Citation Nr: 21067525 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-24 945A DATE: November 4, 2021 ORDER Entitlement to service connection for right knee disability is denied. FINDING OF FACT The most probative evidence of record weighs against finding that the Veteran's right knee disability began during active service, manifested to a compensable degree within the presumptive period, or is otherwise related, proximately due to, or aggravated beyond natural progression by an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a right knee disability 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 has active service from August 1995 to October 2008 that is honorable for VA purposes, and service from October 2008 to June 2010 that is not honorable for VA purposes (6/30/2010 Administrative Decision). This case is before the Board of Veterans' Appeals (Board) from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans' Law Judge (VLJ) at a March 2020 hearing. In May 2020 and December 2020, the Board remanded this issue for additional development, specifically an examination that adequately addresses the nature and etiology of any right knee disability. July 2020 and December 2020 examinations were obtained, however the Board found them insufficient. A May 2021 remand was issued for a new examination. A telehealth examination was obtained, substantially complying with the Board's remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, appellate review may proceed. Service connection for right knee disability. The Veteran contends that he is entitled to service connection for a right knee injury (11/05/2014VA 21-526b, Veteran Supplemental Claim; 7/28/2015 NOD). He asserts that his right knee disorder began in service, as early as 1996. The Veteran attributes knee pain to being on his feet all day as a cook, in addition to working patrol and guard duty (3/06/2020 Correspondence, pg. 3; 7/28/2015 NOD). Since then he describes persistent, chronic limitation of motion and pain in his right knee (6/6/2016 Form 9). The Veteran is service connected for a number of disabilities of the lower extremities, including plantar fasciitis with pes planus, residuals fracture left foot, and lumbosacral strain (06/18/2019 Rating Decision - Codesheet). 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). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In addition, where a veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a chronic disease manifests to a degree of 10 percent or more within 1 year from the date of separation from service, that disease is presumptively service connected. 38 C.F.R. §§ 3.303 (b), 3.307(a)(3). Arthritis is contemplated as chronic disease under 38 C.F.R. § 3.309(a). The Veteran has current diagnoses of the right knee that include right knee meniscal tear, degenerative arthritis, bursitis, right knee iliotibial band syndrome and right knee chondrosis/chondromalacia (07/08/2021 C&P Exam, pg. 2). As current right knee disabilities have been identified, the Board finds the first element for service connection has been met. The Board must consider whether the Veteran's current right knee disability began during service, manifested to a compensable degree within one year of service, or is at least as likely as not related to an in-service injury, event, or disease. For the reasons set forth below, the Board finds the weight of the evidence is against the Veteran's claim on all theories. A review of the service treatment history reveals a July 2000 complaint of trick or locked knee, and a physician noted that right knee Achilles tendinitis flares up with extreme exercise (7/29/2010 STR Medical, pgs. 122-123). The Veteran complained of swollen stiff or painful joints during his February 2005 post deployment health assessment, but not during his May 2006 post deployment health assessment (7/29/2010 STR Medical, pgs. 110 and 114). The Veteran's 2006 report of medical history does not reflect complaints of knee trouble (7/29/2010 STR Medical, pg. 102), nor was pain noted or other complaint pertaining to his right knee made during his November 2008 periodic health assessment (7/29/2010 STR Medical, pgs. 83-85). Post-service medical treatment records reveal complaints of bilateral knee pain in 2015, with a May 2015 x-ray of the right knee, revealing mild degenerative changes (9/21/2015 CAPRI, pg. 33). An April 2018 x-ray revealed the Veteran's right knee was stable since the previous study (6/13/2018 CAPRI, pg. 13). Records reflect the Veteran was not diagnosed with osteoarthritis of the right knee until 2018 (7/22/2020 C&P Exam, pg. 2), approximately a decade after the end of the Veteran's service that is honorable for VA purposes. The Veteran underwent a July 2020 VA examination for his right knee (7/22/2020 C&P Exam). The examiner opined the Veteran's right knee condition was less likely than not (less than 50 percent probability incurred in or caused by the claimed in-service injury event or illness. The examiner did not address the Veteran's July 2000 complaint of trick or locked knee, or right knee achilles tendinitis flares up with extreme exercise (7/29/2010 STR Medical, pgs. 122-123). The July 2020 examiner relied on a lack of medical records displaying complaints, diagnostic results, or treatment for a right knee condition in formulating his opinion. An additional VA examination was obtained in December 2020. The examiner considered all relevant records, to include the VA e-file pertaining to the Veteran's diagnosed conditions. The examiner addressed the Veteran's in-service knee symptoms, specifically noting the Veteran's July 2000 complaint of trick or locked knee. