Citation Nr: 21065076 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 15-11 502 DATE: October 25, 2021 ORDER Entitlement to service connection for chronic disease or disorder manifested by right knee pain is denied. FINDING OF FACT The preponderance of the evidence demonstrates that the Veteran's current chronic disease or disorder manifested by right knee pain, diagnosed as patella femoral syndrome, did not have its onset during active service, is not otherwise causally related to an in-service disease or injury, and is not causally related to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic disease or disorder manifested by right knee pain have not been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 5, 1990 to September 15, 1994, in the U.S. Navy. His initial VA Form 21-526 Veteran's Application for Compensation or Pension received on September 28, 1994, lists his military occupational specialist as a Boiler Technician Fireman (BT FN). This application was filed within days of his discharge and does not list a chronic disease or disorder of the right knee, but does list chronic back pain, dislocated left shoulder and right-hand pain. Statements and post-service clinical evidence assembled in connection with the September 1994 claim are similarly silent for any reference to a right knee disability or an in-service right knee injury. At a November 1994 VA examination, the Veteran reported sustaining a left shoulder injury when he fell down some steep steps. He made no reference to injuring his knee in this incident and his medical examination revealed no evidence of a right knee disability. On May 27, 2011 the Veteran filed a VA Form 21-526 Veteran's Application for Compensation or Pension seeking service connection for right knee pain along with a number of other conditions. Approximately two months later on July 29, 2011, the Veteran filed a VA Form 21-4138 - Statement in Support of Claim alleging his right knee pain was due to his active-duty service on the USS Cape Cod where he worked with riggings, pulled up pumps, and operated heavy equipment. All other subsequent filings, medical records, and other accounts of his active-duty service detail an entirely different account of how the Veteran injured his right knee. On July 29, 2011, the Veteran filed another VA Form 21-4138 Statement in Support of Claim alleging he injured his right knee while serving on the USS Independence. He explains his right knee was injured when he jumped off his top bunk bed and hit his knee on a nearby bunk during his fall. VA treatment records offered contemporaneously in furtherance of medical treatment for his right knee post active-duty service are consistent with his assertion that his right knee pain occurred shipboard during a fall off his top bunk bed. However, during active-duty service there is no indication the Veteran sought medical treatment for this injury or any lingering effects as a result of this injury. The only reference in the Veteran's military service record of injury to the Veteran's right knee was a 1.5 inch by 1 inch scrape received while surf boarding. The Veteran sought treatment once and had no continued complaints of pain, limited range of motion or other lingering effects during active-duty service. Moreover, at his September 1994 separation examination, the Veteran completed a report of medical history on which he endorsed multiple complaints, including left shoulder and low back pain, but specifically denied having or ever having had a trick or locked knee. Additionally, his lower extremities were examined and determined to be normal. In Horn v. Shinseki, 25 Vet. App. 231 (2012), the Court noted in a footnote that "as a general matter, the absence of evidence is not substantive negative evidence. While the majority agrees that this is not an absolute rule, there must be 'a proper foundation... to demonstrate that such silence tends to prove or disprove a relevant fact'." The Court also referenced Federal Rule of Evidence 803(7) and cited Buczynski v. Shinseki, 24 Vet. App. 221 (2011) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded." A review of the record reveals the earliest evidence of a complaint of right knee pain occurred on March 16, 2006. The Veteran presented to his treating physician with complaints of right knee pain and advised he had been suffering with knee pain for the last four months. X-rays of the right knee were normal. As a result, the Veteran was ultimately diagnosed with patella femoral syndrome (PFS). The Veteran contends his right knee pain is as a result of an in-service injury, event, or disease. Alternatively, he contends that his right knee pain is a result of and secondary to his already service-connected back condition. In support of these contentions, the Veteran submitted a November 20, 2018, medical opinion from Eunice A. Muskett, PA-C, MT his treating provider for seven years. The provider opined the Veteran's legs and knees were showing signs of overcompensation as a result of his service-connected spine condition. The provider did not mention the Veteran's diagnosed condition of PFS or identify any another other medical condition associated with the Veteran's right knee pain. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. One of the cornerstone requirements of a service connection claim is the presence of a current disability, without which there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). On April 23, 2021, the Board of Veterans' Appeals (the Board) remanded the Veteran's claim for service connection for chronic disease or disorder manifested by right knee pain for further development and for the medical examiner to provide a medical opinion concerning service connection. The Board requested a medical opinion concerning whether the Veteran's right knee condition began during service or is at least as likely as not related to an in-service injury, event, or disease. On August 5, 2021, a C&P examination was conducted. The VA examiner conducted an in-person examination and reviewed the Veteran's treatment records. The VA examiner ultimately opined the Veteran's right knee condition was not caused by his military service. The Board may not rely on a medical opinion where the absence of evidence of treatment for a claimed disability in the Veteran's service treatment records is the sole basis for the negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim); Buchannan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The VA examiner's report reflects that the examiner reviewed the Veteran's claims folder in reaching his ultimate conclusion, including the service treatment records, the normal findings on separation, and the fact that the Veteran was able to perform his military duties successfully and engage in cardiovascular and weight training. He notes that the Veteran's account of his right knee injury was not documented in service. Further, no evidence exists in his service treatment records for injury or disease of the right knee other than a one-time visit for a skin abrasion to his right knee as a result of surfing. As a result, the examiner concludes the right knee condition was not manifested in service. A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310 (a), (b). The VA examiner concluded that the Veteran's current right knee disability is less likely than not caused or aggravated by his service-connected back disability. The VA examiner opined that orthopedic conditions are reflected up and down the body. The Veteran's knee condition of PFS is inconsistent with the known and/or probable progression of the Veteran's service-connected back condition. Thus, in the VA examiner's opinion, the back condition could not have been aggravated by the knee condition. The November 20, 2018, medical opinion submitted by the Veteran does not explain in detail how the service-connected back condition caused or aggravated the knee condition. Further, it does not provide an opinion regarding the Veteran's claims that the knee condition was the result of an in-service injury, event, or disease. For these reasons, the Board assigns less probative weight to this opinion than to the VA medical examinations discussed above. In a December 2008 treatment record, the Veteran complained of right knee pain and indicated his condition was made worse by prolonged sweeping and shoveling required for his construction job. The Board notes the Veteran engaged in arduous occupations post active-duty service. The record reflects the first complaint of right knee pain appears in the record twelve years post military service and after a considerable time employed in the occupations of railroad engineer and construction worker. This is consistent with the rationale provided by the VA examiner, who found it notable that the Veteran had performed his military duties and physical training without difficulty. The Board has considered the appellant's lay contentions that his service-connected his right knee disability caused or aggravated his right knee injury condition. The appellant is competent to testify to facts which he had actually observed or experienced or which are within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the record does not indicate that he has the necessary training or experience to provide a competent opinion regarding the etiology of his right knee injury condition. The condition involves internal, unobservable processes that require diagnostic imaging and testing to diagnose and understand. The etiology of such a condition also requires an understanding of internal pathophysiology that is outside the appellant's known area of competence. As such, the Board affords greater probative weight to the VA examinations and medical opinions of record. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). As a result, the Board concludes that, while the Veteran has a diagnosis of PFS, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease, or is causally related to or aggravated by a service-connected disability. Danette L. Mincey Veterans Law Judge Board of Veterans' Appeals 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.