Citation Nr: 21002390 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-21 377 DATE: January 13, 2021 ORDER Service connection for right knee degenerative joint disease is denied. Service connection for left knee degenerative joint disease is denied. FINDINGS OF FACT 1. The Veteran did not undergo an in-service event, injury or disease as to his right knee degenerative joint disease. 2. The Veteran’s left knee degenerative joint disease was not incurred in or caused by service. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for right knee degenerative joint disease have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(d) (2019). 2. The criteria to establish entitlement to service connection for left knee degenerative joint disease have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303(b), (d), 3.309(a), 3.307(a)(3) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from April 1968 to April 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Muskogee, Oklahoma Regional Office (RO). In his May 2016 substantive appeal, the Veteran requested a Board hearing. In a February 2019 letter, VA notified the Veteran that he was scheduled for a Board hearing in April 2019. In a March 2019 statement, the Veteran requested that the hearing be canceled. The Veteran’s request for a Board hearing is withdrawn. 38 C.F.R. § 20.704(e) (2019). Service Connection – Right and Left Knee Degenerative Joint Disease Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). 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) (2019). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Degenerative joint disease, as arthritis, is a “chronic disease” listed under 38 C.F.R. § 3.309(a) (2019). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a “continuity of symptoms” after service is required to establish service connection. 38 C.F.R. § 3.303(b) (2019). Additionally, as a chronic disease, degenerative joint disease will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3) (2019). The Veteran contends that his right and left knee degenerative joint disease was caused by service. The claims will be denied because the Veteran did not undergo an in-service event, injury or disease as to his right knee degenerative joint disease and the Veteran’s left knee degenerative joint disease was not incurred in or caused by service. In an April 1968 mostly illegible service treatment record (STR), it appears that the Veteran underwent a left knee abrasion that resulted in swelling. The Veteran was treated with ointment and bandage wraps. STRs are otherwise silent for complaints or contemporaneous reports concerning the Veteran’s right knee. In his March 1971 pre-separation medical history report, the Veteran answered in the negative to the question of whether he then had, or once had a trick or locked knee and whether he had any illness or injury other than those already noted. In the Veteran’s March 1971 pre-separation medical examination report, no lower extremity abnormalities were noted. In an April 1971 service statement of medical condition, the Veteran reported experiencing no change in his medical condition since his then-most recent separation examination. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision). Dated approximately 43 years after his military service ended, a November 2014 VA treatment record reflects the Veteran’s report of experiencing bilateral knee pain and soreness. It was noted that the Veteran underwent a right knee arthroscopy approximately twenty years prior. A bilateral knee radiograph revealed tricompartmental degenerative changes. The Veteran was diagnosed with bilateral knee pain. A December 2014 VA treatment record reflects the Veteran’s report of experiencing bilateral knee pain and having undergone cortisone injections. The Veteran was diagnosed with bilateral knee degenerative joint disease. In an early January 2015 VA treatment record, the Veteran reported experiencing bilateral knee pain. He was diagnosed with bilateral knee degenerative joint disease. In a late January 2015 VA treatment record, the Veteran alleged having undergone two in-service right knee injuries: (1) in April 1968 during basic training, the Veteran fell onto gravel resulting in a right knee laceration and swelling, and (2) in 1969 during his deployment in Germany, the Veteran fell off the back of a truck resulting in a twisted right knee, swelling and pain. It was noted that the claimed second right knee injury was not reported. The Veteran is not credible as to his account of having undergone two in-service right knee injuries for several reasons. Contrary to the Veteran’s report of having undergone an April 1968 in-service right knee laceration, the highly probative April 1968 STR reflects the Veteran having undergone a left knee abrasion. STRs were silent for complaints or contemporaneous reports concerning the Veteran’s right knee. At service separation, the service medical examiner noted no lower extremity abnormalities, the Veteran answered in the negative to the question of whether he then had, or once had a trick or locked knee and whether he had any illness or injury other than those already noted. Moreover, in an April 1971 service statement of medical condition, the Veteran reported experiencing no change in his medical condition since his then-most recent separation examination. See Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than the history as reported by the veteran and that earlier