Citation Nr: 21002884 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 11-05 022 DATE: January 19, 2021 ORDER Entitlement to service connection for a right knee disability is denied. FINDINGS OF FACT 1. The evidence of record weighs against a finding that any current right knee disability was incurred in, or otherwise caused by, his period of active service. 2. The evidence of record weighs against a finding that any current right knee disability was caused, or aggravated, by any service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the Marine Corps from December 1989 to September 1990, and subsequent service in the Army Reserve. The Veteran’s claim was previously remanded for additional development by the Board of Veterans’ Appeals in August 2015, July 2017, and July 2019. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for a right knee disability In July 2007, the Veteran filed a claim for service connection for a right knee disability, which he contended was due to his service-connected left knee condition. While the evidence demonstrates that the Veteran has a current diagnosis of a right knee disability, the Board finds that the evidence of record does not establish a nexus between his right knee disability and any period of service (or any service-connected disability); accordingly, the Board finds that service connection for a right knee disability must be denied. The Veteran’s service treatment records from his active duty service are silent for any right knee complaints. The Veteran’s examination prior to separation from active service in June 1990 was normal. The Veteran also denied a history of a “trick” or locked knee on a Report of Medical History completed at that time. The Veteran, however, reported complaints of right knee symptoms while serving in the Army Reserve in June 1991. He noted “popping” of the right knee and the clinician reported that the Veteran provided a history of knee problems. The Veteran was noted to demonstrate pain to the touch of the medial aspect of the right knee. An assessment of a sprained ligament of the right knee was provided. (Treatment records also note that the Veteran sought treatment for knee symptoms in March 1992; however, a May 1992 orthopedic surgery note reports that the March 1992 symptoms were related to his left knee.) The Veteran was provided a VA examination in January 2011 regarding his right knee condition. The Veteran reported recurrent pain in his right knee that began in 2006. He stated that he did not receive treatment for a right knee condition during his active service, but that he believed his condition was the result of his service-connected left knee disability. The examiner provided a diagnosis of patellofemoral syndrome. The examiner opined that the Veteran’s right knee disability was less likely than not caused by or the result of the Veteran’s service-connected left knee chondromalacia. The examiner explained that the Veteran was grossly overweight which is the most probable cause of his patellofemoral syndrome of the right knee. In December 2016, additional medical opinions were obtained regarding the etiology of the Veteran’s right knee disability. The 2016 examiner opined that it is less likely than not that the Veteran’s claimed right knee condition related to and/or aggravated by military service. The examiner stated that the 1991 and 1992 presentations were clinically consistent with acute, self-limited and transient events that resolved and allowed the Veteran to continue his Marine Corps training. The examiner specifically noted that the enlistment and separation examinations indicated no trick knee, no locked knee, no foot and/or leg trouble, and no bone, joint or other deformity; therefore, it is less likely than not that the right knee condition was chronic, permanent but rather an acute, transient event that allowed the Veteran to continue his Marine Corps training until his left knee event that required surgical intervention and extended physical therapy. The 2016 examiner also provided a negative opinion regarding whether the Veteran’s claimed right knee disability is due to his service-connected left knee disability. The examiner stated that the current orthopedic, military and rehabilitation medicine literature lacks sufficient, clinical evidence to support a nexus between a contralateral (right) knee condition to a disability of the opposite extremity. The examiner stated that anatomical and biomechanical literatures agree that right and left knees function as independent structures separated by the pelvic girdle and hip joint apparatus, as well as, with powerful thigh and leg musculature that accommodate for distal extremity changes in biomechanical function and gait cycles; as such, the examiner opined that it is less likely than not that the Veteran’s claimed right knee disability to his service-connected left knee disability. The examiner stated that these same independent structures make it less likely than not that the Veteran’s right knee disability has been aggravated by any service-connected left knee disability. In October 2018, another VA medical examiner provided opinions regarding the etiology of the Veteran’s right knee disabilities. The examiner noted that the Veteran has been diagnosed with multiple right knee conditions during the appeal period, including chondromalacia, degenerative osteoarthritis, meniscal chondrocalcinosis, and