Citation Nr: 21061416 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 12-06 442 DATE: October 4, 2021 ORDER Entitlement to service connection for a right knee condition is denied. Entitlement to service connection for a left knee condition is denied. FINDINGS OF FACT 1. The competent medical evidence does not demonstrate that the Veteran's right knee condition was incurred in service or is otherwise attributable to his service. 2. The competent medical evidence does not demonstrate that the Veteran's left knee condition was incurred in service or is otherwise attributable to his service. CONCLUSIONS OF LAW 1. Service connection for a right knee condition is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. § 3.303. 2. Service connection for a left knee condition is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1958 to October 1959. These matters were last before the Board in May 2021, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of an August 2021 supplemental statement of the case continuing the denial of both service connection claims, the case was returned to the Board for its adjudication. Entitlement to Service Connection for Right and Left Knee Conditions The Veteran seeks service connection for right and left knee conditions, which he contends were incurred in service as a result of the physical demands of his duties in service, to include engaging in multiple parachute jumps. In the alternative, he acknowledges that he did not seek treatment for a right or left knee condition for several years after his discharge, but he nevertheless contends that his current right and left knee condition is attributable to service. As the evidence in support of both claimed conditions is largely identical, the Board will consider the claims together. Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Accordingly, the question for the Board is whether the Veteran has diagnosable right and left knee conditions that were incurred in service or are otherwise attributable to an in-service injury, event, or disease. After a review of the claims file, the Board concludes that, while the Veteran has been diagnosed with right and left knee conditions, characterized as osteoarthritis, the preponderance of the evidence is against a determination that a diagnosable right or left knee condition began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (b), (d). A review of available service treatment records does not reflect any specific treatment for knee symptomatology. No knee abnormality or knee pain was noted on the October 1959 separation examination or the associated October 1959 Report of Medical History. Immediately following his discharge from service, in January 1960 the Veteran underwent a compensation and pension examination to evaluate the nature and likely etiology of his claimed musculoskeletal conditions, to include bilateral knee pain. Without detailing the entirety of the examination, the Board notes that pertinently a musculoskeletal evaluation did not reveal any abnormalities. The nature of the claimed knee conditions was first evaluated in an August 2015 VA examination, during which the Veteran reported that he began experiencing knee pain in 1959 or 1960, either during service or soon thereafter. According to the Veteran, he continued to experience knee pain intermittently until around 2011, when his knee pain worsened considerably. His pain was located in the lateral and anterior aspects of the knees bilaterally, and he also detailed that he experienced pain when standing up from a seated or kneeling position. As the August 2015 examiner did not provide an etiology opinion, VA procured an opinion regarding the likely etiology of the knee conditions in January 2016, during which the examiner opined that it was less likely than not that a right or left knee condition was incurred in or was otherwise attributable to service. In support thereof, the chosen examiner stated that there was no documentation of the Veteran having sought treatment for knee symptomatology during service, nor was he diagnosed with any knee condition during service. The examiner also highlighted that the Veteran did not seek treatment for his knee condition following service until 2011, over 50 years after his discharge. Pursuant to the Board's December 2016 remand instructions, the etiology of the claimed knee conditions was next evaluated in January 2017, at which point a VA examiner opined that it was less likely than not that the claimed knee conditions were incurred in or otherwise attributable to service. In support thereof, the examiner reiterated that the Veteran did not have any documented treatment for or diagnosis of a knee condition in service and did not seek treatment for knee pain until 2011. The examiner also noted that the Veteran's disease progression was commensurate with osteoarthritis due to the natural aging process. The AOJ then requested an addendum to the January 2017 opinion. However, the resulting opinion dated in February 2017 is essentially a reproduction of the one procured in January 2017. Following the Board's remand in January 2019, the likely etiology of the claimed knee conditions was again evaluated in September 2019. After a review of the claims file, the chosen examiner opined that it was less likely than not that the knee conditions were incurred in or were otherwise attributable to service. In support thereof, the examiner detailed the entirety of the Veteran's service treatment records and noted that the Veteran was never evaluated with having a diagnosable knee condition during service despite undergoing multiple examinations. The examiner then noted that the Veteran was also not evaluated with a knee condition on the January 1960 compensation and pension examination he underwent immediately following his discharge from service. In addition, the examiner reviewed medical literature pertaining to the development of osteoarthritis and highlighted that the Veteran exhibited many of the risk factors for the development of bilateral knee osteoarthritis, including most importantly his age. In summation, the examiner found it less likely than not that the knee conditions were attributable to service, even when including consideration of the Veteran's claimed participation in parachuting activities while in service. The Board in December 2020 remanded these claims once more in order to obtain an addendum opinion that took into consideration lay testimony from the Veteran regarding the incurrence of the knee conditions in service as well as the chronicity of the knee condition following service. That opinion was obtained in December 2020, wherein the VA examiner confirmed that it was less likely than not that the knee conditions were incurred in or otherwise attributable to service. In support thereof, the examiner again detailed the Veteran's in-service medical history, and noted the lack of any documented injury to the knees or treatment for knee