Citation Nr: 21003661 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-28 566 DATE: January 22, 2021 ORDER Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to a rating in excess of 10 percent for residuals of a left shoulder extrinsic muscle injury (group I), is remanded. FINDING OF FACT The Veteran’s left knee disability did not manifest in service or within one year thereafter and is not causally or etiologically related to his military service. CONCLUSION OF LAW The Veteran’s left knee disability was not incurred in active service, nor is arthritis presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1992 to September 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 Board decision, the previously denied issue of entitlement to service connection for a left knee disability was reopened, and remanded for further development. The case has now returned to the Board for adjudication. In August 2020 correspondence, the Veteran’s representative asserted that the Veteran should be provided with an additional examination for his left shoulder disability, which has been addressed in the remand section of this decision. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran contends that his left knee disability is related to severe pain sustained while playing football during service. See July 2014 Attorney Correspondence. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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 chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, 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. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for a left knee disability is not warranted. With regard to whether arthritis was shown during service or within one year of separation, the Board finds that such a diagnosis was not shown. An April 2014 private treatment record revealed that X-rays showed the Veteran had mild medial joint line osteoarthritis, as well as mild patellofemoral joint arthrosis. September 1993 service treatment records show that the Veteran reported having left knee pain once a day. In his August 1993 separation Report of Medical History, the Veteran reported having a “trick” or locked knee, however, the separation examination report did not note any abnormalities of the left knee. Moreover, in a December 1994 VA examination, the examiner noted that while the Veteran had jumped improperly during service which caused some musculoskeletal pain in the left knee, the knee pain had largely resolved, and the knee was within normal limits. A December 1994 VA radiology report also noted that there was no evidence of fracture, dislocation, and destructive process, and that soft tissues were unremarkable. To determine that a chronic disease was “shown in service,” the disease identity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1331. While left knee pain was noted during service, the Veteran’s service treatment records do not suggest that he had left knee arthritis. Although, the Veteran reported having a “trick” or locked knee on his August 1993 Report of Medical History, there is evidence that the Veteran did not have arthritis during service, as his lower extremities were reported to be normal on clinical examination at separation in August 1993. Notably, the August 1993 examiner recorded other musculoskeletal disabilities on the separation examination, however, there was no mention of any left knee disability. Thus, the available evidence does not show that the Veteran had arthritis or any other left knee disability at the time he separated from service. In addition, arthritis must be objectively confirmed by X-ray findings. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The record contains no indication that a left knee disorder manifested to a compensable degree within one year of the Veteran’s military service. Rather, the December 1994 radiology report specifically confirmed that there was no evidence of fracture, dislocation, and destructive process, and that soft tissues were unremarkable. The first objective evidence of arthritis was documented many years after service. Therefore, chronicity is not established in service or within a year of separation. The Board acknowledges the Veteran’s lay statements that he has had left knee symptoms since service. While lay persons are generally not competent to offer evidence which requires medical knowledge, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he has or had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, if submitted, when a veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan, 451 F.3d at 1335; 38 C.F.R. §§ 3.303 (a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between 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 also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran is competent to state that he has a left knee disability that started in service and has been continuous since that time. However, his allegations regarding the continuity of his left knee disability are inconsistent with the contemporaneous record. As previously discussed, in the December 1994 VA examination, the examiner noted that the Veteran’s left knee pain had largely resolved, and X-ray findings revealed no abnormalities. Rather, VA and private treatment records show that the Veteran’s current left knee disability began in 2002. In an August 2002 VA treatment record, the Veteran reported having pain in both of his knees, and that he had torn his right medial meniscus for which he had to undergo surgery. In an April 2003 VA treatment record, the Veteran reported that his left knee pain onset in October 2002 when he underwent meniscus repair. More importantly, in an April 2014 private treatment record, the Veteran indicated that he was a welder and that he attributed the majority of his knee pain to his work. For these reasons, the Board finds that the Veteran’s statements are not