Citation Nr: 20048058 Decision Date: 07/17/20 Archive Date: 07/17/20 DOCKET NO. 16-10 953 DATE: July 17, 2020 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. FINDINGS OF FACT 1. The Veteran did not have a right or left knee disability that preexisted his service. 2. The Veteran’s bilateral knee disability was not manifest in service, was not manifest within one year of separation and is not related to service. CONCLUSIONS OF LAW 1. A right knee disability was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 2. A left knee disability was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1975 to March 1978. These matters come to the Board of Veterans’ Appeals from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded these issues for additional development. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The provisions of 38 U.S.C. § 1111 provide that every veteran shall be taken 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, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). A pre-existing injury or disease noted at entry will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The provisions of 38 C.F.R. § 3.306(b) provide that aggravation may not be conceded unless the pre-existing condition increased in severity during service. An important distinction between section 1111’s aggravation prong of the presumption of soundness and section 1153 presumption of aggravation is the burden of proof. Under section 1111, the burden is on the Government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Under section 1153, however, the Appellant bears the burden of showing that his preexisting condition worsened in service. Once the veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2014). A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Factual Background and Analysis The Veteran contends that a current a bilateral knee disability is related to service. Specifically, the Veteran stated that he injured the knees in service while performing duties driving a truck. In a November 2013 statement, the Veteran reported that he had surgery on the knee prior to service, which left scar tissue over the knee cap. The Veteran stated that infantry service and training led to problems with the knee, causing him to favor the other knee. The Veteran’s March 1975 enlistment examination is negative for complaints, treatments or diagnoses related to a knee disability or knee surgery. A February 1978 service treatment record noted that the Veteran had right and left knee pain. Another February 1978 service treatment record reported that the Veteran suffered a right knee contusion after he stumbled and fell. X-rays of the right knee were negative. The Veteran’s February 1978 separation examination was negative for complaints or treatments of a bilateral knee disability. The Veteran underwent a VA examination in October 2012. The examiner noted that the Veteran had a right knee contusion in service in 1978. The Veteran also had a bilateral knee strain with possible arthritis. The examiner noted the incident in service where the Veteran suffered a knee contusion after a fall. He also noted that a February 1976 service treatment record indicated that the Veteran had low back pain radiating to both knees and shins but that his was not a knee condition or a knee injury as this was referred pain from his back. The Veteran’s February 1978 separation examination was also negative for complaints of a knee disability. The examiner noted that there were no other notes since the Veteran left the service and he had not been followed by VA for medical care. The examiner opined that the Veteran’s bilateral knee disability was less likely than not incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that with a lack of evidence in the Veteran’s service treatment records and a long gap in medical records from 1978 to 2012, he could not attribute the Veteran’s current knee disability to his service. In service he had once incident of a right knee condition that seemed mild and no reports of a left knee injury. The Veteran’s separation examination was also negative for a knee disability. The Veteran’s military records did not suggest that he had any significant knee injuries or chronic knee problems that would lead to the current severity of his bilateral knee disability. With a gap of 34 years and the severity of his current knee disability, it appeared less likely than not that the Veteran’s current knee disability was related to his service. Per the September 2018 Board remand instructions, the Veteran underwent a VA examination in October 2019. It was noted that the Veteran had degenerative arthritis of the bilateral knees. The examiner noted that the Veteran’s March 1975 entrance examination did not mention a left or right knee disability. While the Veteran had a right knee contusion in February 1978, the Veteran’s February 1978 separation examination also did not mention a right or left knee disability. The examiner noted that while the Veteran gave a history of a left knee injury prior to service which required surgery prior to his military service, neither the enlistment examination nor the separation corroborated this injury or surgery. The examiner opined that it was less likely than not that the Veteran’s current bilateral knee disability was related to his service. The examiner also opined that that it was less likely than not that the Veteran’s left or right knee disability was aggravated beyond its natural progression as there was no evidence of aggravation. