Citation Nr: 21065438 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-39 316 DATE: October 26, 2021 ORDER Service connection for a right knee disability is denied. FINDING OF FACT The Veteran does not have a right knee disability that is due to his service. CONCLUSION OF LAW The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to June 1979. In January 2020, he testified before the undersigned Veterans Law Judge at a Board hearing. In August 2020, the Board denied the claim. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In June 2021, the Court issued an Order vacating the August 2020 Board decision and remanding the case for compliance with a Joint Motion for Remand (JMR). Additional evidence has been received following the Board's August 2020 decision that it is not accompanied by a waiver of RO review. However, the Board has determined that this evidence is not "pertinent" as defined at 38 C.F.R. § 20.1304 (c). Accordingly, a remand for RO consideration is not required. 1. Service connection, right knee disability. The Veteran asserts that service connection is warranted for a right knee disorder. During his hearing, held in January 2020, he testified that he had right knee symptoms during service, that he has experienced ongoing right knee symptoms since his service, and that he received treatment for his symptoms shortly after separation from service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303 (d). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Arthritis can be service connected on such a basis. Service treatment records show that in August 1977, the Veteran sustained a strain of his right medio-collateral ligament. It was noted that it would take a minimum of four to six weeks to resolve the injury. As a result, the Veteran was medically evacuated back to the United States, as he was not found to be combat ready. He was placed on crutches and was scheduled for physical therapy. An August 1978 "replacement" examination report shows that his lower extremities were clinically evaluated as normal. In an associated report of medical history, the Veteran indicated that he did not have a history of a "'trick' or locked knee." There was a notation of left knee problems at age 19 while overseas. The Veteran's separation examination report, dated in May 1979, shows that his lower extremities were clinically evaluated as normal. In an associated report of medical history, the Veteran indicated that he did not have a history of a "'trick' or locked knee." As for the post-service medical evidence, VA progress notes show that in August 2002, the Veteran reported falling off of a moving train, with complaints that include left knee pain. It was noted that X-rays of the knee did not show a fracture. Beginning in November 2004, the Veteran was noted to report a two-day history of bilateral knee pain. There was a notation of possible early OA (osteoarthritis). A May 2006 report shows that the Veteran reported a two-day history of knee pain, and that he denied a history of trauma to his joints. In September 2010, the Veteran sought treatment for a twisted right knee, reporting that he fell down a flight of stairs the day before and injured his right knee. The assessment noted right knee pain. In 2014, the Veteran sought treatment for right knee pain and stiffness that had lasted for a "few months," also described as having lasted for three to four months, with "no injury." There was also a notation of a one-year history of chronic right knee pain. X-rays showed right knee degenerative changes, manifested by sclerosis of the articular surfaces and osteophyte formation most prominent along the dorsal and inferior pole of the patella. In August 2014, the Veteran sought emergency room treatment for knee pain. He reported that he had been "hurrying" to help a friend and that he slipped on a piece of cardboard and "surfed on it while twisting his ankle and knee." In September 2014, the Veteran reported that he had fallen in the beginning of August, after slipping on something on the floor in a store. He stated that he twisted his knee, and felt increased pain and clicking throughout his knee. A statement from J.D., D.O., a VA psychiatrist, dated in January 2014, shows that she states that shortly after entering service, the Veteran experienced damage to his knee and had to be separated from his unit. She indicated that the Veteran has an acquired psychiatric disorder that is related to his service; the Board notes that this statement does not include an etiological opinion as to a right knee disability. In June 2015, the Veteran was afforded a VA examination at which he was noted to have arthritis and an abnormal range of flexion. The examiner concluded that the Veteran's right knee arthritis was less likely than not related to his service. The examiner explained that there is no evidence of any connection between the Veteran's service and his right knee disability, and that there is no continuum of care from service until 2014. As an initial matter, the Board finds that the Veteran is not a credible historian. The Veteran's diagnoses include psychosis NOS (not otherwise specified), dissociative identity disorder, schizophrenia, and schizoaffective disorder. See VA progress notes. His symptoms have been noted to include audio and visual hallucinations, dissociative symptoms, and obsessional thoughts of aggression toward others. Id. This is evidence of a psychosis, and