Citation Nr: 21003491 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 15-03 470 DATE: January 21, 2021 ORDER Service connection for right knee degenerative joint disease (DJD) is denied. Service connection for left knee DJD is denied. FINDING OF FACT The Veteran’s current bilateral knee arthritis diagnoses were not incurred in service or diagnosed within the presumptive period after discharge. CONCLUSIONS OF LAW 1. The criteria to establish service connection for right knee DJD have not been satisfied. 38 U.S.C. §§ 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria to establish service connection for left knee DJD have not been satisfied. 38 U.S.C. §§ 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from July 1986 to June 1990. Military personnel records indicate the Veteran served in the Naval reserve from June 1990 to July 1994 and in the Army National Guard from August 1994 to November 2002. The case was remanded in March 2019 for evidentiary development. All actions ordered by the remand have been accomplished. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain disorders listed as “chronic” in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis, such as degenerative joint disease, is a “chronic disease” listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. 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. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. It is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for bilateral knee DJD The Veteran’s July 1986 report of medical at enlistment indicates he denied “trick” or locked knee. His clinical lower extremities evaluation was normal. On his June 1987 report of medical history for student pilot training, he again denied “trick” or locked knee. His clinical lower extremities evaluation was normal. In August 1987, the Veteran complained of left knee pain after twisting his left knee while playing flag football. On examination the Veteran’s left knee demonstrated mild tenderness and no effusion. The examiner diagnosed the Veteran with a mild MCL (medial collateral ligament) strain. The Veteran’s April 1989 report of medical history for commissioned officer training indicates he denied “trick” or locked knee. His clinical lower extremities evaluation was normal. The Veteran contends in November 1989 he injured his left knee during a field training exercise. The Veteran explained that he “smashed” his left knee into a ladder rung, that his left knee became severely swollen, and that he had to use crutches to ambulate for 2 weeks afterwards. Personnel records show the Veteran received a letter of appreciation for completing the course during that time frame, but there are no records that corroborate that the Veteran injured his left knee during the November 1989 course. On his April 1990 report of medical history at discharge, the Veteran denied “trick” or locked knee. His clinical lower extremities evaluation was normal. On the October 2001 report of medical history during his Army National Guard service, the Veteran denied knee trouble. Clinical examination found no musculoskeletal or lower extremity abnormalities, and the Veteran was assigned a “1” rating assessing for his lower extremities under the PULHES profile system, indicating that the Veteran’s lower extremity was then in a high level of fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); (observing that the “PULHES” profile reflects the overall physical and psychiatric condition of the veteran’s capacity and stamina (“P”); upper extremities (“U”); lower extremities (“L”); hearing (“H “); eyes (“E”) and psychiatric condition (“S”) assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). These medical records are highly probative both as to the Veteran’s subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran’s then-state of physical fitness and are akin to statements of diagnosis or treatment. 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); see also LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803 (4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). In September 2011 a private orthopedic physician evaluated the Veteran’s bilateral knees. The Veteran reported “numerous” injuries during service, including twisting his left knee during physical training and hitting his knee on a ladder. The Veteran reported his left knee would give out when he climbed stairs, that they both “snapped,” and that he did not have a history of a right knee injury. On examination the Veteran’s left knee demonstrated full extension, mild effusion, no evidence of instability, with a positive meniscus pathology test. The right knee demonstrated mild effusion and no instability. X-rays revealed mild bilateral arthritis of the patellofemoral joints. The examiner diagnosed the Veteran with bilateral knee pain, left knee torn meniscus, bilateral knee effusion, bilateral internal derangement, and bilateral mild osteoarthritis. Subsequent September 2011 MRI imaging indicated right knee degenerative joint disease (DJD), left knee mild proximal patellar tendinosis, and bilateral chondromalacia patellofemoral with small erosion apex of the femoral trochea. In October 2011 the Veteran’s treating physician reviewed the imaging, diagnosed