Citation Nr: 21001543 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 11-07 570 DATE: January 8, 2021 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. FINDINGS OF FACT 1. The Veteran’s left knee disability is not etiologically related to an in-service injury, event, or disease. 2. The Veteran’s right knee disability is not etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 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 from October 1974 to September 1978. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. This matter was previously remanded by the Board in February 2017 and June 2020. As the requested development has been completed, no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service 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 attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran has a current diagnosis of degenerative joint disease in each knee. See, e.g., August 2020 VA examination. Thus, the remaining question is whether either or both current knee disabilities are related to service. Service treatment records show that in January 1976 the Veteran injured his left knee while roller skating. The diagnosis was contusion. The Veteran sought treatment in May 1976 for trauma to the right knee when he accidently hit it with a hammer. The initial diagnoses were (1) contusions and (2) “?” fracture of patella or medial condyle, tibia. The note indicates the right knee would be X-rayed if there was no improvement in the morning. No X-ray is documented in the service treatment records, nor is any follow up treatment for the right knee. There are also no other service treatment records related to a left knee disability. As the Veteran reported the above knee problems and other ailments during service, and knee problems are the type that a reasonable person would report, if the Veteran was experiencing ongoing, continuing, or additional problems with the knees during service the Board would expect that he would have reported these problems to medical professionals. During the September 1978 separation examination, evaluation of the knees was normal. Post service, in August 1993, the Veteran sought treatment for pain in the left knee, right toe and other areas diagnosed at the time as polyarthralgia and polymyalgia. When reporting aches the next month, the Veteran expressed concerns about post-service fluoride exposure. Right knee pain is specifically noted in April 1998. A December 2000 VA examination reported X-rays demonstrated degenerative joint disease in the right knee and left knee. A knee disability, specifically degenerative joint disease, is not shown by medical evidence until approximately 1999, many years after the Veteran’s separation from service. Regarding onset of symptoms related to a knee disability, post-service the Veteran has reported left knee pain in August 1993, which is 15 years after separation, and right knee pain in April 1998, which is 20 years after separation. As a chronic disability of either knee is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of degenerative joint disease is not shown, in-service incurrence of knee degenerative joint disease cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). The Board recognizes the Veteran has submitted lay statements suggesting he has had ongoing knee pain since service, including May 2000 and July 2008 statements from his mother. However, the Board finds that the evidence overall indicates that he did not have significant knee pain or symptomatology continuing since service. Notably, in January 1994, a physician employed with a University’s division of occupational and environmental medicine clinic was assessing the Veteran’s muscle and joint pain, to include trying to determine if such was related to occupational exposure to fluoride. The physician reported that the Veteran relayed he was “in his usual state of good health until approximately one year ago when he began developing diffuse muscle and joint aches and pains.” The Board finds this report highly probative as it was made by the Veteran to aid a medical specialist in determining the cause of his muscle and joint pain. At that point it would have been in the Veteran’s best interest to fully disclose his medical history related to his muscle and joint pain, to include related to his knees. At the time, he indicated symptoms beginning one year prior. Had the Veteran been experiencing significant knee pain since service the Board would expect he would have reported it at this time as a reasonable person would have concluded such information would be relevant to the physician determining the cause of the muscle and joint complaints, especially when a concern was post-service fluoride exposure. Moreover, this report is consistent with the normal evaluation of the lower extremities at the time of separation from service followed by a lack of treatment related to the knees until 1993, the year prior to the note. In May 2017, a VA examiner diagnosed the Veteran with bilateral degenerative joint disease of the knees. The examiner noted the Veteran was treated for contusions of both knees in service and both events were temporary conditions that resolved without sequalae. The examiner then stated that the degenerative joint disease is not related to the knee treatment in service. Although the VA examiner did not explain how the Veteran’s current disability was not related, to the extent that the opinion is consistent with the other VA opinion discussed below, the Board finds it has some probative value. The Veteran presented for a VA examination in August 2020, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner concluded that service did not cause or result in the Veteran’s degenerative joint disease in either knee. In support of this conclusion, the examiner explained that as to both knees, after the January 1976 left knee injury and the May 1976 right knee injury, the Veteran’s knee was normal at both a July 1976 diving candidate examination and the September 1978 separation examination. He was qualified for diving duty. The examiner noted the Veteran’s treatment for fluoride poisoning in the mid-1990s, as well as a detailed history of his complaints and treatment. The examiner found significant, as does the Board, that in 1994 the Veteran reported his muscle and joint pain began a year prior. From this review, the examiner concluded the in-service injuries resolved without residuals. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case, to include the Veteran’s statements, and after examination of the Veteran. The opinion is also supported by other evidence of record. The Board acknowledges that in September 2008, the Veteran’s private treating physician noted the Veteran had degenerative joint disease in the knees, back, and neck. Stating the Veteran had chronic pain, the doctor concluded injuries which occurred in service directly led to all of the Veteran’s major joint problems. This opinion is afforded lesser probative value. There is no indication that the private physician reviewed the service records or other treatment records. The physician refers to in-service injuries generally and it is unclear if the physician was aware that the Veteran’s injuries were documented as contusions; that is, an injury to the skin or tissue. In addition, it is unclear if the physician was aware of or considered significant, relevant evidence such as the normal evaluation of the lower extremities at separation from service and the Veteran’s report of muscle and joint pain with onset in 1993. Given the above, the September 2008 opinion is outweighed by the VA opinions. There is no other medical opinion or competent and credible evidence in significant conflict with the August 2020 VA medical opinion. The Board has considered the Veteran’s statements, to include his assertions that he has knee disabilities related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., knee pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claims and the claims for service connection for knee disabilities are denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell P. Veldenz, 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.