Citation Nr: 21004912 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-36 375 DATE: January 28, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a right thigh disability, to include as secondary to a right knee disability is denied. FINDINGS OF FACT 1. The Veteran’s fractured tibia and Osgood Schlatter’s Disease of the tibial tuberosity, which clearly and unmistakably preexisted service is not congenital in nature and was clearly and unmistakably not aggravated beyond normal progression during service. 2. Right knee arthritis was not chronic in service, did not manifested to a compensable degree within one year after discharge and was not continuous since service. 3. The Veteran’s right thigh disability was not incurred in, or is not otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a right thigh disability, to include as secondary to a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1984 to April 1984, with subsequent periods of Reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Service Connection 1. Entitlement to service connection for a right knee disability 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; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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, 1131, 1137; 38 C.F.R. § 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, arthritis is a chronic disease. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38U.S.C. §1111; 38C.F.R. §3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). At the time of his May 1983 enlistment examination, the Veteran reported that he had a history of a cracked knee. The examining physician instead noted that the Veteran had a fracture of the right proximal tibia (shinbone). A July 1984 treatment record indicated that an x-ray of the Veteran’s right knee showed Osgood–Schlatter’s disease in the tibial tuberosity. Additionally, during the Veteran’s January 2020 VA examination, the examiner noted that Osgood–Schlatter’s disease is a common bony enlargement condition seen in children and occurs over time. Further, an October 2020 examination indicates that the Veteran’s Osgood–Schlatter’s disease clearly and unmistakably preexisted service. In this case, as the evidence of record establishes that the Veteran had a right knee disability that clearly and unmistakably preexisted active service, the Board finds that the presumption of soundness at entry into service does not attach. 38 U.S.C. § 1111. As the Veteran's right knee disability preexisted service, service connection for a right knee disability may be granted only if it is shown that the condition clearly and unmistakably worsened in severity beyond its natural progression during service, i.e., was "aggravated by" service. 38 U.S.C. § 1153; 38 C.F.R. § 3.304. The presumption of soundness does not, however, apply to congenital or developmental defects because such defects are not "diseases or injuries" within the meaning of 38 U.S.C. §§ 1110 and 1111. Nevertheless, service connection may be granted due to aggravation of a congenital or developmental defect by a superimposed disease or injury. See VAOPGCPREC 82-90 (July 18, 1990); see also Carpenter v. Brown, 8 Vet. App. 240 (1995). However, service connection may be granted for diseases (but not defects) of congenital, developmental, or familial (hereditary) origin if the condition was incurred in or aggravated during service beyond its natural progression. In addition to the Veteran’s history of a fractured tibia and diagnosis of Osgood–Schlatter’s disease in the tibial tuberosity, he also has a current diagnosis of degenerative arthritis of the right knee. Accordingly, the Board must also address whether the Veteran’s arthritis of the right knee is related to active service or whether continuity of right knee symptoms have existed since service. In addition to the Veteran’s Osgood-Schlatter’s disease and fractured tibia, his service treatment records (STRs) indicate that he suffered a contusion of the right thigh in July 1984 after being hit with a firing pin. The treatment note also indicates that the Veteran had localized tenderness, was told to ice the injury, and was restricted from field duty for 2 days. The STRs are silent as to any complaint or treatment for any right knee injury, to include at separation. The Veteran was afforded a VA examination in September 2014. The Veteran reported the 1984 firing pin incident. The examiner noted the Veteran’s diagnosis of arthritis of the right knee and concluded that the condition was not related to active service. The examiner noted that the Veteran’s arthritis was more likely than not from age-related change, as it was minor and symmetrical, and there was no evidence of any direct injury while on active duty. This matter was last before the Board in April 2020. The Board found that while an October 2019 VA examination noted a fracture of the right tibia as a preexisting condition, the medical opinion rendered did not address whether the condition was aggravated during active service. The matter was remanded to obtain an addendum medical opinion. At the time of an October 2020 VA examination, the Veteran reported that his knee condition had its onset in 1984. He also reported that the condition became progressively worse, especially during the last 2 years. The examiner noted diagnoses of Osgood-Schlatter’s disease and a fracture of the tibia prior to service, and a diagnosis of degenerative arthritis of the right knee in 2012. The examiner concluded that while the Veteran’s fractured tibia and Osgood–Schlatter’s disease in the tibial tuberosity clearly and unmistakably preexisted service, the condition was not congenital in nature. The examiner reasoned that Osgood-Schlatter’s Disease is a self-limiting adolescent condition, with its onset coinciding with adolescent growth spurts between ages 10 to 15 years for males. The examiner further concluded that the condition was clearly and unmistakably not aggravated beyond the normal progression during service. As to the Veteran’s arthritis of the right knee, the October 2020 examiner opined that the condition was not congenital, that it did not preexist service, and that it was not otherwise related to active service. The