Citation Nr: 21066705 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 09-27 741A DATE: November 1, 2021 ORDER Service connection for bilateral knee disabilities is denied. FINDINGS OF FACT 1. The Veteran does not have a current right knee disability that was incurred in service or diagnosed within the presumptive period after discharge. 2. The Veteran does not have a current left knee disability that is secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a right knee disorder have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria to establish service connection for a left knee disorder have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training (ACDUTRA) from April 1985 to September 1985, and active-duty service from January 1991 to March 1991. The procedural history of this claim is outlined in the February 2017, August 2019, September 2020, and February 2021 Board of Veterans' Appeals (Board) and Court of Appeals for Veterans Claims (CAVC or Court) remands and decisions. Most recently the case was remanded in February 2021 for additional evidentiary development and addendum medical examinations and opinions. All actions ordered by the remand have been accomplished. Because the Veteran does not demonstrate a current right knee diagnosis, to include functional loss due solely to pain, the appeal for service connection for both a right knee disorder as directly related to active service and a left knee disorder as secondary to a right knee disorder is denied. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). "Active military, naval, or air service" includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Active duty for training is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). Active military, naval, or air service also includes any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebral vascular accident occurring during such training. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Inactive duty training means, inter alia, duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). 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 a "chronic disease" listed under 38 C.F.R. § 3.309 (a). Therefore, the 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 v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. The Board must analyze the competency and credibility of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept it means that the person or person who makes the statement is qualified by training, education, an occupation, personal experience, or other reason to make the statement. Credibility is a factual determination it involves deciding whether the testimony or other evidence is believable, and the determination is made after the evidence has been found competent. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. 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 this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). 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. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for bilateral knee disabilities The Veteran contends he has a current right knee disorder that was incurred during a period of active service. He also contends that he has a left knee disorder that is secondary to his right knee disorder. The Veteran April 1985 report of medical history at enlistment indicates he denied a "trick" or locked knee. His clinical lower extremities evaluation was normal. There is no indication the Veteran reported a preexisting right knee condition at enlistment. He was given a "1" PUHLES profile for his lower extremities. 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 Veteran completed active duty for training (ACDUTRA) in September 1985. There are no complaints, diagnoses, or treatment for a knee condition during ACDUTRA. On a May 1989 report of medical history at a routine evaluation, the Veteran again denied "trick" or locked knee but endorsed broken bones. The examiner's notes indicate the Veteran reported breaking his knee in sixth grade in a motorcycle accident. However, the examiner noted that the Veteran's knee demonstrated full range of motion and normal strength with "no problems." The examiner's notes also indicate the Veteran was "able to run PT" (physical training). His clinical lower extremities evaluation was normal, and he was again given a "1" PUHLES profile for his lower extremities. In January 1991 the Veteran was ordered to active duty. There is no examination in the record conducted pursuant to this activation. However, there are also no complaints, diagnoses, or treatments for a knee condition during this period of active-duty service. On his March 1991 report of medical history at separation the Veteran again denied a "trick" or locked knee. His clinical lower extremities evaluation at separation was normal, and the Veteran was again given a "1" PUHLES profile for his lower extremities. Relevant to his assertions of in-service knee injuries raised during this appeal, during his March 1991 separation physical examination the Veteran specifically denied then having, "or ever having" any illness or injury other than those he noted in the examination questionnaire. These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803 (4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). VA treatment records show the Veteran had a post-active service motor vehicle accident in 1998 and has been prescribed narcotic pain relief medication for bilateral knee and back pain since at least 2004. In 2010 the Veteran was