the Veteran with bilateral knee osteoarthritis, and stated that it was “certainly possible” that the Veteran’s military service “contributed” to his bilateral knee arthritis. This opinion is speculative and does not provide the Board with sufficient analysis to consider and weigh the examiner’s opinion. There is no evidence the physician reviewed the Veteran’s service treatment records. See Elkins v. Brown, 5 Vet. App. 474 (1993); Swann v. Brown, 5 Vet. App. 229 (1993) ( a diagnosis “can be no better than the facts alleged by the appellant.”). Apart from evidence that the examiner’s assessments were made on the basis of primarily the veteran’s account, the facts underlying the assessment are not substantiated by the record. Sanchez-Benitez v. West, 13 Vet. App. 282, 286 (1999) (medical evaluation that is merely a recitation of a veteran’s self-reported and unsubstantiated history has no probative value In an October 2011 statement, the Veteran described the 1989 incident where he injured his left knee on a ladder. He reported pain and swelling, that he was given medical attention in the field, and that he used crutches for two weeks after the incident. He further reported that since service he had knee problems that have progressively worsened. At the November 2011 VA medical examination, the examiner noted the 2011 diagnoses of bilateral DJD, bilateral chondromalacia patellofemoral with small erosion apex of the femoral trochea, and left knee mild patellar tendinosis. The Veteran reported the 1987 incident when he twisted his knee playing football, the 1989 incident where he slipped on a ladder, and that he had constant pain, that both knees “give out,” that both demonstrated occasional locking, and that he had difficulty climbing stairs. The examiner opined the Veteran’s current left knee condition was less likely than not incurred in service because there was no evidence of the 1989 ladder incident in the medical records, the Veteran’s discharge examination indicated normal lower extremities, and that the Veteran’s knee condition was commonly caused by overuse or degenerative changes of age. The examiner did not opine on the Veteran’s right knee. In December 2012, the Veteran’s treating orthopedic physician Dr. S.H stated that he had reviewed the Veteran’s service medical records and opined that the Veteran’s bilateral osteoarthritis was at least as likely as not secondary to his military service. This opinion is also conclusory and does not provide the Board with sufficient analysis to consider and weigh his opinion. The physician does not provide a factually-based explanation for his conclusion. For example, the physician does not address the lack of treatment between discharge and 2011, or explain why the Veteran’s right knee arthritis diagnosis was incurred in service given the lack of an in-service incident. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007) (holding that “a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion”). In a January 2014 statement, the Veteran’s friend G.F. reported that during the Veteran’s active service the Veteran communicated that he had experienced at least two left knee injuries during his naval enlistment. He also stated that the Veteran complained of left knee pain after discharge, that he witnessed the Veteran walk with a limp, and that in the past few years the Veteran also complained of right knee pain. These lay statements are competent regarding their observations of the Veteran’s complaints of knee pain and difficulties walking, and to establish the presence of observable symptomatology, including frequency. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Barr v. Nicholson, 21 Vet. App. 303, 307-8 (2007). While also presumed credible, these observations are not competent to diagnose the Veteran with a knee disability nor link the Veteran’s complaints to his service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In January 2015, the Veteran underwent another MRI for his left knee. His private orthopedic physician Dr. K.H. noted that the Veteran’s bilateral knees were “unchanged” from his prior visit. The MRI revealed moderate chondral degeneration, no meniscal tear or acute ligament injury, and mild stable proximal patellar tendinosis. In an accompanying statement, Dr. K.H. stated he reviewed the Veteran’s military medical and personnel records, noted the Veteran’s August 1987 left knee injury, and explained that the Veteran’s current left knee condition is consistent with a gradual progression of his in-service August 1987 injury. He opined that given the Veteran’s extreme physical anti-terrorist team training and exercises, which required climbing in and out of helicopters, jumping off helicopters, and running, jumping, and crawling on his hands and knees, the Veteran’s bilateral knee osteoarthritis was at least as likely as not secondary to his military service. This opinion is again conclusory and of low probative value. It does not take into account the Veteran’s post-service medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007). For example, it does not address the Veteran’s October 2001 clinically normal lower extremities evaluation during National Guard service or that the Veteran did not seek