examiner noted that the Veteran was only treated during service for a contusion of the thigh that did not involve the knee. The Board finds that the September 2014 and October 2020 examiners’ opinions are highly probative, as they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on the above, the Board concludes that the medical evidence of record supports a finding that the Veteran’s preexisting right knee disability, a history of a fractured tibia and Osgood-Schlatter’s disease of the tibial tuberosity, is not congenital in nature. The October 2020 examiner indicated that the disease was a self-limiting adolescent condition. The Board further finds that the condition was clearly and unmistakably not aggravated during service. This finding is supported by absence of any complaints or treatment related to the knee during service or any notation of such at separation. As to the Veteran’s arthritis, the Board finds that the condition did not have its onset in or is not otherwise related to active service. This finding is supported by the September 2014 examiner’s opinion that the Veteran’s arthritis was age related, as well as the October 2020 examiner’s opinion that the condition was not related to active service. Additionally, with respect to a diagnosis of degenerative joint disease, the Board has considered whether there is competent credible evidence of continuity of symptomatology of degenerative joint disease of the right knee, as arthritis, since service, or whether such manifested to a compensable degree within one year of separation; but finds in each case that there is not. The Board finds that the contemporaneous medical records are more probative than the assertions of the Veteran regarding continuity of symptoms. In this case, there is no evidence of any complaint or treatment related to the right knee during service. Additionally, the Board notes that there was no indication of a right knee disability on the Veteran’s separation examination. Finally, the medical evidence of record is silent as to any right knee condition prior to the filing of the instant claim; more than two decades after his separation from active service. While the Veteran believes that his right knee condition is related to service, he is not competent to provide a nexus opinion in this case, as the pathology of his condition falls outside of the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the September 2014 and October 2020. Thus, the greater weight of the evidence is against the Veteran's right knee disability claim. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. 2. Entitlement to service connection for a right thigh disability, to include as secondary to a right knee disability The Veteran also contends that he suffers from a right thigh disability that is either related to active service or is caused or aggravated by his claimed right knee disability. At the onset, the Board notes that while the Veteran has been found to have pain in the right thigh, there can be no service connection for any disease or injury as secondary to his claimed right knee disability. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Therefore, service connection for a right thigh disability as secondary to a right knee disability, must be denied as a matter of law. For the reasons stated below, the Board also finds that service connection is not warranted for a right thigh disability on a direct basis. As noted above, the Veteran’s STRs indicate that he suffered a contusion of the right thigh in July 1984 after being hit with a firing pin. He was noted to have a three-quarter inch welt on his thigh. The treatment note also indicates that the Veteran had localized tenderness, was told to ice the injury, and was restricted from field duty for 2 days. The STRs are otherwise silent as to any complaint or treatment related to the right thigh, to include at separation. The Veteran was afforded a VA examination in October 2019. The examiner noted the Veteran’s history of a right thigh contusion that was resolved and his current complaints of right knee pain radiating to the hip and back. The examiner opined that the current condition is not consistent with and not likely a sequela of the contusion of the medial thigh noted on active duty. The examiner concluded that the Veteran’s current leg symptoms likely result from his complaint of radiating back pain with origins in the lumbar spine. The Veteran was also afforded a VA examination in January 2020. The examiner noted the Veteran’s 1984 injury to the right thigh and current reports of pain in the same. The examiner opined that the Veteran’s current right thigh condition was not related to active service, to include the 1984 injury. The examiner noted that the injury resulted in a less than one-inch welt on the skin of the inner thigh, not the hip area; noting that a welt is not a chronic condition. Additionally, the examiner noted that imaging of the right femur was negative. The examiner further noted that a May 1989 report of medical history showed that the Veteran had sustained a stab wound to the right buttocks as well as a shot to the left leg following active duty. The examiner concluded that the current thigh symptoms likely result from his radiating back pain or from the previous stab wound to the right buttock area. The Board finds that the October 2019 and January 2020 examiner’s opinions are highly probative, as they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the medical evidence of record also includes an October 2020 addendum medical opinion. However, as the opinion only addresses whether the Veteran’s right thigh disability is secondary to his claimed right knee disability, the October 2020 opinion has no probative value. While the Veteran believes that his right thigh condition is related to service, he is not competent to provide a nexus opinion in this case, as the pathology of his condition falls outside of the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examinations of record. Thus, the greater weight of the evidence is against the Veteran's right thigh disability claim. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, 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.