Citation Nr: 21004828 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 20-21 456 DATE: January 28, 2021 ORDER Entitlement to service connection for a right knee disability, to include as secondary to service-connected disease or injury is denied. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disease or injury is denied. FINDINGS OF FACT 1. A right knee disability diagnosed as osteoarthritis did not manifest in service and is not attributable to service; arthritis did not manifest to a compensable degree within one year of discharge from service. 2. A right knee disability is not caused or aggravated by service-connected disease or injury. 3. A left knee disability diagnosed as osteoarthritis did not manifest in service and is not attributable to service; arthritis did not manifest to a compensable degree within one year of discharge from service. 4. A left knee disability is not caused or aggravated by service-connected disease or injury. CONCLUSIONS OF LAW 1. A right knee disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 2. A right knee disability is not proximately due to or the result of (causation or aggravation) a service connected disease or injury. 38 C.F.R. § 3.310 (2019). 3. A left knee disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 4. A left knee disability is not proximately due to or the result of (causation or aggravation) a service connected disease or injury. 38 C.F.R. § 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1956 to March 1962 and from October 1962 to October 1965. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims on appeal in September 2020. The Veteran’s claims folder has returned to the Board for further appellate consideration. Service connection for right and left knee disabilities The Veteran contends that he has right and left knee disabilities that are related to service, in particular from in-service injury due to parachuting. He alternatively contends that the right and left knee disabilities are secondary to his service-connected osteoarthritis of the left ankle. He does not contend, nor does the evidence of record otherwise show, that his right and left knee disabilities are secondary to his service-connected surgical scar of the left ankle or tinnitus. Pertinent legal criteria Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For certain chronic disease, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. 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, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). Direct and presumptive service connection As discussed above, the Veteran contends that he has right and left knee disabilities that are related to service, in particular from in-service injury due to parachuting. The Board observes that the Veteran’s service treatment records are absent complaints of or treatment for the right or left knee. However, the Board notes that the Veteran is competent to attest to an injury to his knees from parachuting. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Indeed, his personnel records document receipt of the parachute badge. Therefore, the Veteran as a lay person is competent to report the in-service knee injury. During an October 2018 VA examination, the Veteran reported knee problems over the past several years. Moreover, the current medical evidence documents findings of osteoarthritis of the right and left knees. See, e.g., the October 2018 VA examination report. The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran’s current right and left disabilities are related to his service on a direct or presumptive basis. Specifically, the Veteran was provided a VA examination for his knees in May 2015. The VA examination report documented findings of right and left knee osteoarthritis. The VA examiner concluded after examination of the Veteran and consideration of his medical history that it is less likely than not that the Veteran’s right and left knee osteoarthritis was caused by or aggravated by service. The examiner’s rationale for his conclusion was based on his finding that there was no evidence of knee injury in service. Further, while it was not easy on any joints to be a parachutist, there is no evidence that knee problems would manifest many years after the activity. Moreover, the examiner noted that it is very common to have knee arthritis in a man of the Veteran’s age. The Board notes that another VA examiner concluded in October 2018 and September 2020 opinion reports that it is less likely than not that the Veteran’s right and left knee osteoarthritis are the result of the Veteran’s service to include parachuting. The examiner’s rationale for his conclusion was based on the Veteran’s report of knee symptoms many years following separation from service and that the Veteran’s separation examination was negative for any knee condition. The examiner further noted that the Veteran has relatively symmetrical findings of moderate to severe degenerative joint disease in the knees with relatively symmetrical range of motion. He noted that it is unlikely that the in-service parachuting injury would result in a bilateral, symmetrical knee degenerative joint disease. The May 2015 and September 2020 VA medical opinions were based on upon thorough review of the record and analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. Additionally, the VA examiners’ opinions are consistent with the Veteran’s documented medical history, which is absent any report of symptomatology consistent with right and left knee disabilities for more than 40 years after active service. The examiners also noted the Veteran’s in-service injuries which they determined to be less likely as not related to the Veteran’s current right and left knee disabilities. The Board acknowledges the Veteran’s submission of medical articles that indicate his current right and left knee osteoarthritis is consistent with the parachuting injuries from service. The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses]. However, the research submitted by the Veteran is of a general nature and does not contain any information or analysis specific to the Veteran’s case. