Citation Nr: 21003424 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-39 967 DATE: January 21, 2021 ORDER Entitlement to service connection for arthritis of the left knee is denied. Entitlement to service connection for arthritis of the right knee is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s left knee arthritis began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s right knee arthritis began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for arthritis of the left knee have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for arthritis of the right knee have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) in the Army National Guard from May 1976 to September 1976 and from November 1990 to June 1991. The Veteran and his wife appeared at a hearing before the undersigned Veterans Law Judge in September 2017. A transcript of that hearing is of record. In November 2018, the Board remanded the following issues for additional development: entitlement to service connection for arthritis of the left and right knee and entitlement to service condition for a skin condition of the left and right foot. In a June 2020 rating decision, the RO granted the Veteran’s service connection claims for tinea pedis left and right foot. As these grants represent full grants of benefits sought on appeal, the service connection claims for a skin condition of the left and right foot are no longer before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). With respect to the Veteran’s service connection claims for his bilateral knees, the Veteran underwent a VA examination in September 2019. Therefore, the Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease such as arthritis is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, as the presumption regarding chronic disease is not applicable to periods of ACDUTRA, 38 C.F.R. § 3.309(a) does not apply to the Veteran’s service connection claims for his bilateral knee arthritis. See Smith v. Shinseki, 24 Vet. App. 40 (2010) (discussing the presumption regarding chronic diseases and stating that “a claimant whose claim is based on a period of active duty for training can never be entitled to the presumption of service connection”). Gulf War Syndrome Compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. A “qualifying chronic disability” includes (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C.§1117(g); 38 C.F.R.§3.317(b). The chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 C.F.R. § 3.317(a)(1)(ii). Effective December 29, 2011, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2016. See 76 Fed. Reg. 81, 834, 81, 836 (2012). However, as the Veteran’s bilateral knee condition have a known clinical disease, arthritis and total knee replacement in the bilateral knees, these provisions do not apply. 1. Entitlement to service connection for arthritis of the left knee is denied; entitlement to service connection for arthritis of the right knee is denied. The Veteran contends that he has arthritis in the bilateral knees that are due to his duties as a truck driver in military service. See September 2017 hearing. First, the Veteran has diagnoses of bilateral ostearthritis and total knee replacement in his bilateral knees. See September 2019 VA examination. Given the Veteran’s diagnosis of bilateral knee arthritis, his knee condition has a diagnosis, and thus, cannot be presumed to be a chronic qualifying disability under 38 C.F.R. § 3.317. Accordingly, service connection based on Persian Gulf War exposures is not warranted. 38 U.S.C.§1117; 38 C.F.R.§3.317. However, service connection on a direct basis can still be established, and based on his bilateral knee diagnoses, the first element of service connection, a diagnosis, has been met. 38 C.F.R. § 3.303. Second, as to an in-service incurrence, at the September 2017 hearing, the Veteran testified that he believes his arthritis is related to his truck driving in service, to include climbing in and out of the truck as well as unloading it. The Veteran’s military occupational specialty (MOS) as a truck driver is also reflected in his DD-214. As his MOS is consistent with his lay statements regarding his duties as a truck driver, the Board finds the Veteran’s lay statements competent and credible. Thus, his statements satisfy the second element of service connection, an in-service incurrence. Therefore, the remaining issue is whether a nexus may be established. With respect to a nexus, the November 2019 VA examiner concluded that the Veteran’s bilateral knee condition in his knees was less likely than not (less than 50 percent probability) incurred in or caused by a claimed in-service injury, event, or illness. The examiner noted that he reviewed the Veteran’s lay statements of climbing in and out of as well as unloading trucks in service. However, a review of the Veteran’s medical records showed no complaints of knee pain while active in the service. The examiner also noted that there were no x-rays of the bilateral knees during service showing evidence of arthritis. Therefore, the examiner reasoned that the Veteran’s left and right knee arthritis was less likely than not (less than 50 percent probability) incurred in or caused by a claimed in-service injury, event, or illness. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his bilateral knee arthritis is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. While the Veteran is competent to report observable symptoms such as pain, the cause of that pain is not something that can be determined by mere observation. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board the most probative evidence of record, the VA examiner’s opinion, weighs against a finding that the Veteran’s bilateral knee osteoarthritis is related to his active service. Lacking a nexus, entitlement to service connection for arthritis of the left and right knee is not warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.