medical treatment for his bilateral knee conditions until over 20 years after discharge from active service. In March 2015 the Veteran’s parents submitted a joint statement that they recalled receiving a letter from the Veteran stating that he had sustained a left knee injury during physical training. They also reported that the Veteran complained of knee pain in other letters and on phone calls. After he was discharged his mother witnessed the Veteran elevate and ice his left knee. The Veteran told his mother he had knee pain due to injuries he sustained during service. His parents also recalled witnessing the Veteran have difficulty climbing and descending stairs, that he walked with a limp, that he favored his left leg, and that he could no longer kneel during church services. In a February 2016 statement, M.H. reported that during his brief tenure as the Veteran’s commander at the Lapeer, Michigan, naval recruiting station, the Veteran reported that he could not climb the stairs to the second floor office because he injured his left knee at his duty station in Guam. He also stated that in 1994 the Veteran visited him in California, and that as he and the Veteran began running on a quarter mile lap course the Veteran stopped, bent over and grabbed his left knee, stating that it was hurting him too much to continue. The service member recalled that he was surprised the Veteran’s left knee continued to bother him. As noted above, these lay statements are competent regarding their observations of the Veteran’s complaints of pain and his difficulties with walking, limping, kneeling and climbing and descending stairs. While these observations establish the presence of observable symptomatology, including frequency, they are not competent to diagnose the Veteran with a knee disability nor to provide a probative medical nexus to service. In an August 2018 statement, the Veteran’s long-time friend M.B. reported that she received letters from the Veteran that he injured his left knee in 1987, that after his discharge from service she noticed that he walked with a limp, and that he favored his left knee. She further reported that the Veteran told her he had two knee injuries during service while stationed in Guam. She stated that over the past few years she had also noticed the Veteran complain of right knee pain and witnessed him have difficulty with climbing stairs and kneeling. At the August 2018 Board hearing, the Veteran testified to the 1987 and 1989 injuries to his left knee. He also reported that he did not have health insurance after active service and therefore did not receive medical attention for his left or right knee but instead managed the pain by icing his knee and taking over-the-counter pain relief medication. As noted above, these lay statements are competent regarding their observations of the Veteran’s complaints of pain and difficulties walking, climbing stairs and kneeling, and to establish the presence of observable symptomatology, including frequency, but are not competent to diagnose the Veteran with a knee disability nor link the Veteran’s knee condition to his service. Subsequent VA treatment records indicate the Veteran complained of knee pain and reported that he received steroid injections into his knees from his private orthopedic physician. The preponderance of the evidence is against finding service connection for bilateral knee disabilities. There is no probative medical evidence that indicates the Veteran’s current bilateral knee arthritis diagnoses were incurred in service or diagnosed within the presumptive period after discharge. The Board notes the Veterans’ contention that his orthopedic physician’s opinion should carry more weight than the November 2011 VA examiner. However, the orthopedic physician’s opinions did not address relevant medical evidence that the Veteran did not present evidence of bilateral knee arthritis at his October 2001 medical examination during his National Guard service, more than 10 years after service. In comparison, the November 2011 medical opinion is highly probative. The examiner reviewed the record for any fact-based objective evidence of symptoms related to left or right knee arthritis during and after service, and considered the Veteran’s lay statements regarding the onset and frequency of symptoms, the circumstances of the Veteran’s military service, and his post-service medical evaluations for the National Guard. (Continued on the next page)   The Veteran has continuously asserted throughout the appeal that his current bilateral knee disabilities are a result of his in-service left knee incidents. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, and those of other lay individuals, the Veteran is not competent to offer opinions as to the etiology of his current bilateral knee disability. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Arthritis requires specialized training for determinations as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnoses and their relationship to his service. Since neither of the Veteran’s bilateral knee disabilities were incurred in service nor diagnosed within the presumptive period after discharge, the claim is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.