, which I tried not to be a labeled as a ‘quitter’ which was bad for a Marine, my knees became even worse, but I sucked it up and coped with my problems.” In May 2012, the Veteran’s treatment notations from Albert Einstein Healthcare Network were associated with the claims file. Therein, diagnoses for a right knee medial meniscus tear and osteoarthritis were reported. In October 2012, the Veteran’s service treatment records (STRs) were associated with the claims file. During the August 1974 enlistment examination, the Veteran reported a “minor” knee injury within the past five years. The Board observes that the Veteran’s clinical evaluation at enlistment noted “normal” lower extremities. The military examiner did not note any pre-existing conditions in the Veteran’s enlistment examination report. In July 1976, a military medical provider noted that, “Osgood Slaters r knee exacerbated in boot camp, doesn’t desire anything other than consultant management.” In July 1976, the military examiner noted an in-service history of right knee Osgood Slaters in the Veteran’s separation examination. In December 2012, the Veteran underwent a VA examination that considered the nature and etiology of any currently endure bilateral knee condition. At that time, the VA examiner noted a diagnosis for “a right knee condition. It is a torn meniscus in the right knee, status post meniscectomy. Date of diagnosis: 2011. There are no other diagnoses that pertain to this diagnosis. Side affected: the right knee.” The VA examiner relayed that, “I am unable to give an opinion in regard to relationship to military service because I do not have the claims file to review.” In May 2013, a VA Administrative Decision was associated with the claims file. Therein, it was relayed that, “the Veterans DD Form 214 indicates active duty service from August 6, 1976 through October 19, 1974 until his discharge under conditions other than honorable. On November 10, 2010 we completed an Administrative Decision deeming this period honorable for VA purposes. The Veteran claims he sustained injury due to events during his incarceration as a result of his 401 unauthorized absences during active duty military service. The Veteran claimed his repeated and lengthy unauthorized absences were attributed to the needs of his extended family and administrative issues with the Marine Corps. It should be noted that an unauthorized absence more than 30 days is not considered active duty service in accordance with Article 86 Uniformed Code of Military Justice. Based upon the evidence of record any incident, event, or injury sustained to the Veteran during his unauthorized absences during active duty military service cannot be subjected to service connected compensation by law.” In November 2013, correspondence from the Veteran was associated with the claims file. Therein, the Veteran posited that, “I went to Boot Camp at Paris Island all we did was run, run and exercise, then AIT at Marine Corp Base Camp Pendleton CA running more and climbing mountains there, and last but not least Sea Duty Training at Norfolk Naval Shipyard, with more running and exercising. This eventually took a toll on my knees . . ..” In July 2015, the Veteran supplied sworn testimony to the undersigned Veterans Law Judge (VLJ). The Veteran testified that, “I have bi-lateral, uh, meniscus tears, on both knees. Which occurred on separate --on separate occasions. But they were going bad all the time. It was just something that was going to happen eventually. And, um, I believe that, uh, just all the running. Excessive PT training had a lot to do with what’s going on with my knees . . ..” When questioned by the undersigned, the Veteran testified that he first sought treatment for his knees in 2006 or 2007. When asked by the undersigned if any doctors had related his knee problems to military training, the Veteran responded that, “not in so many words. They said that ---I have, uh, I put a lot of stress on my knees over the years. They --they didn’t know I --they don’t even know that I was in the service.” When questioned by the undersigned, the Veteran testified that he did not endure injury to his knees before or after active duty service in the United States Marine Corps. In March 2018, the Board considered the Veteran’s entitlement claim for a bilateral knee condition. At that time, the Board remanded the Veteran’s entitlement claim to the agency of original jurisdiction (AOJ) for additional development. The Board noted that, “(t)he Veteran was provided a VA examination for his right knee claim . . . in December 2012. The examiner stated that he was not provided a copy of the Veteran’s service treatment records, as such the examiner was unable to opine on service connection for any claimed condition. . . . The Board finds that the prior examinations were not adequate, as such, new examinations for the Veteran’s knees . . . must be performed.” In April 2018, the Veteran’s treatment notations from Albert Einstein Healthcare Network were associated with the claims file. Therein, it was reported that the Veteran demonstrated bilateral knee osteoarthritis. The records also indicated that the Veteran had undergone bilateral meniscectomy. However, after deliberate review, the Board observes that the medical notations do not discuss and/or identify an etiological relationship between the Veteran’s current bilateral knee disabilities and active duty service in the United States Marine Corps. In October 2019, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured bilateral knee condition. The VA examiner reported diagnoses for right knee Osgood Schlatter, bilateral degenerative arthritis, and bilateral meniscal tears (2010 & 2011). The VA examiner reported the following medical history for the right knee: “X-ray right knee 12/10/2010: osteoarthritis. MRI right knee 9/2/2011: medial meniscus tear Right meniscectomy 11/1/2011.” The VA examiner reported the following medical history for the left knee: “ Left meniscus tear MRI 10/27/210. Also subacute fracture of the medial femoral condyle and mild osteoarthritis of the left knee. X-ray left knee 8/24/2011: degenerative changes of the left knee. Left meniscectomy 2013.” The VA examiner opined that it was not at least as likely as not (i.e. 50 percent probability) that the current bilateral knee disabilities were caused by the Veteran’s active service. The VA examiner supplied the following rationale: “(t)he Veteran was diagnosed with Osgood-Schlatter disease of the right knee when on active duty. This is a benign and self-limited condition. Osgood-Schlatter disease does not cause or predispose to tears of the menisci or the osteoarthritis of the knee.” The Board observes that the Veteran is currently diagnosed with bilateral knee disorders. The Board also observes that the STRs reflect that the Veteran endured Osgood-Schlatter during active duty in the United States Marine Corps. Consequently, the Board finds that the first and second requisite element for direct service-connection have been substantiated. See Holton, 557 F.3d at 1366 (quoting Shedden, 381 F.3d at 1167). However, after deliberate review, the Board concludes that the claims file is devoid of a competently identified nexus between the Veteran’s current knee disorders and an in-service injury or disease. Moreover, the Veteran testified that he first sought medical treatment for his knee disorders at least three decades after he separated from the United States Marine Corps. Consequently, service connection cannot be awarded based on the continuity of symptomatology. See 38 C.F.R. § 3.303 (b). Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s entitlement claims for service connection for bilateral knee disabilities. Since the preponderance of the evidence is against these knee claims, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim of entitlement to service connection for bilateral   knee disabilities must be denied, because the preponderance of the evidence weighs against his claims. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.