Citation Nr: 21001653 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-14 682 DATE: January 11, 2021 ORDER Entitlement to service connection for a left knee strain is denied. FINDING OF FACT The Veteran’s left knee strain is not related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee strain are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1987 to September 1991, March 2003 to August 2004, and February 5, 2007 to February 26, 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a March 2019 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. This matter was previously before the Board in November 2019. The claim was remanded for an addendum VA examination opinion. In December 2019 and July 2020 VA examination and addendum opinions were provided. Thus, the Board finds that the AOJ substantially complied with the November 2019 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran claims he suffers from a left knee strain disability related to in-service injuries. In the July 2015 NOD he alleged the knee injury occurred while he was deployed in 2003. He alleges he was treated with anti-inflammatory medication, rest, and ice. Upon review of the evidence of record in conjunction with the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim. VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (2014). One of the benefits administered by VA that is reserved specifically for veterans is disability compensation. Accordingly, in order to establish entitlement to disability compensation benefits, a claimant must first establish “veteran” status. However, status as a “veteran” does not automatically attach for periods of active duty for training (ACDUTRA). See Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010) (service on active duty alone is sufficient to meet the statutory definition of veteran, however, service on ACDUTRA (or INACDUTRA), without more, will not suffice to give one “veteran” status). A Veteran is a person who served in the “active military, naval, or air service,” and who was discharged or released therefrom under conditions other than dishonorable. See 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The term “active military, naval, or air service” includes (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty; or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24) (2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain chronic diseases, such as organic diseases of the nervous system (which includes tinnitus), a presumption of service connection arises if the disease is manifested to a degree of ten percent within one year following discharge from service. Fountain v. McDonald, 27 Vet. App. 258, 26465 (2015); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303 (b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (2014); 38 C.F.R. §§ 3.102, 4.3 (2018). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service treatment records (STRs) do not reflect any symptoms, diagnosis, or treatment for a left knee strain. In a November 2003, June 2004, and April 2006 PDHA, the Veteran denied swollen, stiff, or painful joints, as well as muscle aches. When asked about health concerns there were no complaints of left knee issues. Post service, a May 2006 report of medical assessment reflected no health complaints. The Veteran indicated he had no questions or concerns about his health. In a September 2013 report of medical assessment for a retirement examination, the Veteran noted he had left knee pain but did not seek medical care. He was not referred for further evaluation. In June 2015 private treatment records, an MRI of the left knee revealed a focal tear of the posterior horn of the medial meniscus in continuity with the inferior free edge and two small areas of chondromalacia of the patella. A September 2016 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He was diagnosed with bilateral knee strain. The examiner noted the Veteran has had arthroscopic surgery in 1999 and 2015. No opinion was rendered. In an April 2019 letter from G.P., D.O., he opined the Veteran’s left knee meniscus tear and ostearthritis, are more likely than not service connected. No rationale was provided. A December 2019 VA examination opinion report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The examiner opined the claimed condition was at least as likely as not related to service. It was reasoned, a November 1986 enlistment report of medical history was negative for any joint/knee conditions. However, in July 2000 STRs reflected documentation of removal from profile due to knee surgery. The August 2013 addendum to medical history reflected left knee complaints. It was noted, the Veteran incurred situations that resulted in a left knee injury. A July 2020 VA examination opinion report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He was diagnosed with left knee meniscal tear. The examiner opined the claimed condition was less likely as not related to service. It was reasoned, Veteran had no issues related to the claimed left knee strain prior to military service. I am unable to render an opinion as to whether the Veteran’s current diagnosis of left knee strain is related to the Veteran’s military service without resorting to mere speculation. He served intermittently as airlift aircraft maintenance crew. There is no mention of a left knee injury or treatment in the c-file until 2013, and no evidence of chronicity of care. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disability is not related to service. The Board acknowledges the fact that the July 2020 VA examiner was unable to render an opinion as to whether the Veteran’s current diagnosis of left knee strain is related to the Veteran’s military service without resorting to mere speculation. However, “[w]hile VA has a duty to assist the veteran by providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from the procurable medical evidence.” Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The examiner reasoned there was intermittent service as an airlift aircraft maintenance crew with no mention of a left knee injury or treatment in the c-file until 2013. The Board notes that, “[n]otwithstanding the duty to assist, it remains the claimant’s responsibility to submit evidence to support his claim. See 38 U.S.C. § 5107 (a); see also Skoczen v. Shinseki, 564 F.3d 1319, 1328 (Fed. Cir. 2009) (interpreting section 5107 and stating that the duty to assist requires VA to bear the ‘primary responsibility of obtaining the evidence it reasonably can to substantiate a veteran’s claim for benefits’).” Jones, 23 Vet. App. at 390. The Board finds the July 2020 VA examiner reasoning for the inability to render an opinion adequate. As such, the Board finds that it would unduly delay resolution of the claim to remand for another opinion. The Board finds the April 2019 private opinion provided by G.P., D.O., lacks probative value. The doctor failed to give a rationale for his opinion. The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The December 2019 VA examiner provided a positive opinion the examiner based the opinion on July 2000 STRs. However, the Veteran did not have active duty service in July 2000 nor has there been a line of duty determination for that period. As such, the Board finds the December 2019 opinion is not based on an accurate factual premise. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). Furthermore, the preponderance of the evidence demonstrates that symptoms of the left knee disorder has not been continuous or recurrent since separation from active duty service that took place between February 5, 2007 to February 26, 2007. The absence of post-service complaints, findings, diagnosis, or treatment for the claimed knee disability for 8 years after service separation is one factor that tends to weigh against a finding of continuous or recurrent symptoms of the claimed disorders after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Additional evidence demonstrating that symptoms of the claimed disorders have not been continuous since service separation include the Veteran’s November 2003, June 2004, and April 2006 PDHA, where the Veteran has consistently denied swollen, stiff, or painful joints, as well as muscle aches. This evidence is highly probative evidence against a finding of continuous or recurrent left knee disability symptoms since active service, as it is presumed that the Veteran would provide an accurate history of symptoms for the purpose of receiving the best treatment. See Pond v. West, 12 Vet. App. 341, 345 (1999) (while the Board is not free to ignore a claimant’s assertion as to any matter on which he is competent to offer an opinion, it may properly consider the personal interest a claimant has in his or her own case); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (personal interest may affect the credibility of testimony). Regarding the Veteran’s current claim of continuous or recurrent symptoms of the claimed disorder since service, the Board finds that, while the Veteran is competent to report the onset of symptoms of the claimed disorder, these more recent assertions are outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and are not reliable. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the Veteran’s assertions of continuous or recurrent symptoms of a knee disability after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records and the lack of any documentation of reports or treatment for the claimed disability until at least 2013. The only other evidence relating the Veteran’s current left knee disability to service are the Veteran’s lay statements. However, these statements alone do not establish a medical nexus. Indeed, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions on questions of etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). (lay testimony is competent to establish the presence of observable symptomatology). As such, as a lay person, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis, etiology, or causation of a specific disability. The question of diagnosis and causation, in this case, involves complex medical issues that the Veteran is not competent to address. Additionally, the Board does not find the Veteran’s statements credible. During the November 2003 PDHA the Veteran denied swollen, stiff, or painful joints, as well as muscle aches. During the September 2013 report of medical assessment for a retirement examination, the Veteran noted he had left knee pain but did not seek medical care. However, in the July 2015 NOD he alleged the knee injury occurred while he was deployed in 2003. He alleges he was treated with anti-inflammatory medication, rest, and ice. Furthermore, during the March 2019 Board hearing the Veteran testified to injuring his knee in 2005 during a temporary duty assignment (TDY) in Puerto Rico. The statements are inconsistent with each other. The Veteran applied for benefits in February 2014 and alleged an in-service injury and treatment in the 2015 NOD. However, during the Board hearing he alleges an unreported injury during a TDY in Puerto Rico. The Board is of course cognizant of possible self-interest which any veteran has in promoting a claim for monetary benefits. While the Board must consider all competent lay assertions, in determining the credibility of such assertions, the Board may properly consider the personal interest a claimant has in his or her own case. See Pond, 12 Vet. App. at 345; and see Cartright, 2 Vet. App. at 25 (interest may affect the credibility of testimony). Additionally, military personnel records do not reflect a line of duty determination for a TDY incident while in Puerto Rico. In summation, and for the reasons set forth above, the weight of the competent and credible lay and medical evidence weighs against the claim. Accordingly, service connection for a left knee strain is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.