Citation Nr: 21005009 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 18-04 692 DATE: January 28, 2021 ORDER Entitlement to service connection for slight lateral tilt kneecap, right knee (claimed as a right knee disorder) is denied. FINDING OF FACT The Veteran’s right knee disorder is not etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for slight lateral tilt kneecap, right, (claimed as a right knee disorder) are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REMANDED Entitlement to service connection for degenerative changes of the lumbar spine (claimed as herniated disk) is remanded. FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1992 to December 1996. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board denied the Veteran’s claim of entitlement to service connection for a right knee disorder and remanded the claim of entitlement to service connection for degenerative changes of the lumbar spine. The Veteran appealed the denial to the Court of Appeals of Veterans Claims (Court) and in an order dated December 2019, the Court granted a joint motion remand (JMR) and remanded the claim to the Board for readjudication. The Board remanded the case in August 2020 for further development, which, regarding the Veteran’s lumbar spine, has not been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "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." Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter before the Board, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107(2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for a right knee disorder The Veteran contends he is entitled to service connection for a right knee disorder. His claim was received in February 2014. The Veteran contends that his knee injury is a result of performing duties as an Aviation Boatswains Mate. See Form 9. The Veteran has a current diagnosis of slight lateral tilt of the right kneecap. The Veteran’s service treatment records (STRs) show that he received treatment for right knee problems during service. In July 1994, the Veteran complained of right knee pain and reported he had a history of falling on his flexed right knee while playing basketball. An examination indicated anterior knee tenderness, but an x-ray film was interpreted as being negative for knee fracture. The Veteran was diagnosed with anterior tibial/tibial tuberosity contusion of the right knee. A subsequent July 1994 service treatment record documented complaints of right knee pain. Physical examination revealed edema of the anterior femoral/tibial area with tenderness below the right patella. There was also evidence of some laxity, but with full range of motion. Following a history of anterior tibial tuberosity contusion, the Veteran was later assessed with recurrent right knee tenderness. Service treatment records dated in February and April 1995 show assessment of patellar femoral pain syndrome (PFS) based on complaints of bilateral knee pain. The Veteran was prescribed PFS protocol for quadricep strengthening. The Veteran continued to complain of bilateral knee pain without improvement following treatment in August 1995. A medical note indicates that the Veteran demonstrated incorrect range of motion for PFS exercises and was instructed on proper PFS protocol exercises. In September 1995, he was again provided with proper PFS protocol exercises following complaints of right knee pain. Service treatment records do not show further complaints or treatment for right knee problems after September 1995. The Veteran underwent a separation examination in December 1996 where clinical evaluation of the lower extremities was determined to be normal. On the associated report of medical history, the Veteran specifically denied having or ever having had knee troubles. The Veteran’s post-service VA treatment records contain an initial complaint of right knee pain in December 2013. At the time the Veteran sought treatment he denied any trauma or past injury of to the right knee and further stated that his knee had just started hurting. An x-ray of the knee was interpreted as revealing a slight lateral tilt of the patella. In August 2014 and May 2016, the Veteran continued to seek treatment for right knee pain. In January 2020, the U.S. Court of Appeals for Veterans Claims directed the Board to remand the issue on appeal to obtain VA treatment records from after July 2017. The requested records were added to the claim file. Within the VA treatment records from after July 2017, there is one note in a primary care follow up regarding the Veteran’s knee that states that the Veteran is “doing well. [The Veteran] says [he] put in a VA claim for his low back and knee pain.” The medical records are otherwise silent as to the Veteran’s knee pain or treatment from after July 2017. Based on the foregoing, the Board finds that the Veteran’s right knee disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran's STRs show a diagnosis of PFS in February and May 1995 that was then treated with physical therapy. Upon separation, the Veteran denied having or ever having had any knee problems. The Veteran reported that he first sought treatment in 2013, which is more than a decade after he separated from service, well outside of the presumptive period. His VA treatment records show that he was not diagnosed with slight lateral tilt of the patella until December 2013, well after he separated from service. There is a single reference from the Veteran as to the presence of continuity of knee symptomology from discharge to the present. In his substantive appeal from January 2018, the Veteran writes he did not have problems with his knees prior to active duty, that the disabilities occurred during military service and “continue to be a problem today.” The Board finds this single reference is outweighed by the contemporaneous medical records which document the Veteran was not found to have knee problems at discharge, denied having knee problems at discharge and first sought post service knee treatment in 2013. When seeking treatment in December 2013, the Veteran reported that his right knee pain had just started, negating any assertions of continuity of symptomatology. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). There is competent evidence demonstrating that the knee disorder is not linked to active duty. The examiner who prepared the report of a May 2014 VA examination opined that the slight tilt of the right kneecap was likely unrelated to an in-service injury, event, or disease, including treatment for right knee problems. The rationale was that while the Veteran was treated on more than one occasion for bilateral knee pain, he appears to have benefited from conservative management of his right knee problems. The Veteran sustained contusion to his right knee in 1994 and the x-ray obtained demonstrated no fracture. The VA examiner noted that the Veteran’s service treatment records do not show any knee condition that would be expected to persist as a chronic knee disorder. In addition, the examiner observed that the December 1996 separation examination showed the right knee was evaluated as normal. The May 2014 VA examiner’s opinion is entitled to probative weight as it is based on an accurate medical history as set out above of no continuity of symptomology and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his slight tilt of the right kneecap is related to an in-service injury, event, or disease, including treatment for right knee pain, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of musculoskeletal system and interpretation of complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377. Here, the Board gives more probative weight to the May 2014 VA examiner’s medical opinion. In sum, the Board finds that the preponderance of the probative evidence is against finding that the Veteran's right knee disability was shown as chronic in service, manifested to a compensable degree within one year of separation from service, was established by continuity of symptomatology, or was directly related to an in-service injury or disease. Accordingly, service connection for a right knee disability is denied. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. at 54; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for degenerative changes of the lumbar spine (claimed as herniated disk) is remanded. In December 2018 and August 2020, the Board remanded the degenerative disc changes, L4-L5, of the lumbar spine claim for a medical examination and opinion. The remand instructions specifically directed the examiner to address the Veteran’s consistent reports of pain since discharge from active duty noted in the clinical records and the Veteran’s own allegations. The Veteran was afforded the requested examinations in February 2019 and October 2020. The examination reports did not comply with the Board’s remand instructions and must be remanded for compliance with these instructions. The examiner did not adequately address the Veteran’s consistent reports of pain since discharge from active duty noted in the clinical records and the Veteran’s own allegations. In Stegall v. West, 11 Vet. App, 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. As there has not been compliance with the December 2018 and August 2020 remand instructions, another remand is required. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from the August 2020 VA examiner, or another appropriately qualified VA examiner, to determine the nature and etiology of the Veteran’s back disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. It is up to the discretion of the examiner as to whether a new examination of the Veteran is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary by the examiner, the VA examiner is asked to respond to the following inquiry. a. Identify any back disability that has been present since the Veteran filed his claim. In doing so, the examiner should specifically address the Veteran’s consistent reports of pain since discharge from active duty noted in the clinical records and the Veteran’s own allegations. See CAPRI Records. b. For the back disability, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the disability had its onset during the Veteran’s active service or is otherwise etiologically related to his active service. The rationale for all opinions expressed must be provided. (Continued on the next page)   (Continued on the next page) G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt 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.