Citation Nr: 21065549 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 15-44 162 DATE: October 26, 2021 ORDER Entitlement to service connection for a left knee disorder is denied. FINDING OF FACT The Veteran's left knee disorder did not manifest within one year of discharge, is not secondary to his service-connected right knee disability, and is not otherwise attributable to service. CONCLUSION OF LAW The criteria for service connection for a left knee disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Marine Corps from December 1993 to December 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. This matter was recently remanded in April 2021 for additional development. A review of the record shows substantial compliance with the Board's prior remand; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that his left knee disorder is related to his service-connected right knee disability. His claim for compensation was received by VA in August 2012. Law and Regulations A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board notes that the Veteran's left knee degenerative arthritis qualifies as a "chronic condition" under 38 C.F.R. §§ 3.307 and 3.309. As such, an alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be also established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1131; 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Factual History and Analysis The Veteran has a current left knee disorder. A June 2021 VA examination report included a diagnosis of left knee degenerative arthritis. The Veteran's claim is for secondary service connection. He has not raised, and the record does not reasonably raise, entitlement to direct service connection for a left knee disorder. The Board's adjudication will consider only entitlement to presumptive and secondary service connection. Therefore, the remaining issues for the Board to decide are: (1) whether the left knee disorder manifested within one year or discharge; and (2) whether the left knee disorder was caused or aggravated by his service-connected right knee disability. The Board finds a preponderance of the evidence to be against the Veteran. Therefore, his service connection claim must be denied. A review of the service treatment records (STRs) reveal no complaints, diagnosis or treatment for left knee issues. While the Veteran complained of joint pain on his October 1995 Report of Medical History, there was no indication that it involved the left knee. In addition, clinical examination of the knee was normal on entrance and separation. There is no indication in the STRs that the Veteran had any problems with his left knee during active duty. The record contains no medical evidence dated between December 1995 and December 1996 - within the first year of discharge from service - indicating any diagnosis or treatment for left knee issues. The first complaint of left knee issues is dated in November 2009 and many years after discharge. There is no probative evidence of the presence of left knee degenerative arthritis to a compensable degree within one year of discharge. Service connection for left knee degenerative arthritis on a presumptive basis is not warranted. A review of the post-service VA and private treatment records show complaints and treatment for left knee issues. Of note, a September 2012 private treatment record noted the Veteran's report that he put too much weight on his left knee, that the left knee had become damaged, and that the pain was severe due to "babying" of the right knee. However, the treating physician did not offer an opinion as to whether the right knee disability caused or aggravated the left knee disorder. A medical history recorded by a health care professional without further analysis does not constitute a competent medical opinion linking a knee disorder to active duty. While the Veteran is competent to report his experienced symptoms, he is not competent to identify the right knee as the cause or aggravating circumstance of his left knee disorder. The medical record does not provide competent evidence of a link between the knee disorder and active duty or a service connected disability. The Veteran underwent a VA examination in October 2012. The examiner gave a negative opinion that the left knee disorder was caused by the service-connected right knee disability. The rationale was that there was no medical evidence that chondromalacia patella in one knee will cause arthritis in the other knee, and that the Veteran had arthritis in his bilateral feet and a history of gout. No aggravation opinion was rendered by the examiner. A VA medical opinion was obtained in July 2015. In the examiner's opinion, there was no evidence that the left knee was aggravated beyond normal disease progression in terms of an increase in the frequency or severity of the symptoms due to the right knee. However, no rationale was provided. The Veteran underwent a second VA examination in April 2018. He was diagnosed with bilateral knee degenerative joint disease. The examiner noted that the degenerative joint disease was a separate and distinct condition and not secondary to or progression of any other service connected conditions. However, no rationale was provided for this opinion. The Veteran underwent a third VA examination in June 2021. He was diagnosed with left knee degenerative arthritis. The examiner also noted the Veteran's report of overcompensation of the left knee due to his service-connected right knee pain. She then gave a negative opinion that the left knee disorder was due to military service. She noted that there was no diagnosis of a left knee condition on entrance and separation. In addition, the examiner noted that the Veteran stated that he began having issues around 2011, years after discharge. The examiner then gave a negative opinion that the left knee disability was caused or aggravated by his right knee disability. The rationale was arthritis in one joint does not cause arthritis in another joint, that while it is not unusual for two joints to share properties in the same person, one joint's disease does not "spread" to another or cause damage to it, and that a thorough review of medical literature failed to show that an injury to one joint would have any significant impact on the opposite uninjured limb. The Board finds June 2021 VA opinion persuasive. The examiner noted the Veteran's self-reported medical history, indicated a review of the claims file, and based his opinion on the Veteran's interview, the claims file review, and the VA examination results. The examiner considered the Veteran's self-reported history of overcompensation of his left knee due to his right knee disability. The Board finds the examination report is based on an accurate factual background. To the extent that the Veteran has alleged he has continuous knee symptomology from military service to the present, the Board finds this allegation is undercut by the contemporaneous evidence of record. The STRs note no complaints for left knee issues throughout the Veteran's entire active duty service. Clinical examination of the left knee on entrance and discharge was found to be normal. In addition, there is no medical evidence immediately after the Veteran's service that note left knee complaints or treatment. The first left knee complaint after service was around November 2009, over 13 years after discharge. He did not indicate that he had continuous left knee pain from active duty until he sought post-service treatment in November 2009. His reference to prior left knee pain without any reference to continuity of the symptomology until the date of treatment supports the Board's finding that the Veteran did not have chronic left knee problems during active duty or for a year after discharge. Finally, the June 2021 VA opinion is the only probative medical opinion of record that addresses the issue of medical nexus between the left knee disorder and his right knee disorder. As noted above, the September 2012 private medical report was speculative and insufficient to establish a link between the left knee disorder and the service-connected right knee disability. In addition, the October 2012, July 2015, April 2018 VA examiners failed to: (1) render rationale for their opinions and (2) failed to render opinions on aggravation. In light of the probative negative nexus opinion and the lack of a probative positive opinion to contradict the negative evidence, there is simply no basis for a grant of service connection for the Veteran's left knee disorder. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran testified at his Board hearing that his left knee disorder resulted from overcompensation due to his right knee disability. As noted above, while the Board acknowledges that the Veteran is competent to report his experienced left knee symptoms, he is not competent to link the left knee complaints to his service-connected right knee disability. As a layperson, he not competent to make a complex medical determination as to the etiology of the Veteran's left knee disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, he cannot render an etiology opinion. In addition, the credibility of the Veteran's allegations of continuous left knee problems since active duty is without probative value as addressed above. Furthermore, a review of the pertinent clinical evidence demonstrates that his left knee disorder was not caused by his military service, including being caused or aggravated by his service-connected right knee disability. Since a preponderance of the evidence weighs against the claim, the Veteran is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001). Therefore, the claim of entitlement to service connection for a left knee disorder is denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.