Citation Nr: 21003594 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-29 912 DATE: January 22, 2021 ORDER Service connection for osteoarthritis of the left knee is denied. Service connection for osteoarthritis of the right knee is denied. FINDINGS OF FACT 1. The Veteran has a present diagnosis of osteoarthritis of the left and right knee. 2. There was an in-service left knee injury. 3. Symptoms of left knee osteoarthritis were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation. 4. The current left knee osteoarthritis is not related to the in-service left knee injury. 5. There was no in-service right knee injury, disease, or event. 6. Symptoms of right knee osteoarthritis were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee osteoarthritis, to include on a chronic disease presumptive basis, are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for right knee osteoarthritis are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from April 1975 to July 1975. The instance case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied service connection for left and right knee osteoarthritis. The case has been before the Board of Veterans’ Appeals (Board) previously. In October 2019, the Board remanded for nexus opinions that were based on an understanding of an in-service knee injury. The Board finds that there has been substantial compliance with the terms of the October 2019 remand and that the case is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a November 2016 Board hearing. The hearing transcript has been associated with the record. The Veterans’ Claims Assistance Act of 2000 (VCAA) enhanced VA’s duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board finds that the duties to notify and assist have been met. Service Connection Legal Authority Direct Service Connection Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. Chronic Disease Presumptive Service Connection The Veteran was diagnosed with osteoarthritis, which is a “chronic disease” for purposes of presumptive service connection (38 C.F.R. § 3.309(a)); accordingly, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a); Walker, 703 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in-service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and chronic diseases 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. While the disease need not be diagnosed within the presumption 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. 38 U.S.C. § §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 1. Service Connection for Osteoarthritis of the Left Knee The Veteran contends that he is entitled to service connection for osteoarthritis of the left knee because he notes an injury during service that he asserts led to his discharge and has caused present-day trouble. After a review of all the evidence, lay and medical, the Board finds that service connection for osteoarthritis of the left knee is not warranted. Preliminarily, there is a diagnosis of osteoarthritis of the left knee. See December 2019 VA examination; April 2012 x-ray. Accordingly, the present disability requirement for service connection is met. There is also evidence of an acute in-service left knee injury that did not result in either chronic symptoms or other disability. The Veteran testified that he injured his left knee during basic training and that it was diagnosed as a twist. The service treatment (medical) records related to the left knee show treatment during the month of June 1975, but not for other times, suggesting the symptoms were not chronic. The first, on June 10, 1975, states that there were complaints of left knee pain and diagnoses a strain. The second, on June 12, 1975, states that the Veteran was still complaining of left knee pain. The third, on June 27, 1975, says left knee pain that is positive for effusion and chondromalacia, with an impression of effusion, and asks if the Veteran is fit for infantry. On the same date, the orthopedics clinic said to return on June 30, 1975 for a P-2 profile, with an impression of effusion. While the acute symptoms existed during service in June 1975, the weight of the evidence shows that the knee symptoms were not chronic in service. The symptoms appeared a few times during service in June 1975. The Veteran testified at the Board hearing that he was told that he could change Military Occupational Specialty from infantryman to cook or he could be discharged from the army. The Veteran chose discharge. The weight of the lay and medical evidence shows that knee symptoms were not continuous since separation, and the symptomatology did not manifest to a compensable degree within one year of service separation. Although the Veteran testified that he sought medical treatment shortly after discharge, he also reported that the pain really got worse when he was age fifty. See May 2010 Treatment Record. Regarding the theory of direct service connection, although there was an in-service injury and there is a present disability, the weight of the evidence shows that the present left knee osteoarthritis is not etiologically related to the left knee in-service injury. The evidence shows a non-chronic injury, treatment, and symptoms that were treated and resolved during service in June 1975. A September 2020 VA assessed that the medical records showed no significant knee injury that would result in a long-term or chronic knee condition while on active duty. Rather, the in-service injury was a soft tissue injury to the left knee, which resolved without further medical sequelae. The examiner further reasoned that the next diagnosis was 2013, namely, bilateral knee osteoarthritis. The VA examiner opined that the most likely cause of the bilateral knee arthritis is the natural aging process of an obese individual, as obesity adds to the mechanical stress on the bodies musculoskeletal system, a pre-military service surgery to the left knee, or a post-military service injury. Given the negative nexus opinion between the current left knee osteoarthritis and the in-service left knee injury, in the context of the accurate facts of this case that do not show chronic or continuous symptoms, service connection for left knee osteoarthritis, under all theories of service connection, must be denied. 2. Service Connection for Osteoarthritis of the Right Knee The Veteran also claimed service connection for osteoarthritis of the right knee; however, he asserts this is due to the left knee osteoarthritis rather than to any event of service. As such, the Veteran has not raised a theory of direct service connection. The evidence shows a current diagnosis of osteoarthritis of the right knee. See December 2019 VA examination; April 2012 x-ray. Accordingly, the present disability requirement for service connection is met. After a review of all the evidence, lay and medical, the Board finds that the Veteran has not raised a theory of direct service connection. The Veteran did not testify to any in-service injury, disease, or event to the right knee. In light of the Board’s findings in this decision, the theory of secondary service connection for osteoarthritis of the right knee (as due to the left knee) is not warranted as a matter of law. The Veteran contends that the right knee osteoarthritis is due to overcompensation for the left knee osteoarthritis. The record does not reflect a right knee injury, disease, or event, or even symptoms. As service connection has been denied for a left knee disability, there is not primary disability to which secondary service connection may be related. The Veteran’s main assertion, as noted, is that the right knee osteoarthritis is due to overcompensation for the left knee osteoarthritis. This theory of secondary service connection (38 C.F.R. § 3.310) must fail as the left knee osteoarthritis is not service connected. Accordingly, the claim for service connection for right knee osteoarthritis must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.