Citation Nr: 21000074 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-39 985 DATE: January 4, 2021 ORDER Entitlement to service connection for right knee arthritis is denied. Entitlement to service connection for left knee arthritis is denied. FINDINGS OF FACT 1. A right knee disability is not etiologically related to the Veteran’s active service, and arthritis of the right knee was not shown to be present within one year of his separation from active service. 2. A left knee disability is not etiologically related to the Veteran’s active service, and arthritis of the left knee was not shown to be present within one year of his separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee arthritis have not been met. 38 U.S.C. §§ 1110, 1112, 1131,1137, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 2. The criteria for service connection for left knee arthritis have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from October 1960 to February 1965. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decision issued by Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2019. A transcript of that hearing has been associated with the claims file. This case was previously before the Board in June 2019, at which time the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. The Board notes that the issue of entitlement to service connection for a psychiatric disability was also remanded by the Board in June 2019. However, in an October 2020 rating decision, the Veteran was granted entitlement to service connection for posttraumatic stress disorder (PTSD) with major depressive disorder was granted. That constitutes a full grant of the benefit sought on appeal, and the Board has limited its consideration accordingly. Service Connection – Right and Left Knee Disabilities The Veteran claims his arthritis of the knees is related to a bilateral knee injury he sustained in service. Specifically, he stated that in September 1964, he slipped on the flight deck of the carrier he was serving aboard and hurt his knees. He further stated he was unable to receive medical treatment for that injury during the Vietnam War, but he sought medical attention after he was discharged. Turning to the evidence of record, service treatment records are negative for any complaints of, or treatment for a knee injury. At his October 1964 separation examination, clinical evaluation of the lower extremities was normal. Post-active duty Naval Reserve treatment records note that, at periodic examinations dated in February 1989, January 1992, and September 1995, clinical evaluation of the lower extremities was normal. In accompanying reports of medical history, the Veteran denied a history of “trick” or locked knee, arthritis, or bone, joint or other deformity. In August 2001, the Veteran sought treatment with Dr. S.G.T. for bilateral knee problems. At that time, the Veteran stated that he was involved in a motor vehicle accident (MVA) in June 2000 and complained of knee pain for a year. Symptoms started gradually with pain and stiffness. Following diagnostic testing, the Veteran was diagnosed with moderate osteoarthritis of the knees. A December 2005 private orthopedic consultation indicated that the Veteran reported having knee symptoms for the past 20 years. In January 2006, the Veteran underwent a total left knee replacement. In January 2007, the Veteran underwent a total right knee replacement. In February 2007, the Veteran’s treating physician, Dr. M.A.W., wrote that he treated the Veteran in 2002, and that it was apparent at the time of consultation, detailed history, and examination, that the Veteran’s knee complaints were obviously very chronic and degenerative in nature. The degenerative features were obviously early for the patient’s particular age. At that time, he was told that it was most likely due to his history in the armed forces and that he probably would be facing invasive knee treatment soon. This patient appeared otherwise healthy and young for his age, other than the bilateral knee early degeneration, and led the examiner to believe that it was chronic and labor-induced and not necessarily age-related. In an October 2008 letter, Dr. S.G.T. stated that the Veteran was in his office in October 2008 for chronic knee pain, and that the Veteran stated he had chronic knee pain since he fell of the deck of the carrier in 1964. In an October 2008 lay statement, the Veteran reported that he had received a series of knee injections in his knees in June 1965, October 1966, May 1970, and September 1972. He stated that the last shots “lasted” until he was able to find Dr. S.G.T. in 2001, who administered more shots to help his knees. The Veteran stated he was unable to obtain these records because the physician who treated him is now deceased. Finally, the Veteran stated that, although he mentioned an MVA to Dr. S.G.T., that accident “had nothing to do with [his] knee injury.” Following a September 2020 VA knee examination, the examiner opined that the Veteran’s left and right knee arthritis were less likely than not incurred in or caused by service. The examiner