Citation Nr: 21067880
Decision Date: 11/05/21	Archive Date: 11/05/21

DOCKET NO. 17-21 859
DATE: November 5, 2021

ORDER

Service connection for a left knee disability is denied.

FINDING OF FACT

The preponderance of the evidence is against finding that the Veteran's left knee disability began during active service or is otherwise related to an in-service injury or disease.

CONCLUSION OF LAW

The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Marine Corps from September 1959 until his honorable discharge in September 1963. The Veteran died in 2020, and the appellant is the Veteran's surviving spouse who has been properly substituted to pursue this claim for service connection. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a); see January 2021 VA Correspondence.

This case come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 decision by a Regional Office of the United States Department of Veterans Affairs (VA), which denied service connection for a left knee disability, to include partial tear of the medial collateral ligament. The Veteran filed a timely Notice of Disagreement and VA Form 9, Substantive Appeal to the Board. In August 2019, the Veteran testified at Board hearing before the undersigned Veterans Law Judge. Before a decision could be issued, the Veteran died in 2020. In a November 2020 decision, the Board dismissed the Veteran's appeal due to his death as no appellant had been properly substituted at that time to pursue his appeal. Following the Board's decision, the Veteran's surviving spouse properly substituted in the place of the Veteran to pursue the claim for service connection. As such, the appeal has been reactivated at the Board. 

Since transfer of the case to the Board, VA has associated VA medical documents with the Veteran's claims file. Pursuant to 38 C.F.R. § 20.1305(c), "pertinent evidence" associated with claims files by VA "must be referred to the agency of original jurisdiction for review, unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral." Section 20.1305(c) defines "pertinent evidence" as relating to or having a bearing on the appellate issue or issues. The Board has reviewed all newly associated VA medical records within the Veteran's claims file since transfer of the case to the Board and finds that this evidence does not bear on the claim for service connection for a left knee disability. Therefore, the Board may continue to adjudicate the claim as referral to the VA Regional Office is not necessary in this case. 

The Board notes that the appellant's representative submitted an appellate brief in which he addressed two additional claims for service connection, one for a right shoulder disability and another for a right hip injury. The Board finds these claims for service connection were never appealed by the Veteran. Although each claim was addressed by the VA Regional Office in the October 2015 decision and a March 2017 Statement of the Case, the Veteran specifically appealed only the denial of service connection for a left knee disability within his VA Form 9, Substantive Appeal to the Board. As he did not appeal the other claims, they are not properly before the Board. 38 U.S.C. § 7105(d); 38 C.F.R. § 19.22.

Evidentiary Standards

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim.

Service Connection

VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).

Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis.

Analysis

First element: A current disability

In October 2015, the Veteran received a VA examination addressing his left knee condition. The examiner completed a review of his medical history, medical records, in-service treatment records, and conducted a physical evaluation, including taking X-rays of the Veteran's left knee and comparing those X-rays to the ones taken in 2012 and 2010. He diagnosed the Veteran with (1) medial collateral ligament sprain, (2) slight medial compartment osteoarthritis, and (3) Osgood-Schlatter's disease, which is "a painful swelling of the bump on the upper part of the shinbone, just below the knee. This bump is called the anterior tibial tubercle."  Osgood-Schlatter's Disease, MedlinePlus Medical Encyclopedia, U.S. National Library of Medicine, https://medlineplus.gov/ency/article/001258.htm (last visited Oct. 28, 2021). The Board finds this evidence credible and probative. Therefore, the first element is satisfied.

Second element: An in-service event, injury, or illness, or aggravation thereof

In various statements to VA, VA medical professionals, and during his Board hearing, the Veteran asserted that while on active duty he injured his left knee playing football. His in-service treatment records document a left knee injury that occurred in November 1961 due to playing football. The Board finds the Veteran's statements credible and probative as they are supported by his in-service medical records. The Board finds the Veteran suffered an in-service event/injury related to his left knee. Therefore, the second element is satisfied. 

Third element: A causal link

The Board finds the most credible and probative evidence of record addressing the Veteran's left knee disabilities is an opinion from the October 2015 VA examiner.

Medial collateral ligament sprain 

First, the October 2015 examiner opined that the Veteran's medial collateral ligament sprain was not due to his in-service injury, nor did the Veteran have a pre-existing left knee condition that was aggravated in service. The examiner noted that the medical professional who treated the Veteran in November 1961 while in service reported that, following an examination, there was laxity over the medial collateral ligaments "but not a complete disruption." The VA examiner specifically noted that the in-service treating medical professional stated, "I wonder if this isn't an old ligamentous tear as there should be more physical findings with a 2-day old injury" and added "probably old with recent aggravation." The October 2015 VA examiner adequately, and convincingly, explained that the treating medical professional's statements/conclusions should be treated as speculation because there was no indication that the Veteran had been asked about a prior injury. The examiner observed that the Veteran's August 1959 enlistment examination documented no injuries, conditions, or illnesses involving his left knee. In addition, the October 2015 VA examiner documented that the Veteran reported to him that he never experienced any issues with his knees prior to service. 