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran's described in-service activities as a cook and working patrol/guard duty were not so strenuous to have caused extensive damage to his joints. The examiner also opined the Veteran's right knee joint osteoarthritis was less likely than not incurred in or caused by the claimed in service injury. (1/26/2021 C&P Exam). The December 2020 examination did not address secondary service connection or aggravation. Thus, the Veteran was afforded a July 2021 VA examination via telehealth (07/08/2021 C&P Exam). The July 2021 examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner considered the Veteran's service treatment record and contentions. The examiner explained that current medical literature and general medical consensus shows that military service, without any known trauma (i.e. fracture, meniscus tear, gunshot wound, etc.) is not a factor in the development of a knee condition(s) or conditions in other weight-bearing joints of the body. There is no medical evidence that supports the claim that running, jumping, climbing, wearing combat gear and bending while serving in the military increases the risk for developing a condition in the knees, or other weight-bearing joints of the body. The examiner also addressed whether the Veteran's in-service foot x-rays suggests arthritis was present in the Veteran's right knee during service. The examiner provided a negative nexus opinion, explaining that review of the Veteran service treatment record is silent for a diagnosis or complaint for arthritis of the right knee and/or any other knee condition. The Veteran's health record documents an injury to his right knee in June 2019 after falling directly onto it throwing a baseball during a game. The July 2021 examiner reviewed radiographs of the Veteran's left foot from August 2008 that were suggestive for minimal arthritis in the left great toe distal phalanx and posterior calcaneal heel spur. The examiner explained the nature of the Veteran's foot condition. The examiner explained that the condition would account for heel spurs but has no association with osteoarthritis. The examiner concluded the findings do not suggest or support that degenerative changes were manifested to a compensable degree in the Veteran's right knee within one year of separating from the military. The examiner noted the Veteran sought medical attention for his right knee in 2015 and was diagnosed with mild degenerative changes over 4 years after separating from the military, suggesting no nexus to service. The July 2021 examiner also addressed whether the Veteran's right knee disability at least as likely as not proximately due to or the result of plantar fasciitis with pes planus, residuals fracture left foot, or back disabilities. The examiner opined that the condition claimed is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The examiner considered the Veteran's service treatment record and service-connected disabilities, and the contentions that he subsequently developed a right knee disorder. With regard to the foot fracture, plantar fasciitis, lumbosacral strain the examiner explained the nature, causes and impact of the disabilities, concluding that none of the disabilities caused or aggravated the Veteran's right knee. The examiner again noted the medical documentation of an injury to the Veteran's right knee in June 2019 after falling directly onto it throwing a baseball during a game. He was diagnosed with several conditions of his right knee,sustained from the baseball injury. The examiner addressed osteoarthritis, medial and lateral meniscus tear, patellofemoral chondrosis, and iliotibial band syndrome. The nature, symptoms, and causes of these diagnose were explained, suggesting an absence of a relationship to any of the Veteran's service-connected disabilities. The examiner acknowledged that it was once thought that chondromalacia patella was a precursor to patella-femoral osteoarthritis but that has since been refuted. The examiner cited to medical literature, noting that it does not support the development of any of the Veteran's right knee conditions due to bilateral plantar fasciitis, residual fracture left foot, and lumbosacral strain. The examiner concluded, due to the lack of a pathophysiological relationship between bilateral plantar fasciitis, residual fracture left foot, and lumbosacral strain and the development of a right knee