Citation Nr: 21064041 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 15-35 684 DATE: October 18, 2021 ORDER Entitlement to service connection for a right knee disorder is denied. FINDING OF FACT The Veteran has not been shown to have a current right knee disorder that manifested in service or within one year thereafter or that is otherwise causally or etiologically related to his military service. CONCLUSION OF LAW A right knee disorder was not incurred in active service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. The Board remanded the case for further development in October 2019. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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 may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. 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). Service connection may also 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As arthritis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a right knee disorder. In his January 2015 notice of disagreement, the Veteran reported that he was treated at Fort Sherman in Panama for crushed ligaments in his right knee in July 1971. He indicated that the injury was sustained when he fell off a rappelling wall during jungle training and that he was kept overnight before returning to the ship. During the March 2019 hearing, the Veteran testified that he injured his right knee when he hit the ground hard during a rappelling demonstration at Fort Sherman in Panama. The Veteran stated that, although he was able to get up after hitting the ground, he began to experience pain in his right knee and was instructed to leave the demonstration and to report to sick bay. The Veteran reported that he was diagnosed as having crushed ligaments in his right knee and was prescribed medication. He also indicated that he had a cast placed over his entire right leg, including his knee, but he could not remember the length of his stay in the hospital. The agency of original jurisdiction (AOJ) requested any inpatient clinical records for treatment of a right knee injury dated from July 1, 1971, to July 31, 1971, at Fort Sherman in Panama. However, there were no records located, and the claims file contains the Veteran's service treatment records and military personnel records. The Veteran's service treatment records are negative for any complaints, diagnosis, or treatment of a right knee disorder. His service personnel records show that he did participate in jungle training for ten days from July 18, 1971 to July 28, 1971. However, on August 10, 1971, the Veteran completed and passed a physical fitness test. A July 1974 separation examination also found his lower extremities to be normal, and the only marks or scars noted related to a ring finger skin graft on his left hand. The Board notes that neither arthritis nor manifestations sufficient to identify the disease entity are shown during service. The pertinent regulations require that manifestations are "noted" in the service records, and that is not the case in this instance. Moreover, arthritis must be objectively confirmed by x-ray. 38 C.F.R. § 4.71a , Diagnostic Code 5003. In this case, there is no objective evidence showing that the Veteran had arthritis within the first year after his separation from service. Therefore, while arthritis is a chronic disease under 38 C.F.R. § 3.309(a), no notations of the disease or any characteristic manifestations were shown in the service records. As such, service connection under 38 C.F.R. § 3.303(b) is not warranted, and arthritis may not be presumed to have incurred in service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309. Moreover, the medical evidence does not show that the Veteran had any right knee problems, including arthritis, within one year of his period of active duty. In fact, there is no medical evidence pertaining to a right knee disorder for many decades thereafter. The Board has considered the Veteran's lay statements that he sustained a right knee injury in service and has continued to have problems since that injury. Lay persons are competent to report observable symptoms, such as problems since the Veteran's military service. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he or had had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, although laypersons are competent to report an injury in service and symptoms since that time, the Board finds that such statements are not credible. The allegations are inconsistent with the contemporaneous record. As discussed above, the Veteran has reported that he was hospitalized for a right knee injury during jungle training in Panama in July 1971, that he was diagnosed with crushed ligaments in his right knee, and that he was placed in a cast over his entire right leg. However, his service records show that he passed a physical fitness test shortly thereafter on August 10, 1971. The service treatment records do document other orthopedic and musculoskeletal issues, including a swollen right ankle, right upper arm and shoulder pain, and a right ring finger injury. However, there was no documentation of any complaints, treatment, or diagnosis of a right knee disorder in service. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Moreover, the Veteran's lower extremities were found to be normal during a separation examination. Thus, there was actually affirmative medical evidence showing that he did not have a right knee disorder at the time of his separation from service (rather than a mere absence of evidence). For these reasons, the Board finds the reports of onset and continuity of symptomatology to be not reliable or credible. Therefore, the Board concludes that the weight of the competent, credible, and probative evidence shows that a right knee disorder did not manifest in service or for many years thereafter. In addition to the lack of evidence showing that the claimed disorder manifested during active duty service or within close proximity thereto, the evidence of record does not link any current diagnosis to the Veteran's military service. A December 2015 MRI report noted a clinical history of a prior crush injury with persistent pain. However, there was no indication as to when such an injury would have occurred. The MRI revealed a medial meniscal tear, a posteromedial meniscal cyst, and prominent trochlear chondromalacia. The Veteran was afforded a VA examination in January 2020 during which he was diagnosed with bilateral meniscal tear and bilateral knee joint osteoarthritis. The examiner opined that the Veteran's right knee disorder was less likely than not incurred in or caused by his military service. He acknowledged the Veteran's report that he has had right knee problems since falling and hitting the ground during a rappelling demonstration while in jungle training at Fort Sherman in July 1971. However, the examiner also observed that the Veteran passed a physical fitness test one month later in August 1971 and that the service treatment records, including a July 1974 separation examination report, are completely silent for a knee problem, injury, or condition. There was no indication that he required a long-term, continuous exemption from weight-bearing and/or strenuous physical activity or orthopedic surgical intervention that could possibly bear a clinically reasonable association with subsequent chronic knee problems. He further found that there were no medical records documenting either a continuous, ongoing, chronic knee condition proximately subsequent to military service (6-24 months thereafter) and/or consistent and repeated objective evidence demonstrating a clinically plausible medical nexus associated with the Veteran's current knee condition. In addition, the examiner noted that the Veteran was not diagnosed with a right knee disorder until 40 to 50 years after his military service. There is no medical opinion otherwise relating the Veteran's current right knee disorder to his military service. The Board acknowledges the Veteran's lay statements that his current right knee disorder is related to an injury in service. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the diagnosis and etiology of a right ankle disorder, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset of the disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Moreover, even assuming the lay assertions regarding etiology are competent, the Board nevertheless finds the VA medical opinion to be more probative, as it was based on a review of the record and the examiner's own medical expertise, training, and knowledge. The examiner supported his conclusion with rationale and considered the Veteran's medical history, including his own statements. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a right knee disorder. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a right knee disorder is not warranted. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.