Citation Nr: 21067275 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-42 491 5DATE: November 3, 2021 ORDER Entitlement to service connection for left knee disorder is denied. FINDING OF FACT The preponderance of the probative evidence of record demonstrates that the Veteran does not have a left knee disorder which is etiologically related to his active duty 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1985 to July 1990. These issues come before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. This issue was previously before the Board in March 2021 and July 2021 when it was remanded for further development, which has not been completed. Stegall v. West, 11 Vet. App. 268, 271. 1. Entitlement to service connection for left knee disorder is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "To establish a left to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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). The Board finds that the Veteran currently has a left knee disorder. The April 2021 VA examination included a diagnosis of degenerative arthritis, other than posttraumatic. See April 2021 VA Examination. There is evidence of an in-service injury or event. At his Board hearing, the Veteran testified that during an in-service exercise his left knee hit a pintle hook on the rear of the vehicle. See January 2021 Board Hearing. The Veteran's service treatment records (STRs) corroborate this incident, noting that the Veteran experienced knee pain and swelling after he struck his left knee on a trailer hitch in May 1987. See Medical Treatment Records. The Veteran presented with a small effusion and contusion over the superior half of the patella. He had a full range of motion in his left knee and that ambulated without much difficulty. At a June 1987 follow-up appointment, the Veteran appeared with no deformity, stable ligaments, a tender left patella, and a full range of motion in his left knee. Additionally, in June 1987, the Veteran had an x-ray to investigate "patella trauma." See Service Treatment Records. The x-ray was interpreted as revealing a normal patella with benign critical defect found in the distal femur, with no finding of significant abnormality. In June 1987, the Veteran was restricted to "no running, marching, [or] prolonged standing" due to the "contusion of the left patella." See Physical Profile Serial Report. Finally, in August 1989 the Veteran reported that his left knee was hurting. See Service Treatment Records. There are no further notations of treatment or complaints in the Veteran's STRs. The record contains no medical evidence dated between July 1990 and July 1991 - within the first year of discharge from service - indicating any diagnosis or treatment for left knee issues. The first mention in post-service VA and private medical treatment records of left knee issues is a May 2010 x-ray examination report that found no joint space narrowing, with no effusion present. The x-ray results were interpreted as showing a well-defined sclerotic lesion present in the posterior medial metaphysis of the distal femur and found that the findings most likely represent a benign bone lesion such as an ossifying fibroma. See Medical Treatment Records. The Veteran presented with a full range of motion and was positive for crepitus but there was no swelling or euthymia. The other post-service medical treatment notes are reports of left knee pain in May and November 2010. There is no probative evidence of the presence of a left knee disorder to a compensable degree within one year of discharge. The Veteran underwent a VA knee examination in February 2016. See February 2016 VA Examination. He was diagnosed with left knee degenerative arthritis. The examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury event, or illness. The examiner noted that the STRs were not consistent for chronic, recurrent knee pain with no documented post-service pain complaints to support an ongoing condition that began in the military. An addendum VA medical opinion was issued in September 2016. See September 2016 VA Opinion. The examiner gave a negative opinion that the left knee disorder was the result of military service. The examiner noted that there were no medical records indicating in-service chronic knee complaints. She then noted that while there were complaints of in-service knee pain, but there was no documented chronic knee condition until 2016. The Veteran underwent another VA examination in April 2021. See April 2021 VA Examination. The examiner gave a negative opinion that the Veteran's left knee disorder was the result of military service. The Veteran was diagnosed with degenerative arthritis, other than post-traumatic in 2016. The examiner noted that the Veteran reported that he injured his left knee in 1987 and that STRs corroborate his experience. However, the examiner's May 2010 left knee x-ray was noted to be normal and arthritis was not found until February 2016, when an x-ray was interpreted as revealing moderate narrowing of both compartments. The examiner opined that "it is not physiologically reasonable that the veteran could have injured his left knee as he states in 1987 and that he would have a normal x[-]ray in 2010 but that the 1987 injury would then cause arthritis in 2016." In July 2021, an addendum VA opinion was completed. See July 2021 VA Opinion. The examiner opined that the Veteran's left knee degenerative arthritis is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner considered the November 2010 x-ray that does not show any abnormality of the knee, though does note pain. Then, in February 2016, the Veteran had another x-ray that showed "moderate narrowing of both compartments." While the Veteran's STRs include complaints of knee conditions and complaints, there is no documentation of a chronic knee condition. The examiner pointed to the June 1987 record which show complaints of left knee pain but the assessment showed resolving contusion left patella. Also, the 1987 left knee x-ray note specifically states there is no significant abnormality. Finally, the February 2016 x-ray that shows '"moderate narrowing of both compartments' is quite mild." The examiner opined that "[i]f the veteran had been having constant pain ever since the 1980's, including multiple reported episodes of the knee "buckling" or "giving out" one would certainly expect to see a more severe x[-]ray." The examiner considered the Veteran's reports of pain and multiple episodes of left knee pain since hitting his knee on a hitch in service. However, the examiner found that "it is not physiologically reasonable to conclude that [a] left knee injury incurred in service before [July 6, 1990], had a normal x-ray at that time, and could have caused some condition that did not result in Degenerative Arthritis until 2016." The Veteran, through his representative, submitted a Statement in Support of Claim in October 2021 which contested the competency of the examiner who completed the July 2020 opinion. Notably, the statement indicated that the examiner was a general practitioner instead of an orthopedic specialist but that it is not "doubt[ed] that Dr. Katz is a competent doctor." As such, the Veteran has not specifically challenged the qualifications of an examiner, examination, or opinion, rather, the Veteran general asserts inadequacy in the examiner's evaluation of the Veteran's lay statements of continuity of symptoms. A specific challenge is required to warrant further discussion of an examiner's competence. Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). The Veteran has not satisfied the requirement of raising a specific challenge to a VA examiner's competence in the first instance. The Board finds the July 2021 VA opinions persuasive. The examiner noted the Veteran's self-reported medical history, indicated a review of the VA e-file, and based his opinion on this review. The examiner considered the Veteran's self-reported history of continuous left knee problems. The Board finds the examination report is based on an accurate factual background. The Board gives greater probative weight to the contemporaneous medical records over the Veteran's subsequent reports of medical history. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The Veteran has alleged that he has knee pain since he injured his knee in service. The STRs note normal range of motion and x-ray with an opinion that states there is no significant abnormality. There was no clinical examination of the left knee at discharge. Additionally, there is no medical evidence immediately after the Veteran's service that note left knee complaints or treatment. The first medical note of left knee pain after service was in May 2010, almost 20 years after discharge. The Board finds it reasonable to assume that, if the Veteran had had problems with his left knee during active duty and post-service, he would have reported these issues to the treating clinicians and sought treatment sometime prior to this. He did not do so. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). Based on the medical records before the Board, the Veteran did not indicate that he had continuous left knee pain from active duty until he sought post-service treatment in May 2010. Finally, the July 2021 VA opinion is the only probative medical opinion of record that addresses the issue of medical nexus between the left knee disorder and active duty. In light of the probative negative nexus opinion and the lack of a probative positive opinion to contradict the negative evidence, there is no basis for a grant of service connection for the Veteran's left knee disorder. (Continued on the next page) 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 contends that his left knee disorder began in-service after hitting his knee on a trailer hitch. While the Board acknowledges that the Veteran is competent to report his experienced left knee symptoms, he is not competent to link his left knee complaints to his active duty service. As a layperson, the Veteran is 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). Furthermore, a review of the pertinent medical evidence does not demonstrate that that he had continuous left knee pain from active duty. 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 left knee disorder is denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.