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a bilateral knee disability is not warranted. As there is a current diagnosis of degenerative arthritis of the bilateral knees, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Initially, the Board again notes that in a November 2013 statement, the Veteran reported that he had surgery on the knee prior to service, which left scar tissue over the knee cap. The Veteran also stated that infantry service and training led to problems with the knee, causing him to favor the other knee. However, the Veteran’s March 1975 induction examination was negative for complaints, treatments or a history of a knee disability and the Veteran’s Report of Medical History at the time was negative for a knee condition. Additionally, the October 2019 VA examiner specifically opined that there was no clear and unmistakable evidence that a knee disability existed prior to the Veteran’s service. As such, the record does not clearly and unmistakably show that the Veteran had any chronic bilateral knee disability that preexisted his period of service. Therefore, the presumption of soundness is not rebutted and the claims become one for service connection on a direct basis rather than a claim based on in-service aggravation of a preexisting disability. See Wagner, supra. As noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such disease is shown to be manifest to a degree of 10 percent or more within one year following the Veteran’s separation from active military service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this instance however, service connection for a bilateral knee disability on a presumptive basis is not warranted as the record does not show evidence of arthritis of the bilateral knees during the Veteran’s period of active military service, or within one year of his separation from active duty. Notably, the first evidence of arthritis of the bilateral knees was on the October 2012 VA examination was over 34 years after the Veteran’s discharge from active service. Accordingly, service connection for a bilateral knee disability on a presumptive basis is not warranted as a chronic disease did not manifest to a degree of 10 percent or more within one year following the Veteran’s separation from active military service. To the extent that the Veteran is asserting that he experienced bilateral knee pain and continuing symptoms thereafter, the Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, as the Veteran was not diagnosed with a bilateral knee disability until many years after service, no complaints or findings were noted during the course of his medical separation, and there was a significant period between his service injuries and his post-service complaints where the medical record was silent for complaints of a bilateral knee disability, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Regarding service connection on a direct basis, the Board finds that the evidence is against a finding that the Veteran’s bilateral knee disability is otherwise etiologically related to his service. Notably, while the Veteran’s service treatment records demonstrate that the Veteran suffered a right knee contusion in February 1978 due to a fall, as documented above, the service treatment records are negative for chronic right or left knee disabilities in service. Significantly, the service treatment records, including the Veteran’s February 1978 separation examination, were negative for right or left knee treatments or complaints after the documented incident where the Veteran injured his right knee. Furthermore, the only medical opinions addressing the etiology of the bilateral knee disabilities weigh against the claim. As noted above, the October 2019 VA examiner, while specifically noting the Veteran’s in-service right knee complaints. indicated that it was less likely than not that the Veteran’s bilateral knee disabilities were related to service. The Board affords the VA examiner’s October 2019 opinions, which are supported by a detailed rationale and medical knowledge, great probative value. In forming his opinion, the VA examiner specifically discussed the in-service treatment for the Veteran’s knees and noted the Veteran’s lay assertions regarding his bilateral knee disability while clearly acknowledging his lay statements regarding the in-service incurrence of these injuries and the claimed aggravation of preexisting knee disabilities. None of the competent medical evidence of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. Thus, the Board finds the examiner’s October 2019 opinions to be persuasive. The Board notes the Veteran’s contentions regarding the etiology of his claimed bilateral knee disability. To the extent that the Veteran contends that a medical relationship exists between his claimed bilateral knee disability and his service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that a bilateral knee disability is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran does not have the medical expertise to provide an opinion regarding the claimed bilateral knee disability etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the October 2019 VA examiner provided detailed rationales in support of his opinions and cited to the relevant evidence. For this reason, the VA examiner’s opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). Thus, the Veteran assertions that there is a relationship between his claimed bilateral knee disability and his service are not sufficient in this instance and are outweighed by other probative evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the Board finds that service connection for a bilateral knee disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the   evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.