patellofemoral pain syndrome. The examiner opined that none of those conditions at least as likely as not manifested during active duty, or are otherwise related to an injury incurred during active duty, active duty for training, or inactive duty for training, to include his documented in-service knee complaints including June 1991 and March 1992. The examiner stated that this opinion was based upon the fact that all of the present diagnoses developed more than 10 years after the Veteran left military service. The examiner stated that when there is first documentation of complaints related to the right knee in 2008, the veteran is listed as weighting 340 lbs., which is the most probable cause of all his right knee conditions. The October 2018 examiner also opined that the Veteran’s right knee disabilities were less likely than not due to his service-connected left knee condition. The examiner stated that all of the Veteran’s right knee conditions are likely due to his excessive weight. The examiner supported this opinion by noting that obesity is a major contributing factor in the development of knee joint degeneration, meniscal degeneration, patellofemoral pain and knee chondromalacia, is a fact widely supported by the medical literature and extensively discussed in all orthopedic and internal medicine textbooks. 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, 1131; 38 C.F.R. §§ 3.303, 3.304. “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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to diseases with “unique and readily identifiable features” that are “capable of lay observation.” See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (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 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Unfortunately, the Board finds that the weight of the evidence of record is against a finding that any right knee disability present during the appeal period was caused by any period of the Veteran’s service, or any service-connected disability. Initially, the Board notes that the Veteran has been diagnosed with arthritis of the right knee, which is a “chronic” disease under VA law. Service connection may be awarded on a presumptive basis if a chronic disease manifests itself and is identified as such in service, or within one year of separation from active service, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). The continuity of symptomatology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection for the chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker, at 1331. While the Veteran has current diagnosis of arthritis of the right knee, service connection for this condition is not available under 38 C.F.R. § 3.309 (a) as the credible evidence of record weighs against a finding that the Veteran had arthritis during service or within a year of separation from service. While the Veteran reported right knee symptoms in June 1991, he did not report additional complaints until years later. The Veteran’s treatment records associated with the claims file do not report that he sought treatment for recurrent knee symptoms until at least 2007, approximately 15 years after separation from his active service. Moreover, the Veteran has not reported onset of right knee symptoms until at least 1994 or 1995 several years after separation from service. See 2015 Hearing Testimony, p.4. As the evidence does not indicate that the Veteran’s arthritis was incurred during active service or within a year of separation from active service, the Board finds that service connection pursuant to 38 C.F.R. § 3.303 (b) is not warranted. Service connection for a right knee disability, however, would still be warranted based upon findings that the Veteran’s current right knee disabilities are due to an injury, event, or disease during his period of active service. Unfortunately, the Board finds that the most probative evidence of record regarding the etiology of the Veteran’s right knee disabilities is the opinion provided by the October 2018 VA examiner. The examiner opined that the Veteran’s current right knee disabilities were less likely than not due to any period of his service, including his active service and the June 1991 injury. The examiner supported this opinion by noting that the Veteran's current knee disabilities were not diagnosed until approximately 10 years after separation from service. Further, the examiner stated that the most probable cause of all his right knee conditions was the Veteran’s weight as he was 340 lbs. at the time he sought treatment for his right knee symptoms. The Board finds that the examiner's opinion considered all of the pertinent evidence of record, to include the lay statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Further, the competent evidence of record does not support a nexus between any current right knee disability and any activity of the Veteran's active service. The Board notes that the Veteran has not contended his right knee disabilities are directly due to his period of service and has not reported that any medical professional has informed him of such a connection. Without any evidence indicating a relationship between the Veteran’s current right knee disabilities and his period of service, the Board finds that service connection on a direct basis must be denied. See 38 C.F.R. § 3.303. Finally, the Board finds that the evidence of