indicates that he may have been responding to internal stimuli during at least part of the time period on appeal. See 38 C.F.R. § 3.384. Although the Veteran has testified that he has had ongoing symptoms since his in-service right knee injury (in August 1977), his service treatment records do not show any subsequent complaints, findings, or diagnoses pertaining to the right knee following his August 1977 injury. He indicated that he did not have a history of knee symptoms in an August 1978 report of medical history, and in a May 1979 report of medical history (upon separation from service). His lower extremities were clinically evaluated as normal in the associated August 1978 and May 1979 examinations. Following separation from service, he is shown to have reported right knee symptoms beginning in November 2004, with no reports of ongoing right knee symptoms since his service, to include in extensive treatment records that are associated with participation in a wellness center, recreation therapy, and the MOVE program in 2012 (which included exercise, walking, and instruction in fitness techniques, and participation in a "regular workout regimen"). This evidence contradicts his claims of ongoing symptoms since 1977. AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). There is other evidence also indicating a lack of credibility. A June 2017 VA progress note shows that the Veteran was noted to have been working throughout the past year, "but details are sketchy and Veteran is again not forthcoming." VA progress notes dated in 2018 contain multiple notations indicating that the Veteran was seeking to manipulate the VA health care system for financial gain. This evidence notes the following: The Veteran had been involved in a grief group and a social skills group. He presented with interest in groups based on their appointment days versus subject matter or interest, in addition to the travel pay benefit. The Veteran expressed interest to switch individual therapy providers but has not followed up, as had been suggested, but was instead obtaining support from additional staff. The Veteran was notified of the inappropriateness of his behavior. The Veteran appears to be repeating his pattern of overreliance on group treatment for secondary gain, including travel pay. The Veteran was counseled regarding the inappropriateness of his self-referrals and his identified interest in travel pay as an element of his engagement. He was requested to discontinue this strategy. Based on the foregoing, the Veteran is found not to be a credible historian. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board finds that service connection for a right knee disability is not warranted. The Veteran was treated for right knee symptoms in August 1977, with no subsequent findings, complaints, or diagnoses involving the right knee during the remainder of his active-duty service, a period of over a year and a half. The Veteran was not shown to have a right knee disability upon separation from active-duty service. At that time, he indicated that he did not have a history of knee trouble. Accordingly, a chronic condition is not shown during service. See 38 C.F.R. § 3.303. Following separation from service, the Veteran is first shown to have reported right knee symptoms in 2004. This lengthy time period weighs against the claim, as this is about 24 years after separation from service, and the Veteran's assertion of ongoing right knee symptomatology since his service has been found not to be credible. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no evidence of right knee arthritis within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. The Veteran is shown to have had two post-service right knee injuries, in September 2010 and August 2014, and there is no competent evidence of record in favor of the claim. The only competent opinion is the June 2015 VA medical opinion, and this opinion weighs against the Veteran's claim. Accordingly, the claim must be denied. The Board has considered the JMR, which notes that at his January 2020 hearing, the Veteran stated that he began seeing doctors for his knee "when he got out" of service, that this testimony was not available to the June 2015 VA medical examiner, and that the Board did not address whether the Veteran's testimony provided a basis for a nexus between the Veteran's right knee condition and his in-service injury. However, in this decision, the Board has determined that the Veteran's assertion of ongoing right knee symptomatology since service is not credible. Caluza. The earliest post-service medical evidence sufficient to show right knee symptoms is dated in 2004, which is many years after separation from service. As such, the examiner's basis for his opinion is not undermined by the Veteran's testimony and thus the opinion is found to be adequate. This adequate opinion has not been undermined or challenged by any competent medical evidence. Given this conclusion, as well as the fact that there is no reasonable possibility that another VA medical examination would assist the Veteran in substantiating his claim, the duty to assist is not triggered. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to an appellant are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, service connection for a right knee disability is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S.E., 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.