Citation Nr: 21000308 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-48 216A DATE: January 5, 2021 ORDER Entitlement to service connection for a left knee disorder, to include left knee joint osteoarthritis, is denied. FINDING OF FACT The probative evidence of record does not support a finding that the Veteran’s left knee disorder was incurred in or aggravated by his active service, to include an in-service injury during a boxing tournament. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disorder, to include left knee joint osteoarthritis, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1950 to November 1952. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. In November 2019 and August 2019, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for additional evidentiary development. There has been substantial compliance with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a left knee disorder The Veteran seeks service connection for his current left knee disorder. Service connection 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; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for certain chronic diseases, including arthritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309 (a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board notes that the evidence of record raises the issue of whether the presumption of soundness attaches and if so, whether such has been rebutted. See September 1950 Report of Medical Examination; September 2019 hearing transcript. On the September 1950 Report of Medical Examination at enlistment, a 1948 left knee injury was noted in the “remarks” section. However, only the Veteran’s right knee was noted as abnormal on clinical evaluation. No diagnosis nor any residuals of the left knee injury were noted. As no diagnosis was made for the Veteran’s left knee and no abnormal findings or injury residuals were noted on examination, the Board finds that the presumption of soundness attaches. 38 C.F.R. § 3.304 (b). Although the presumption of soundness attaches, it may be rebutted by clear and unmistakable evidence that the current left knee disorder preexisted service and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). During the June 2019 hearing, the Veteran competently and credibly testified that he did not experience any symptomatology related to the left knee when he entered service. A February 1958 statement from the Veteran’s sibling also explains that the Veteran’s 1948 injury resolved prior to service. Moreover, as noted above, no residuals of the left knee injury were noted on examination and only the right knee symptomatology was noted on clinical evaluation. In light of the foregoing, the Board finds there is not clear and unmistakable evidence that the Veteran’s current left knee disorder preexisted service. As the presumption of soundness has not been rebutted, the claim is one for service connection on a direct basis. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Turning to the elements of service connection, the Veteran has been diagnosed with left knee joint osteoarthritis and status post left knee replacement. See June 2020 VA examination report. Accordingly, the first element of service connection is met. Regarding the second element of service connection, the Veteran contends that he injured his left knee while boxing in service. Specifically, the Veteran reports that, during a championship fight in January 1951, he felt a terrible pain in his left knee and had to grab the rope to keep from falling. See September 2019 Board hearing transcript. In this regard, the Veteran is competent and credible to testify as to an in-service injury during a boxing tournament. Additionally, the Veteran has submitted an in-service photograph documenting his participation in a boxing match. Furthermore, in a February 2017 buddy letter, H.L. reported that he served with the Veteran and that the Veteran injured his left knee during a boxing tournament. Accordingly, the second element of service connection is also met. Nevertheless, the Board finds that service connection for a left knee disorder is not warranted. The Veteran’s service treatment records do not show a diagnosis of or treatment for a left knee disorder and his separation examination revealed normal findings. Additionally, none of the Veteran’s medical treatment records indicate the onset of arthritis within a year after separation from service. In October 2020, the AOJ obtained a medical opinion addressing the etiology of the Veteran’s left knee disorder. The October 2020 VA examiner concluded that the Veteran’s left knee disorder was less likely than not incurred in or caused by his in-service injury during a boxing match. The examiner concluded that the Veteran’s in-service knee injury was likely acute and self-limited, as there was not an evaluation for such injury in the Veteran’s service treatment records and his separation examination was negative for a knee disorder. Furthermore, the October 2020 VA examiner also noted that the Veteran’s rheumatologist, who would be considered the expert, found the genesis of the osteoarthritis is due to seronegative rheumatoid arthritis with CPPD (phosphate deposition). The October 2020 VA examiner agreed with the June 2018 rheumatologist’s opinion. The Board acknowledges that in a January 2017 private treatment record, Dr. M.M. opined that it is a reasonable consideration that the Veteran may have injured his left knee during the boxing match, specifically may have torn his meniscus, and that subsequently led to the degree of arthritis the Veteran has today. However, the Board finds that use of the language of “reasonable consideration” and “may have” renders the opinion speculative. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Additionally, Dr. M.M. provided no rationale for his opinion. For these reasons, the January 2017 private examiner’s opinion is of minimum probative value. In addition, the October 2020 VA examiner noted that even though Dr. M.M. hypothesized, 65 years after service, that a possible meniscus tear could have occurred and led to the Veteran’s arthritis, such is highly unlikely as the pain would’ve been acute, likely with swelling, and unlikely to have been reported. Furthermore, the October 2020 VA examiner found that any lingering injury would definitely have been noted at separation, as joint examinations are part of that military requirement. As the October 2020 VA examiner was able to review and consider all of the evidence of record, to include the private January 2017 medical opinion, and provided full rationale in support of his opinion, as well as clear and complete rationale for his disagreement with the January 2017 private opinion, the October 2020 VA opinion is entitled to substantially more weight than the January 2017 private opinion. Additionally, while the June 2020 VA examiner provided a negative nexus opinion, the VA examiner appears to have addressed the etiology of the Veteran’s “status post left knee replacement” disorder but did not adequately address or explain the etiology of his left knee joint osteoarthritis. As such, the June 2020 nexus opinion is inadequate and provided no probative weight. Furthermore, service connection is not warranted on a presumptive basis as the Veteran has not been shown to have left knee arthritis that manifested to a degree of 10 percent or more within one year after separation from service. 38 C.F.R. § 3.309. The Veteran’s military service records document service from November 1950 to November 1952. As noted above, the Veteran’s separation examination report is negative for a left knee injury. The earliest medical treatment records in the claims file noting left knee arthritis are from over 50 years after the Veteran separated from service. The Board acknowledges that the June 2020 VA examiner noted in the history section that the Veteran’s “condition started in 1951” and thereafter records the Veteran’s account of his disorder. However, a diagnosis of arthritis generally required diagnostic studies such as x-rays and the examiner did not explain how he reached such conclusion. Nevertheless, reading the examination report as a whole, it appears that the June 2020 VA examiner was simply recording the history of the Veteran’s left knee disorder, per the Veteran’s account. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (VA examination report “must be read as a whole” to determine the examiner’s rationale). As noted above, the Board finds the June 2020 examination report inadequate for adjudication purposes. Additionally, while the Veteran contends that his left knee disorder is due to an in-service injury that occurred during a boxing match, as a lay person, he has not been shown to have specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of arthritis requires medical testing and expertise to determine. Thus, his lay opinion regarding the etiology of his left knee disorder is not competent medical evidence. In conclusion, there is no competent evidence of a left knee disorder in service or within one year following discharge from service. Moreover, the most probative evidence is against a finding that the Veteran’s current left knee disorder is related to service. As noted, the probative medical evidence in this case weighs against the Veteran’s contentions and claim. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).   Accordingly, entitlement to service connection for a left knee disorder is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. B. Smith, 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.