condition, it is unlikely that the Veteran's bilateral plantar fasciitis, residual fracture left foot and lumbosacral strain has caused his current knee condition. Additionally, it is less likely than not (less than 50 percent probability) that the Veteran's right knee condition was aggravated beyond its natural progression by his service-connected bilateral plantar fasciitis, residual fracture left foot and lumbosacral strain. In weighing the evidence, the Board notes the negative nexus opinion of the July 2020 examiner had previously been found inadequate due to the absence of sufficient rationale. The December 2020 did not fully address all of the potential avenues to service connection, therefore was not complete. As such, these examinations, while weighing against the Veteran's claim, are of lesser probative value than the July 2021 examination and opinion. The July 2021 VA examination and accompanying negative nexus opinions as to direct, secondary service connection, and aggravation, are adequate and probative. The opinions are based on a well-articulated review of the Veteran's service and medical history. The examiner included a thorough explanation of the nature of the Veteran's conditions. The examiner considered the Veteran's contentions, treatment records, and cited to medical literature in formulating the negative nexus opinion. Finding the examiner provided a well thought out, comprehensive rationale for all opinions provided, the negative nexus opinions by the July 2021 examiner are found to be highly probative, and weigh heavily against the Veteran's claim. The Veteran believes his right knee disability is related to an in-service injury, event, or disease and acknowledges the Veteran is competent to report his memory of onset. Likewise, his wife is competent to testify that her husband has complained of knee pain since she met him in 2010, two years after his active service for compensation purposes (3/06/2020 Correspondence, pg. 7). The record does not suggest either the Veteran or his wife is competent to provide a medical diagnosis, nexus opinion, or determine that the Veteran's symptoms were manifestations of his currently diagnosed right knee osteoarthritis. Such determinations are medically complex, requiring interpretation of diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Accordingly, the lay statements of both the Veteran and his wife are assigned less probative weight than the probative medical evidence of record. In addition to the July 2021 negative nexus opinion, the Board finds the Veteran's reported history of knee pain in service were not consistent. The Veteran told the July 2020 examiner his symptoms began in 2003 and he complained of swollen stiff or painful joints during his February 2005 post deployment health assessment. However, no such complaints were made during his May 2006 post deployment health assessment. The Veteran's 2006 report of medical history and 2008 periodic health do not suggest the Veteran's right knee pain rose to the level to be considered onset of a chronic disability in-service. The Board has also considered the Veteran's assertion during his hearing that medical record notes may have mixed up references to his right and left knees (3/06/2020 Correspondence, pg. 9). The Board's review of the Veteran's records did not suggest administrative errors of the nature contended. The Board finds the medical records consistently reflect the Veteran's left knee disability for which he is service connected, and references the right knee as discussed in this decision. The Board does not find the Veteran's contention to have merit and accepts the medical records as accurate. As detailed above, although he complained of knee issues in 2000, he did not make such complaints in 2005, 2006, 2008, or 2010. The Veteran's more recent assertion of persistent right knee issues is not supported by medical records that were contemporaneous with his service. The record suggests the Veteran's post service complaints of bilateral knee pain began consistently in 2015, with the May 2015 X-ray of the right knee, that revealed mild degenerative changes. Additionally, the Veteran was not diagnosed with osteoarthritis of the right knee until years after the end of the Veteran's service that is honorable for VA purposes. This weighs against a finding that the Veteran's arthritis, a chronic disease, manifested to a compensable degree during the presumptive period. 38 C.F.R. §§ 3.309. The Board concludes that, while the Veteran has currently diagnosed right knee disabilities, the most probative evidence of record weighs against finding that the Veteran's right knee disability began during active service, manifested to a compensable degree within the presumptive period, or is otherwise related to or aggravated by an in-service injury, event, or disease. Accordingly, the Veteran's claim of service connection for a right knee disability is denied. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers 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.