assaulted as he left his place of employment. He sustained multiple traumas, blunt force injuries to his face and torso and fractured his foot and lost consciousness. An October 2010 x-ray of his left knee after the assault showed anatomic alignment without any acute fracture or dislocation. A May 2011 non-VA treatment record from "Primary Care Physicians" indicates the Veteran had a normal gait without assistive device. He could squat and return to an erect position without using his hands. Although he could not perform heel to toe ambulation, he had full range of knee motion for forward flexion, extension and lateral flexion. The Veteran alleged at his September 2016 Board hearing that his active service duties of road marching and running "aggravated" his right knee. He testified that he reported to a medical examiner at basic training that he was experiencing pain, clicking, and popping sounds, but that the medical examiner told him to "keep going" through basic training. As noted above the Veteran's STRs do not reveal any complaints, diagnoses, or treatments for a right or left knee condition. Instead, they reveal that the Veteran denied having relevant complaints, and was evaluated under the PULHES profiling system as being in a high state of physical fitness. November 2016 imaging of his bilateral knees revealed no acute injury; no significant degeneration; and no significant tissue abnormality. The radiologist did not provide a clinical diagnosis as to either knee. At an April 2021 VA medical examination for knee conditions, the examiner reviewed the Veteran's medical records and conducted an in-person examination. The Veteran reported he had a pre-service motorcycle accident and an injury to his right knee but denied severe complications or problems after the knee healed. The Veteran also alleged to the examiner that he went through basic training twice and appears to allege in part that his second period of basic training was due to physical difficulties. However, his report of service (DA form 2-1) indicates he entered basic combat training on April 24, 1985 and completed the course on July 20, 1985 in regular order, without transfer or any lapse in regular instruction. There is no suggestion that the Veteran was unable to complete basic training as he alleged, nor support for his report of knee symptoms during AIT (advanced individual training). He stated he was seen several times for his right knee and shin pain but that eventually he stopped reporting pain to sick call because the treatment he received did not help. The Veteran denied flareups but endorsed functional loss and impairment due to pain. He also endorsed low-level pain in his left knee and that theorized that his left knee pain was due to compensating for his right knee. The Veteran demonstrated reduced range of motion (ROM) in his right knee due to his large thigh meeting his large calf, but otherwise demonstrated normal ROM, with pain on flexion and weight-bearing, and with tenderness on palpation. On repetitive-use testing the Veteran's right knee demonstrated a functional loss of 5 degrees with flexion. The Veteran's left knee demonstrated similar abnormal ROM results due to his large thigh meeting his large calf but did not demonstrate pain on ROM testing or with weight-bearing and did not demonstrate tenderness on palpation. Significantly as it bears on the question of a current disability, the examiner noted that the abnormal ROM did not contribute to functional loss or functional impairment for either knee. The examiner reviewed the November 2016 x-ray results for the Veteran's bilateral knees, which did not reveal any abnormalities for either knee. The functional impact of the Veteran's current bilateral knee conditions was described as slowing him down in the evening, and that he could perform "all activities" but with increased pain. The examiner indicated the Veteran did not demonstrate a diagnosable right knee condition. In May 2021 the Veteran was examined for an abscess on his left thigh. Imaging of his left knee showed alignment within normal limits, no significant joint effusion, and no acute bony abnormality. In an August 2021 addendum opinion, the opined that the Veteran's left knee also did not demonstrate a current chronic diagnosable condition, noting that it demonstrated normal ROM; had normal x-rays; and that his mild left knee pain did not cause functional impairment. The examiner also noted there was no history of an injury to his left knee during active service. With regards to the Board's August 2019 determination that the Veteran had a preexisting right knee condition that was aggravated during service, the Board now finds that the Veteran did not have a preexisting right knee condition when he entered service in April 1985. After careful review, the May 1989 examiner's notation that the Veteran broke his knee as a child but that his right knee demonstrated as normal does not constitute clear and unmistakable evidence the Veteran entered military service with a preexisting right knee condition. See McKinney v. McDonald, 28 Vet. App. 15, 23 (2016) (holding that noting only a history of a condition at the time of the entrance examination 'does not constitute a notation' of a preexisting condition); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (noting that the presumption of soundness only attaches "where there has been an induction examination in which the later-complained-of disability was not detected"). The Veteran did not report the broken