statements are generally more trustworthy than later ones); see also Madden v. Gober, 125 F.3d 1447, 1481 (Fed. Cir. 2000). The January 2015 VA physician’s assistant diagnosed the Veteran with right knee degenerative joint disease and opined that the Veteran’s in-service right knee injuries “contributed” to the Veteran’s current right knee degenerative joint disease because immediate right knee swelling “potentially” indicated significant injury at that time. The VA physician’s positive etiology opinion concerning the Veteran’s right knee degenerative joint disease is of low probative value because the opinion was based on the Veteran’s incredible account of an in-service event, injury or disease pertaining to his right knee. Swann v. Brown, 5 Vet. App. 229, 233 (1993) (holding that the Board may reject a medical opinion because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion); see also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). In a May 2015 statement, the Veteran’s fellow service-member indicated having served with the Veteran in Germany and that the Veteran’s “knees were injured at the time he was stationed” in Germany. The service-member’s statement is not sufficient to substantiate the Veteran’s claimed in-service event, injury or disease as to his right knee because it is vague, inconsistent with the highly probative STRs and inconsistent with the Veteran’s contemporaneous report of not having experienced a trick or locked knee at service separation. Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable and clearly documented medical evidence); Curry, supra. In the May 2015 VA examination, the Veteran reported having undergone an in-service left and right knee injury: (1) in 1968, the Veteran fell onto his left knee resulting in a laceration/abrasion without swelling, and (2) in 1969, the Veteran twisted his right knee resulting in swelling and that he did not seek in-service treatment. The Veteran also reported having a long career as a firefighter post-service and that his knees began to hurt overtime. The VA examiner diagnosed the Veteran with bilateral knee degenerative joint disease. The examiner opined that the Veteran’s left knee degenerative joint disease was not caused by the in-service abrasion because the mechanism of the left knee injury would not result in an internal derangement; rather, it was caused by the Veteran’s age, genetic predisposition, elevated body mass index (BMI) and duties as a firefighter for approximately twenty years. The VA medical opinion is highly probative because the examiner had an accurate and complete understanding of the Veteran’s medical history and provided a medical conclusion with sufficient rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran’s left knee degenerative joint disease was not “chronic” and had not exhibited “continuity of symptomatology. The Veteran has submitted no competent evidence indicating that the Veteran’s April 1968 in-service left knee abrasion was a manifestation of his current left knee degenerative joint disease. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran also has not submitted competent evidence that his left knee degenerative joint disease manifested to a compensable degree within one year from the date of service separation. Although the Veteran reported having a long career as a firefighter and that his left knee began to hurt overtime, the Veteran is not competent to attribute his claimed left knee pain as a manifestation of his current left knee degenerative joint disease. Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed degenerative joint disease to continuous post-service knee symptoms); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the March 2019 brief, the Veteran through his representative, asserted that the Veteran’s STRs revealed an April 1968 in-service right knee injury and although the STRs had no documented 1969 in-service right knee injury, the Veteran was credible in his report of having undergone a second right knee injury while he was deployed in Germany. It was also asserted that reasonable doubt should be resolved in favor of the Veteran due to the two competing medical opinions as to the etiology of the Veteran’s bilateral knee disorder. As noted above, the April 1968 STR does not reflect a right knee injury and the Veteran’s account of having undergone an in-service right knee injury in 1969 is not credible. A preponderance of the evidence is against a finding that the Veteran underwent an in-service event, injury or disease as to his right knee degenerative joint disease and that the Veteran’s left knee degenerative joint disease was incurred in or caused by service. The Veteran is not credible as to his account of an in-service event, injury or disease as to his right knee degenerative joint disease. At service separation, no lower extremity abnormalities were noted, the Veteran answered in the negative to the question of whether he then had, or once had a trick or locked knee and whether he had any illness or injury other than those already noted. The Veteran is not competent to attribute his claimed left knee pain as a manifestation of his current left knee degenerative joint disease. The May 2015 VA examiner opined that the Veteran’s left knee degenerative joint disease was not caused by the April 1968 in-service left knee abrasion. Therefore, service connection is not warranted and the claims are denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.