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that medical evidence which is speculative, general, or inconclusive in nature cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Pertinently, the September 2020 VA examiner reviewed medical articles submitted by the Veteran and furthermore reviewed the Veteran’s medical history and considered the Veteran’s complaints and thereafter concluded that the Veteran’s current right and left knee osteoarthritis is not the result of service to include the parachuting. The Board has therefore placed great probative value on the findings of the VA examiner. As such, the research submitted by the Veteran is greatly outweighed by the examiner’s opinion. In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). To the extent the Veteran asserts his current right and left knee disabilities are related to his service, the Veteran is competent to report that he has a current diagnosis (as that is documented in the record). He is also competent to report that he has had symptoms since service. However, arthritis of either the right or left knee was not noted, diagnosed or manifest during service or within one year of separation. In as much as the July 1965 separation examination of the knees was normal, he did not have characteristic manifestations sufficient to identify the chronic disease entity, arthritis, during service or within one year of separation. 38 C.F.R. § 3.303(b). The Board observes that the Veteran has reported longstanding pain with regard to his knees upon separation from service. The Board also notes that the Veteran is competent to report his symptoms both current and past. However, this lay evidence is inconsistent with the normal examination of his knees upon separation from service in July 1965 as well as his denial of knee pathology at that time. Further, the in-service examination is more credible and more probative than his lay assertions. We conclude that the objective evidence is more probative and credible than the lay evidence submitted in support of a claim for benefits. The Board must find that the Veteran’s statements with regard to a nexus between his right and left knee disabilities and service to be of minimal probative value and outweighed by the VA opinions, prepared by skilled neutral professionals. We again note that the Veteran reports that he injured his knees from parachuting during service. However, chronic pathology was not noted during service and the knees were normal at separation. In addition, chronic pathology was not identified within one year of separation. In short, the credible and probative evidence establishes that arthritis of either the right or left knees was not manifest during service or within one year of separation. Secondary service connection The competent evidence establishes that the Veteran has osteoarthritis of the knees. See, e.g., the October 2018 VA examination report. Additionally, the Veteran is currently service-connected for osteoarthritis of the left ankle with history of bimalleolar fracture. The Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran’s current right and left knee disabilities are due to or aggravated by his service-connected left ankle disability and service connection is therefore not warranted on a secondary basis. Specifically, the Veteran was afforded a VA examination in October 2018. After examination of the Veteran and consideration of his medical history the examiner concluded that it is less likely than not that the Veteran’s right and left knee osteoarthritis is the result of or permanently aggravated by his osteoarthritis of the left ankle. The examiner’s rationale for his conclusion in pertinent part was based on his finding that the Veteran’s knee symptoms emerging in the 70s and 80s is a result of normal aging. The examiner further noted in a September 2020 addendum opinion that the Veteran has relatively symmetrical findings of moderate to severe degenerative joint disease in the knees with relatively symmetrical range of motion. He noted that it is unlikely that the service-connected left ankle disability would result in a bilateral, symmetrical knee degenerative joint disease. Also, there is no evidence of a clinically significant gait abnormality due to the left ankle during ages 30 to 70 (prior to the onset of bilateral knee symptoms). The October 2018 and September 2020 VA medical opinions were based upon thorough consideration and analysis of the Veteran’s pertinent medical history. See Bloom, supra. As discussed above, the Veteran has submitted numerous medical articles in support of his claims that indicate traumatic injuries to include injury to the left ankle causing the current service-connected left ankle injury have caused the current right and left knee osteoarthritis. As also discussed above, the Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin, supra; see also 38 C.F.R. § 3.159(a)(1), supra. However, the research submitted by the Veteran is of a general nature and does not contain any information or analysis specific to the Veteran’s case. Additionally, the Court has held that medical evidence which is speculative, general, or inconclusive in nature cannot support a claim. See Jones, Beausoleil, and Libertine, all supra. Pertinently, the September 2020 VA examiner reviewed medical articles submitted by the Veteran as well as the Veteran’s medical history and considered the Veteran’s complaints and thereafter concluded that the Veteran’s current right and left knee osteoarthritis is not caused or aggravated by the service-connected left ankle disability. The Board has therefore placed great probative value on the findings of the VA examiner. As such, the research submitted by the Veteran is greatly outweighed by the examiner’s opinion. The Board observes that the Veteran has submitted lay statements indicating that his right and left knee disabilities are secondary to his osteoarthritis of the left ankle with history of bimalleolar fracture. The Board notes that the Veteran is competent to report that he has been diagnosed with right and left knee disabilities. However, to the extent the Veteran proffers this information as a positive nexus between his right and left knee disabilities and his osteoarthritis of the left ankle with history of bimalleolar fracture, the Board finds that such an opinion is outweighed by the evidence of record, in particular the October 2018 and September 2020 VA medical opinions which were based on thorough review of the Veteran’s pertinent medical history and medical condition and supported by adequate rationales. Therefore, this lay evidence is accorded little probative value. Here, the preponderance of the evidence is against the claims and there is no doubt to be resolved. Conclusion For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for right and left knee disabilities, to include as secondary to service-connected disease or injury. The benefits sought on appeal are accordingly denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.