knee at his April 1985 entrance examination and was rated as having a high level of fitness in his lower extremities. The Veteran does not claim that he had an aggravation of an undetected right knee condition, but rather that his service caused his current right knee condition. Thus, the Board finds there is no preexisting right knee condition at either his entrance in April 1985. With regards to direct service connection for a right knee disability, the preponderance of the evidence is against the claim. There is no probative medical evidence that indicates the Veteran has a current compensable right knee disability that was incurred in service or diagnosed within the presumptive period after discharge. At the April 2021 VA medical examination, the Veteran's right knee demonstrated with pain on flexion, with weight-bearing, and with mild tenderness to palpation. However, the examiner noted the Veteran's right knee symptomatology did not warrant a current diagnosis, nor resulted in occupational functional impairment beyond personal aggravation due to increased pain in the evening. The Veteran's current right knee symptomatology does not qualify as a disability due solely to pain. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018) (holding that pain alone may qualify as a compensable disability when it causes functional loss, and "that pain need not be diagnosed as connected to a current underlying condition."). VA treatment records indicate the Veteran has been taking prescription narcotic pain relief medication for many years, with several years being under scrutiny for over-using his narcotic medication. In all the time that the Veteran has received supervision and treatment from his treating physician, the VA pain clinic, and engaged in physical therapy for his knee pain, no physician has diagnosed the Veteran with a current right knee disability. Furthermore, the Veteran has not reported any functional loss or impairment, to include occupational difficulties, related to his right knee condition beyond personal aggravation of having to deal with increased pain by the end of the day. Although the Veteran reported right knee pain since service, the Veteran denied any knee symptomatology at separation from ACDUTRA and active-duty service, and the first complaints of knee pain to a medical professional were evaluated many years after service. With regards to the secondary service connection for a left knee disability, the preponderance of the evidence is against the claim. Since the Veteran's claim for service connection for a right knee disability has been denied, the claim for service connection for a left disability is also denied. In addition, the Board notes that the Veteran's left knee also does not demonstrate sufficient symptomatology, restricted mainly to mild pain, to qualify as a compensable disability due solely to pain. The Veteran's left knee does not warrant a current diagnosis of a condition and his left knee symptomatology does not result in functional loss or impairment beyond personal aggravation. See Saunders v. Wilkie, supra. Thus, the Veteran does not have current right nor left knee disabilities with which to claim service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof of a present disability there can be no valid claim."). The Veteran has continuously asserted throughout the appeal that he has current bilateral knee conditions that are a result of his active-duty service. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to diagnose and establish a nexus through his own lay assertions, the Veteran is not competent to diagnose a knee condition nor offer opinions as to the etiology of any knee disorders. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Knee conditions require specialized training for determinations as to diagnosis and causation and are therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a diagnosis or nexus opinion nor attempt to present lay assertions to establish a nexus between his current symptomatology and its relationship to his service. In addition, the record contains inconsistent statements regarding the onset of symptoms and the diagnosis and treatment of the condition that minimize the probative weight of the Veteran's observations of symptoms. Caluza v. Brown, 7 Vet. App. 498 (1995) (holding the Board has a duty to ascertain the credibility of testimony put before it and may consider multiple factors, including self-interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of witness when weighing credibility.). In a September 2000 physical therapy session, the examiner noted the Veteran gave vague answers regarding pain-related questions. May 2001 treatment records indicate a VA examiner considered the Veteran to be malingering to obtain prescription narcotic medication, albeit for his back. The examiner indicated the Veteran showed no evidence of a physical handicap or physical limitation. Furthermore, medical records indicate the Veteran has experienced a motor vehicle accident (MVA) and work-related accidents without providing additional specifics about the resulting symptoms, diagnoses, and treatments. Given these inconsistencies noted by treating physicians, the Veteran's statements that his current right and left knee conditions cause compensable functional impairment and were incurred during a period of active-duty service are not credible to warrant further medical inquiry. The claim for service connection is denied. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.