symptomatology in service. In addition, the examiner highlighted that the Veteran's history of work in construction following service, as well as his advanced age, were significant risk factors for the development of osteoarthritis. Indeed, the examiner specifically noted that the Veteran's documented degenerative changes were no more pronounced then would be expected for a man his age. Most recently, in response to the Board's May 2021 remand instructions, the AOJ obtained a VA etiology opinion in July 2021, wherein the examiner essentially reiterated the same conclusion and rationale as before but explicitly noted that the Veteran did seek treatment for his knee condition 13 years earlier than previously reported, that is, in June 1998 rather than in 2011. Despite the earlier onset of documented symptomatology, however, the examiner still found that the it was less likely than not that the knee conditions were incurred in or were otherwise attributable to service. Instead, the examiner found it far more likely that the diagnosed osteoarthritis was attributable to the natural aging process compounded by the Veteran's extensive post-service history of employment in the construction field. A review of available post-service VA and private medical records reflects that the earliest available documentation of the Veteran having received treatment for knee symptomatology is an June 1998 outpatient record submitted by the Veteran during the pendency of the appeal, which shows that he was evaluated with bilateral knee arthritis. Thereafter, VA medical records show that the Veteran first sought treatment through VA in October 2011, during which he reported experiencing bilateral knee pain for several years that he attributed to his history of participating in parachute drills while in service. An October 2011 X-ray examination revealed mild patellofemoral degenerative changes with possible joint effusion. Subsequent records show continued treatment for bilateral knee pain. An August 2015 radiographic examination revealed moderate tricompartmental degenerative changes in the left, characterized as osteopenia. More contemporary VA records do not show consistent treatment for knee symptomatology; moreover, no VA medical professional has ever definitively associated the claimed knee symptomatology to the Veteran's service. Upon review of the record, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for either a right or left knee condition. The Board acknowledges that the Veteran has continually asserted that his knee pain began in service and has continued without interruption since then. The Veteran is competent to testify as to when his symptoms began. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran's contentions must be considered in light of the objective medical evidence of record to better establish the likelihood of there being a nexus between the Veteran's service and his currently diagnosed low back condition. To that end, the Board notes that it finds the various VA etiology opinions to be sufficiently probative when considered cumulatively. Although the Board has repeatedly remanded the bilateral knee claims in order to secure opinions more responsive to the issues under evaluation, it must also be noted that each examiner thoroughly reviewed the claims file and referenced the lack of any treatment or diagnosis of a knee condition in service. Furthermore, the majority of VA examiners discussed the lack of any evidence of musculoskeletal abnormality on the January 1960 compensation and pension examination, administered within a year of the Veteran's discharge from service. Multiple examiners also commented on the Veterans extensive history of work in the construction field as well as his advanced age, both of which were considerable risk factors for the development of degenerative changes in the knees. Ultimately, the Board's continuing rejection of the successive VA examinations hinged on the fact that most of them elided over the Veteran's reported history of experiencing chronic knee symptomatology beginning in service as well as an erroneous review of the record, as many of the examiners detailed that the Veteran did not seek treatment for knee pain until 2011 when in actuality he was treated as early as 1998. Nevertheless, these two errors were adequately addressed by the July 2021 examiner, who thoroughly detailed the Veteran's contentions and appropriately identified June 1998 as the earliest documented instance of the Veteran having sought treatment for knee pain. In summation, the Board finds the July 2021 opinion, representing as it does the cumulative weight of the several VA examiners who previously evaluated the likely etiology of the claimed knee conditions, to be highly probative, in light of the examiner's detailed discussion of the record and consideration of medical literature. Sklar v. Brown, 5 Vet. App. 140 (1993). Ultimately, the absence of objective in-service medical evidence documenting a diagnosis of or treatment for a right or left knee condition coupled with the probative VA examiner opinions far outweighs the Veteran's assertion that his bilateral knee conditions began in service and that his symptoms have continued since his discharge from service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). As such, the preponderance of the evidence is against the claim of service connection for a knee condition on either a direct basis under 38 C.F.R. § 3.303(a) or based on continuity of symptomatology under 38 C.F.R. § 3.30(b). The Veteran may still be entitled to service connection for right and left knee conditions if all of the evidence establishes that the conditions are otherwise attributable to an in-service occurrence. 38 C.F.R. § 3.303(d). As stated above, however, the weight of the objective medical evidence of record is against such a determination, as the opinions of the most recent VA examiner are supported by the weight of the evidence. This evidence shows that the Veteran was never evaluated as having a right or left knee condition in service and did not have documented treatment for knee symptomatology until 1998, over 35 years after his discharge from service. Furthermore, the Board notes that there is no evidence in the record showing that the Veteran has the medical training, credentials, or other expertise to competently conclude that his bilateral knee conditions are attributable to service. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). In summation, the Board finds that the most recent VA examiner opinion substantially outweighs the lay evidence of record, in light of the rationale presented and the absence of training or credentials on the part of the Veteran. Therefore, the preponderance of the evidence is against the claim of service connection for a right or left knee condition, the benefit-of-the-doubt standard of proof does not apply, and the claims are denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.