Citation Nr: 21061504 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-48 662 DATE: October 4, 2021 ORDER Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a left knee disability that is related to active military service or events therein. 2. The preponderance of the evidence is against finding that the Veteran has a right knee disability that is related to active military service or events therein. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2020). 2. The criteria for establishing service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1970 to February 1972. The Veteran testified before the undersigned Veterans Law Judge during an October 2018 hearing and a transcript is of record. This matter is on appeal from an October 2015 rating decision. In a February 2019 decision, the Board remanded the claims to attempt again to obtain any outstanding service treatment records and to afford the Veteran an additional VA medical opinion. The Agency of Original Jurisdiction (AOJ) has done so. The AOJ attempted to obtain additional service treatment records and succeeded in obtaining additional service personnel records but its efforts with regard to service treatment records were unsuccessful. The Veteran was afforded a VA medical opinion with regard to the claims on appeal in December 2019. The VA medical opinion is adequate with regard to the claims being decided below because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the clinician explained their opinion with regard to a nexus to service in detail sufficient to allow the Board to make fully informed determinations. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). There was therefore substantial compliance with the remand directives with regard to the issues being decided below. See Stegall v. West, 11 Vet. App. 268 (1998). As the Board found in its February 2019 decision, because the Veteran has reported that he sought treatment for his knees during his active duty service, his service treatment records contain only the entrance and separation examinations, and he served on active duty for a year and a half, it is possible that such brief treatment records are incomplete. The AOJ has been unable to locate any additional service treatment records and has documented its efforts to locate the complete records. In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because of the missing records, the analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist with regard to the issues being decided below. 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). Service Connection 1. Left Knee Disability 2. Right Knee Disability The Veteran contends that he has left and right knee disabilities that are etiologically related to his active duty service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Post-service development of arthritis to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As stated above, the Veteran's service treatment records may be partially missing. However, one record that has been associated with the claims file is his January 1972 separation examination, during which the examiner found his lower extremities to be normal but noted "Osgood-Schlattens disease" that was "[e]ssentially asymptomatic." The records that have been associated with the claims file do not include a contemporaneous report of the Veteran's medical history. During his initial VA treatment appointment in September 2002, the Veteran reported onset of medial right knee pain about two months prior after walking on his treadmill. During a February 2003 VA treatment appointment, he again reported that his right knee pain had its onset the previous summer after using his treadmill and added that he now had pain in both knees. The treatment provider noted that December 2002 x-rays showed mild osteoarthritis of the medial compartments of both knees with no acute abnormality. The Veteran was afforded a VA examination in September 2015. The Veteran reported having been told in service that he had both Osgood-Schlatter's disease and bilateral meniscal tears. He also reported continuity of symptoms since active duty service and right knee surgery in 2004. The clinician diagnosed left knee strain, bilateral meniscal tears, and right knee degenerative arthritis. Because the Board found the clinician's rationale with regard to a nexus to service to be inadequate for rating purposes, the nexus opinion is of limited, if any, probative value and will play no role in the Board's analysis. However, the Board notes the Veteran's report of his history and the clinician's findings with regard to the Veteran's current disability. In his January 2016 Notice of Disagreement (NOD), the Veteran reported that, when he was diagnosed with Osgood-Schlatter's disease during his active duty service, he "was told there was nothing [he] could do about the pain" and that he had received similar answers when reporting his pain in the intervening years. The Veteran has submitted September 2018 statements from two former spouses. One, who was married to the Veteran from 1970 to 1976, reported that the Veteran "dealt with knee pain from the time he was in basic training until the time [they] got divorced" and that he sought treatment from a private provider after his separation from service and was told that the only treatments for Osgood-Schlatter's disease were over the counter medication and ice and that the meniscal tears would eventually require surgery. The other, who was married to the Veteran from 1985 to 2004 and continued to live with him, reported that the Veteran "has had ongoing knee pain since [she had] known him." She also reported that he had recently had a right knee replacement and would likely also have a left knee replacement. During the October 2018 hearing, the Veteran testified that his symptoms in both knees began during basic training and that he sought treatment five or six times during his active duty service, but stopped because treatment was not alleviating his symptoms. He also reported having sought treatment from a private provider during the 1970s but that "those doctors are dead and [his] records have been expunged." The Veteran was afforded an additional VA medical opinion in December 2019. The clinician opined that the portion of the September 2015 VA examination report diagnosing left knee strain was inaccurate because it "was speculative" and based on the Veteran's report. The clinician opined that the Veteran's knee disabilities were less likely than not incurred in or caused by active duty service. The clinician noted the lay statements and found them "not consistent with the contemporaneous documented medical record." This is not an adequate rationale, particularly when there is reason to believe that the "documented medical record" is incomplete. However, the clinician also noted that a right knee meniscal tear was not diagnosed until 2003 and a left knee meniscal tear was not diagnosed until 2019. The clinician found that Osgood-Schlatter's disease rarely has complications and sequelae and, when it does, those complications do not include meniscal tears or degenerative arthritis. The Veteran and his former spouses are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, however, although the Veteran and his former spouses are competent to report their observations of his subjective symptoms of knee pain, they are not competent to provide an opinion as to the etiology of his knee disabilities. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran and his former spouses are not shown to possess any pertinent expertise or medical training that would make them competent to render an opinion on the etiology of any current knee disability or to express an opinion about when his symptoms first warranted any medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide a medical diagnosis). Thus, the lay statements that the Veteran's bilateral knee disability had its onset during active duty service are not competent evidence. Rather, the medical findings and opinions of trained medical professionals, including the opinion that the Veteran's diagnosed in-service knee problem cannot have caused his current knee disabilities, warrant greater probative weight than the lay contentions in this case. In addition, the lay statements in this case are conflicting. More recent statements report that the Veteran's knee symptoms have been present since his active duty service but, when seeking treatment in September 2002, he reported a much more recent onset of his right knee symptoms, an account that he repeated in February 2003 when adding that his symptoms had spread to include his left knee. The Board finds that the Veteran's report of his history when he initially sought treatment in 2002 is more credible and of greater probative value than his contradictory accounts and those of his former spouses more than a decade later. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the Veteran). No treatment provider or examiner has found an etiological relationship between the Veteran's current left or right knee disabilities and his active duty service. The December 2019 VA clinician's rationale that the Osgood-Schlatter's disease present during active duty service cannot have caused his current knee disabilities is compelling. Given the conflicting accounts, the Board places greater probative weight on the Veteran's earlier reports of more recent onset of symptoms than of his reports of meniscal tears during his active duty service. Furthermore, the Board has also considered whether service connection for a knee disability is warranted on a presumptive basis as a chronic disease. For the reasons stated above, the Board does not find that continuity of symptoms is at least as likely as not. The Veteran has also contended that his right knee disability was caused or aggravated by his left knee disability but, because service connection for a left knee disability is denied, secondary service connection is not warranted. Because the preponderance of the evidence is thus against finding that the Veteran has a left or right knee disability that is etiologically related to his active duty service, including as based on onset of arthritis within one year of separation from active duty, entitlement to service connection for a left or right knee disability is denied. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.