Citation Nr: 21061562 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-42 470 DATE: October 4, 2021 ORDER Service connection for a bilateral knee condition is denied. FINDING OF FACT The Veteran's bilateral knee condition did not originate during service, was not caused by any in-service event, injury, disease, or disorder, and did not manifest to a compensable degree within one year of service separation. CONCLUSION OF LAW The criteria to establish entitlement to service connection for a bilateral knee condition have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1972 to May 1975. This matter was previously before the Board of Veterans' Appeals (Board) in April 2019 when the issue was remanded for further development. Further development having been completed, the matter is once again before the Board. Service connection for a bilateral knee condition will be denied because the preponderance of the probative evidence is against a finding that the Veteran's current bilateral knee condition is related to his service. Service Connection Service connection may be granted for a current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain disorders, listed as "chronic" in 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is among the chronic diseases listed under 38 C.F.R. § 3.309(a), and therefore presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker, 708 F.3d at 1331. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must first determine the competency of evidence. "Competency" means that the person who makes the statement is qualified by training, education, an occupation, or other reason to make the statement. For example, medical professionals are generally competent through training and experience to express opinions about whether a disability was caused by service. Generally, the opinions of medical professionals such as doctors, psychiatrists, nurses, and others who work in the health care field are evaluated by their apparent training, as well as the detail of their reports and knowledge of the facts in individual cases. Medical professionals may also report various findings of laboratory studies and clinical testing that could be evidence in a claim, such as the level of hearing impairment, blood tests, range of motion testing in joint pain, etc. If a person making a statement is not medically trained (i.e., a "layperson"), the Board must determine in individual cases whether a veteran's particular disability is the type where a layperson's statement may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because they require only personal knowledge of what is observed through senses and not medical expertise. Lay testimony is competent to establish the presence of observable symptoms, where the determination is not medical in nature and is capable of lay observation. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. If the Board finds that the evidence is competent, it must then determine whether the evidence is credible. Credibility is a factual determination it involves deciding whether the testimony or other evidence is believable. Whether a statement is credible is decided after the evidence has been found competent. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board must decide whether the evidence supports the claim, with the veteran prevailing; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. §§ 5107(b); 38 C.F.R. §§ 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. §§ 5107(b). Service connection for a bilateral knee condition is denied. The Veteran alleges that he probably first injured his knee in June, July, or August 1972 while in advanced individual training (AIT), that he further injured his knee getting into and out of tanks in-service, and that his knee has been "getting worse" over the years. For the following reasons, service connection is not warranted, and the claim is denied. During the April 1975 report of medical history at service separation, the Veteran reported then having or ever having had swollen or painful joints. No further details are documented. The April 1975 report of medical examination shows a normal clinical evaluation of the lower extremities. There is no indication of any knee condition. The Veteran's service treatment records do not show complaints, treatment, or diagnosis of any knee condition. The December 2019 x-ray report shows bilateral knee degenerative arthritis. During the January 2020 VA knee and lower leg conditions examination, the examiner noted a diagnosis of bilateral knee osteoarthritis. The examiner noted that the Veteran reported then having, or ever having had swollen or painful joints at service separation, without any specificity as to the impacted joint(s), and a clinical evaluation of the lower extremities was normal. The examiner noted that the Veteran was recently diagnosed with bilateral knee arthritis, corroborated by a December 2019 x-ray showing bilateral knee arthritis. The examiner opined that the Veteran's bilateral knee condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the extent of the Veteran's arthritis appears to be consistent with long-term changes of the joint and was not likely present during service. The examiner noted that the separation examination shows that the Veteran endorsed swollen or painful joints, but the affected joints were not delineated, and the physical examination at separation shows that the Veteran's lower extremities were normal. The examiner stated that had swelling and/or pain been present it would likely have been noted on the physical examination at separation. The preponderance of the evidence is against the claim and the appeal will be denied. Although the Veteran endorsed then having or once having swollen or painful joints at service separation, there is no indication as to the impacted joint(s). The Veteran reported that he was then in "good health," and he was assigned a "1" rating assessing him in a high level of physical fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); ((observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran's capacity and stamina ("P"); upper extremities ("U"); lower extremities ("L"); hearing ("H "); eyes ("E") and psychiatric condition ("S"); assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). The service treatment records do not otherwise contain complaints, treatment, or diagnoses of any knee condition, to include the medical examination at service separation, which shows a normal clinical evaluation of the lower extremities. The January 2020 VA examiner noted the Veteran's endorsement that he then had or ever had swollen or painful joints at separation, and his recent diagnosis of bilateral knee arthritis. The examiner opined that the Veteran's bilateral knee condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Instead, the examiner stated that the Veteran's arthritis appears to be consistent with long-term changes of the joint and was not likely present during service. As the preponderance of the evidence is against finding that the Veteran's current bilateral knee condition is related to his service, service connection is not warranted. While the Veteran believes that his current condition is related to his service, he is not competent to establish a nexus between his current condition and his service. The issue is medically complex, as it requires specialized medical knowledge. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana, 24. Vet. App. at 428. To the extent that the Veteran has alleged continuous symptoms since service, his service treatment records do not contain complaints, treatment, or diagnoses of any knee condition, to include the medical examination at service separation, which shows a normal clinical evaluation of the bilateral lower extremities. As noted above, the Veteran was diagnosed with bilateral knee arthritis by x-ray in December 2019. There is no medical evidence of record that shows that his bilateral knee condition has been ongoing since his service. Therefore, service connection based on a continuity of symptomatology is not warranted. (CONTINUED ON NEXT PAGE) Although the record shows that the Veteran has bilateral knee arthritis, the preponderance of the evidence weighs against a finding that the condition is causally related to his service. Instead, the January 2020 VA examiner did not associate the condition with the Veteran's service. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; 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. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's action is binding only with respect to this matter and is not precedential or establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.