Citation Nr: 21000937 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-50 564 DATE: January 6, 2021 ORDER Entitlement to service connection for bilateral knee injuries, to include arthritis, is denied. FINDINGS OF FACT The preponderance of the evidence is against finding that bilateral knee injuries, to include arthritis, began during active service, or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW The criteria for service connection for bilateral knee injuries, to include arthritis, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty as a construction equipment specialist in the United States Army from April 1978 until his honorable discharge in April 1982, at which time he joined the Army Reserves. He remained in the Army Reserves from April 1982 until his honorable discharge in February 2002 due to illness. His separation records and private medical records from that time note that he was discharged due to severe asthma. There was no mention of a knee condition. He had two active duty periods during that time, the first from December 1990 until his honorable discharge in April 1991 when he served in support of Operation Desert Shield/Storm from January 1991 to April 1991 and the second from February 10, 1995 to February 26, 1995. See Service Treatment Records February 2002 Department of the Army Memorandum and Military Personnel Record. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2018, the Veteran and his son testified before the undersigned at a travel board hearing. A transcript of his testimony has been associated with the claims file. In March 2019, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to schedule the Veteran for a new VA examination. In response, he had a VA exam in December 2019 and an addendum opinion was obtained in June 2020 after the Veteran submitted documentation concerning an in-service injury in February 1995. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, Service Connection may be granted for a disability resulting from disease or injury incurred in or aggravated by 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 – the so-called “nexus” requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis 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). In such cases, the 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). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is shown as such in service or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is “shown as such in service”, the Veteran is “relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought.” Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, “there is no ‘nexus’ requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.” Id. If evidence of a chronic disease is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Id. at 1339. Furthermore, in deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. Entitlement to service connection for bilateral knee injuries, to include arthritis. The Veteran has a current diagnosis of bilateral knee osteoarthritis. See May 2013 VA Treatment Records and December 2019 and June 2020 VA Examinations. He asserts that this disability developed as a result of his in-service work as a construction equipment specialist and mechanic where he would have to jump on and off tanks and other military equipment. See October 2018 Hearing Testimony. The Veteran asserts that his knees were the worst during Operation Desert Storm when he was working with drilling rigs. He stated he had to ice his knees at night, but there were no medics to treat him other than “combat lifesavers.” Id. He also explained that he was “pushed out of the desert and onto a plane” by the military and so never had a separation physical. Id. The Board finds that the Veteran is certainly competent to provide evidence regarding his time in service and the symptoms he experienced in his knees at that time. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is also a record of a knee injury from February 1995 where the Veteran was on active duty and fell from drilling equipment onto his knees. See Military Personnel Record Submitted by Veteran. As a result, the second element of service connection has been met. The question for the Board is whether his current bilateral knee injuries, to include arthritis, diagnosed as bilateral knee osteoarthritis, either began during service, manifested within one year of separation from service, or are etiologically related to some injury, disease or event during service. The Board finds that the competent, credible, and probative evidence fails to establish that his bilateral knee injuries are the result of active duty service. The Veteran had a VA examination post Board remand in December 2019. The RO then obtained an addendum opinion after the Veteran submitted service treatment records containing a single incident of knee injury in February 1995. The injury was treated with ice for two hours and a cortisone shot. Private treatment records report treating a left MCL strain in March 1995 when he returned home; the record does not connect the injury to service. There was only one entry and the Veteran did not seek further treatment. The June 2020 VA examiner explained that if this was the cause of the current disability there would be severe osteoarthritis in the May 2013 x-ray instead of moderate osteoarthritis. Both the December 2019 and June 2020 examiners found that the arthritic change would be much more advanced in the x-ray if the Veteran was injured in service. The medical opinion evidence is persuasive. Each VA examiner considered the lay contentions and the service treatment records but opined that the Veteran's knee disabilities are not related to military service. Other etiologies, including weight gain and the aging process, were identified. The examiners based their conclusions on an examination of pertinent records in the claims file, including the post-service treatment records and diagnostic reports. They reviewed the reported history and symptoms in rendering the opinions and provided a rationale for the conclusions reached. The December 2019 examiner found that the “more mild/moderate arthritic changes indicate the natural result of the aging process in an obese individual.” This opinion was confirmed by the June 2020 examiner who stated: “If the arthritis were to be post traumatic in nature (as would be expected in the case of a knee injury) one would expect to find significant (as opposed to moderate) damage in the knees 18 years post injury.” The examiners discussed and VA treatment records confirmed that the Veteran had moderate osteoarthritis in his knees in a May 2013 x-ray. The only previous discussion of his knees in medical records are in private medical records from a March 1995 left MCL strain and an August 1997 right knee strain. The Veteran denied any history of injury and stated that “he does do a lot of squatting down and bending in his job as [an] army mechanic.” At that time, he was not on active duty status. See February 2002 Army Memorandum. The Veteran did not seek subsequent treatment for these conditions and was next seen for knee issues in November 2003 when he had right knee arthroscopic surgery due to a meniscal tear confirmed by MRI and caused by a fall. See October 2003 Private Treatment Records. There is no medical evidence of a chronic knee condition during service or within the one-year period following active service. The only evidence to the contrary of the VA examiners' opinions is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such a medically complex disability as osteoarthritis of the knees. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Likewise, the Veteran’s son and his coworker, D.H., do not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion. Id. These individuals may have seen the Veteran in pain, but the Board gives medical evidence of record more weight in determining whether the Veteran’s current disability is connected to his military service. Bilateral knee arthritis was not noted during service and characteristic manifestations of the disease processes were not identified, § 3.303(b) is not applicable. See also Walker, 708 F.3d at 1331. Moreover, the Veteran's contentions regarding onset of knee pain and continuity of such since service are less persuasive than the medical evidence. The Board finds the medical opinion evidence persuasive and finds that the Veteran’s bilateral knee osteoarthritis did not develop as a result of his military service. As a result, the claim for service connection is denied. (Continued on the next page)   In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Johnston, 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.