sufficiently reliable to establish in-service onset of a chronic left knee disability or continuity of symptomatology since his separation from service. In addition to the lack of evidence showing that a chronic left knee disability manifested during active duty service or within close proximity thereto, the evidence of record does not relate the Veteran’s current left knee disability to his military service. In a January 2020 VA examination, the examiner noted the Veteran had diagnoses of a left knee meniscal tear and patellofemoral pain syndrome. The examiner opined that it was less likely than not that the Veteran’s left knee disability, to include any residuals of his meniscal tear, was due to service. The examiner explained that during service, the Veteran’s condition was acute and there was no evidence of chronicity of care. The examiner further explained that by all records, the left knee injury that occurred during service in 1993 was an acute injury, and no residuals were reported in the records, and no left knee condition was mentioned on the discharge examination. The Veteran had also reported having a work injury, six years after the original acute left knee injury, that required laparoscopic repair of the meniscal tear. The examiner also indicated that upon examination of the left knee, there were no signs of residual problems. The Board finds the January 2020 VA medical opinion to be probative regarding the nexus between the Veteran’s in-service reports of knee pain and his current knee disability, as it is based on a review of the claims file, to include the Veteran’s own contentions and the medical evidence, and an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no medical opinion otherwise, relating the claimed disorder to the Veteran’s military service. The Board acknowledges the Veteran’s contentions that his left knee disability is related to service. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the diagnosis and etiology of his left knee disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that he is competent to provide such an opinion, the Board finds that the January 2020 VA examiner’s opinion is more probative, as it was provided by a medical professional with knowledge, training, and expertise, and is supported by a rationale based on such knowledge. The examiner also reviewed the claims file and considered the Veteran’s reported history and lay statements. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for a left knee disability. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Gilbert, 1 Vet. App. 49, 53. Accordingly, the Board concludes that service connection is not warranted. REASONS FOR REMAND The Veteran underwent an examination for residuals of his left shoulder muscle injury in January 2020. In August 2020 correspondence, the Veteran’s representative raised the argument that the Veteran’s shoulder disability is not muscular alone, but also encompasses the joint, as the original in-service injury was a separation of the acromioclavicular (AC) joint. The representative argues that the January 2020 VA examination is inadequate, as it only addresses the muscular aspect of the disability and does not address any orthopedic issues. Notably, in an April 2017 VA examination for the left shoulder, the Veteran was noted to have abnormal range of motion in his left shoulder, and the Veteran experienced functional loss due to pain during the examination. Thus, a remand is necessary to obtain a musculoskeletal examination of the left shoulder to determine whether the Veteran’s disability would be more appropriately rated under another diagnostic code, or whether ratings under additional diagnostic codes are appropriate. The matter is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his left shoulder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After any additional records are associated with the claims file, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected left shoulder disability. Specifically, the Veteran should be afforded a musculoskeletal examination pertaining to his left shoulder. Any and all other studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In particular, the examiner should provide the range of motion of the left and right shoulder in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should provide an explanation for this determination in the report. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). The examiner should also discuss any additional functional impairment that occurs during flare-ups, including any additional limitation of motion. To the extent possible, he or she should address the frequency, duration, characteristics, and severity of flare-ups (through the examination findings, review of the medical records, and/or history provided by the Veteran). If the examiner is unable to provide an opinion as to functional loss, he or she must provide an explanation in the report. Further, the examiner should comment as to whether ranges of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the other VA examinations conducted during the appeal period. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. The examiner should also comment as to whether the functional impact of flare-ups can be estimated for the other VA examinations conducted during the appeal period, including any additional limitation of motion in terms of degrees. If the examiner is unable to provide a retrospective opinion as to functional impact of a flare-ups throughout the appeal period, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. (Continued on the next page)   3. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claims should be reviewed by the AOJ on the basis of additional evidence received since the claims were last adjudicated. J. SAIKH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rekowski, 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.