record weighs against a finding that any current right knee disability is due to any service-connected disability, including his service-connected left knee disabilities. The Board finds the opinion provided by the December 2016 examiner to be of the most probative value regarding secondary service connection. The examiner explained that current orthopedic and rehabilitation medicine literature lacks sufficient, clinical evidence to support a nexus between a contralateral (right) knee condition to a disability of the opposite extremity. Based upon review of this literature and the Veteran’s medical record, the examiner opined that the Veteran’s right knee disabilities are less likely than not due to his service-connected left knee disabilities. This opinion was supported by the opinion provided by the October 2018 examiner as well. As such, the Board finds these opinions to be of the greatest probative weight regarding whether the Veteran’s right knee disabilities are less likely than not due to his service-connected left knee disabilities. The Board has considered that the Veteran’s obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). VAOPGCPREC 1-2017 (Jan. 6, 2017). In order to establish service connection on this basis, three criteria must be met:(1) the service-connected disease or injury must have caused the veteran to become obese; (2) the obesity as a result of the service connected disability must be a substantial factor in causing the disability for which service connection is sought; and (3) whether the disability for which service connection is sought would not have occurred but for obesity caused by the service connected disease or injury. The Board, however, finds that the evidence of record weighs against a finding that any service-connected disability caused the Veteran to become obese. Particularly, an October 2019 VA examiner opined that the Veteran’s obesity was not due to his service-connected left knee. The examiner noted that that obesity is caused by multiple factors including diet and exercise. The examiner noted that the Veteran could perform exercise that doesn’t involve the left knee and that the Veteran’s caloric intake could be regulated to prevent obesity. Accordingly, the examiner opined that it was less likely than not that the Veteran's service-connected left knee disorders caused him to become obese. The evidence also indicates that the Veteran reported weight gain in December 2007 due to working the night shift and eating food for comfort due to stressful events in his life. As the evidence does not support that the Veteran’s obesity is due to a service-connected disability, service connection for a right knee condition with obesity as an intermediate step is not warranted. See 38 C.F.R. § 3.310; VAOPGCPREC 1-2017. To the extent that the Veteran has asserted that his right knee disabilities are due to his service-connected left knee disabilities, the Board finds that such an opinion is of a complex medical nature and beyond the scope of a lay opinion. See Jandreau, at 1376-77. The Veteran has not contended, and the evidence does not show, that he has the medical expertise to provide such an opinion. The Board notes that the Veteran has reported that that medical professionals have informed him that his right knee disability is due to his service-connected left knee. In his May 2015 Board hearing, the Veteran stated that his doctors had informed him that he’s bearing all the weight on his right knee due to his arthritis in his left knee, which has resulted in loss of cartilage in the right knee. See 2015 Hearing Transcript, p.8. The Veteran is competent to report what has been said to him; however, the Board finds the opinion provided by the December 2016 and October 2018 examiners to be of greater probative value. Sparse reasoning was provided to support this opinion, which reduces the probative value of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The December 2016 and October 2018 examiners each reported consideration of current medical research regarding the relationship between opposite knees and discussed how it required contemplation of the working of the hip joints, the pelvic girdle, and the thigh muscles. As these examiners clearly considered this research and factored it into their more detailed rationales, the Board finds their opinions to be of greater probative value. The Board also finds probative the opinions of the December 2016 and October 2018 examiners that the Veteran’s service-connected left knee condition has not aggravated his right knee disabilities. The Board notes that the Veteran has not provided any competent evidence that his service-connected left knee condition have aggravated his right knee disabilities. The Veteran’s VA and private treatment records associated with the claims file do not otherwise report that the Veteran’s right knee disabilities have been caused, or aggravated, by his service-connected left knee disabilities. In sum, the Board finds that the weight of the competent evidence of record does not support that the Veteran’s service-connected left knee disabilities have caused, or aggravated, his right knee disabilities present during the appeal period. See 38 C.F.R. § 3.310. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 58 (1990). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.M. Johnson, 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.