acknowledged the Veteran’s reports of injury in 1964 and post-service knee injections from 1965 to 1972. However, the examiner noted that the documented osteoarthritis in 2001 is over 20 years after the reported post-service knee injections, which is too long of a gap without medical records if the condition occurred in service. Citing medical literature, the examiner noted other factors that must be taken into account for a diagnosis of osteoarthritis, including aging and weight. In an October 2020 VA addendum opinion, the examiner specifically addressed the statements from Dr. M.A.W., Dr. S.G.T., and the Veteran. The examiner noted that it was unclear if Dr. M.A.W. had was aware of the Veteran’s intervening car accident in 2000, or if he had access to the claims file that did not show knee complaints during active duty and subsequent Reserve records wherein the Veteran denied knee pain multiple times. The examiner stated that although Dr. M.A.W. rendered a positive opinion, the statement is mere speculation. Additionally, the S.G.T. indicating that the Veteran’s knee pain was due to falling on the deck of the carrier when he was in service and that the Veteran denied that the knee pain was a result of an MVA. The examiner noted that there was no evidence found that showed the Veteran was involved in an MVA. Finally, the examiner cited additional medical literature noting multiple risks for osteoarthritis, including overuse, age, gender, obesity, genetics, and race. Based on the foregoing, the Board finds that service connection for arthritis of either knee is not warranted. Although the Veteran has current knee disabilities and reported that he experienced knee pain in service and thereafter, the earliest notation of knee pain is in August 2001, over 35 years after discharge from active duty. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Further, as noted above, the Veteran did not report knee pain on his separation examination one month after the reported fall, and he denied knee symptomatology on multiple subsequent reserve examinations over the years. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Board recognizes that, due to the passage of time, the Veteran was unable to obtain treatment records noting injections to the knees in 1965 to 1972. However, the Veteran reported that the last injection in 1972 was sufficient to treat his knee complaints until 2001, the next time he complained of knee pain to a treatment provider. The absence of complaints or treatment within those nearly 30 years suggests that it the knee pain did not result in a chronic disability. The Board has also considered the conflicting medical opinions of record. 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 that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the September 2020 opinion (and October 2020 addendum) was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Guerrieri, 4 Vet. App. at 470-71. The opinion is also shown to have been based on a review of the Veteran’s record, including the lay statements, Board testimony, and positive opinion, and is accompanied by a sufficient explanation as to why the Veteran’s right and left knee disabilities were not as likely as not related to service. Prejean, 13 Vet. App at 448-49, Nieves-Rodriguez, 229 Vet. App. at 295. Thus, this opinion is probative. In contrast, the February 2007 opinion does not note a review of the Veteran’s claims file, including the examination records subsequent to his reported bilateral knee injury in which the Veteran specifically denied a history of knee symptoms. Moreover, while the examiner related the knee disabilities to the Veteran’s “history in the armed forces,” the examiner did not note that the Veteran separated from active duty in 1965, and that that his remaining service history was in the Reserves. Instead, the report appears to be based entirely on the Veteran’s reported history. This suggests to the Board that the opinion is based on an inaccurate factual predicate, thereby lessening the probative value of the opinion. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (providing that an opinion based upon an inaccurate factual premise has no probative value). The Board has also considered the lay evidence of record. The Veteran is competent to describe what he has personally observed or experienced. However, the ultimate questions of diagnoses and etiology in this case extend beyond an immediately observable cause-and-effect relationship and are beyond the competence of lay witnesses. Finally, as noted above there is no indication from the record that the Veteran had knee arthritis present to a compensable degree within a year following his separation from active service. Therefore, presumptive service connection is not warranted in this case. 38 C.F.R. § 3.309 (2019). (Continued on the next page)   In sum, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009). Accordingly, entitlement to service connection for left or right knee arthritis is not warranted. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, 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.