Next, the examiner addressed how the Veteran's current left knee sprain developed. He cited that the Veteran had been seen recently by a VA orthopedic clinic for his right hip, not his left knee. In August 2015, the Veteran was admitted to an emergency room because his right hip gave way and he fell, which caused hyperextension of his right knee. There was no mention of any left knee injury. During the examiner's physical evaluation, he noted that following the Veteran's November 1961 in-service left knee injury, the Veteran reported being on crutches for six months. The examiner found no evidence that the Veteran received any further treatment for his left knee thereafter or that he experienced any issues with his left knee following the injury. He again noted that the Veteran was only seen in 2015 for issues related to his right hip and right knee, never mentioning any issues with his left knee. The Veteran reported to the examiner that "once in a while when walking and standing [he] will have left knee pain." The examiner found no history of braces, locking, catching, or giving way of the left knee. He opined that the Veteran's standing and walking was limited by his right hip and right knee as of 2015, not his left knee. At the time of the physical examination, there was no documented functional loss due to pain or any limitation in range of motion. In sum, any left knee disability due to his left knee sprain was not caused by his 1961 in-service injury.

The Board finds the examiner's opinion, that the Veteran did not have a pre-existing left knee injury that was aggravated by his active military service, highly credible and probative. He conducted an extensive review of the Veteran's medical history and in-service medical records, and he considered the Veteran's statements in relation to his left knee disability, including any pre-existing injuries and the onset of his disability. His rationale convinces the Board that the in-service treating medical professional's opinion about a pre-existing injury is speculative, and therefore the Board finds it has no probative value. Thus, the Board finds the Veteran was sound on entry into service as there was no documented pre-existing left knee disability. 38 U.S.C. § 1111 ("[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment . . . ."). Based on the examiner's opinion and rationale, the Board finds that the Veteran did not have a pre-existing left knee disability that was aggravated by his November 1961 in-service left knee injury. 

Furthermore, the Board finds the examiner's opinion, that the Veteran's left knee sprain, is not related to his active service highly credible and probative. The Board interprets the VA examiner's opinion to be partially based on a lack of treatment for his left knee since 1961 and a lack of statements from the Veteran that he has experienced chronic left knee issues since service. McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) (Board is capable of interpreting medical opinion evidence) (citing Harvey v. Shulkin, 30 Vet. App. 10, 20 (2018)). On review of the Veteran's medical records, the Board also, independently, finds a lack of treatment for his left knee since service or general assertions of chronic issues associated with his left knee. If the Veteran did experience additional chronic left knee issues following service of such severity that medical treatment was necessary, the Board would expect such treatment to be documented in his medical records, but there is none. Buczynski v. Shinseki, 24 Vet. App. 221, 22627 (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). At the earliest, the Board has found a medical record in 2000 in which the Veteran reported knee pain, but there is no documented or reported functional loss. The Board finds the lack of treatment or assertions of left knee issues between 1961 and 2000 highly significant, and this evidence weighs against finding the Veteran experienced chronic left knee issues following separation from service. Maxson v Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) ("evidence of a prolonged period without medical complaint can be considered along with other factors concerning the veteran's health and medical treatment"). To the extent he asserted chronic left knee issues during the pendency of his claim, the Board finds his statements have no probative value because they are unaccompanied by sufficient description of the severity, frequency, and duration of such issues. Overall, when the absence of medical treatment and credible lay assertions of left knee issues following the Veteran's separation from service are viewed in conjunction with the October 2015 VA examiner's evaluation and opinion, the Board finds the evidence weighs against finding a causal link between the Veteran's left knee sprain and his in-service injury.

Slight medial compartment osteoarthritis

The October 2015 VA examiner opined that the Veteran's left knee osteoarthritis was due to the natural aging process not the Veteran's in-service injury. In support of his conclusion, the examiner relied on the progression of the Veteran's osteoarthritis as documented by X-rays. 

X-rays of the Veteran's left knee taken in April 2010 were interpreted at that time by a VA radiologist who opined that the Veteran had "old avascular necrosis" and "minimal degenerative changes." The October 2015 VA examiner personally reviewed the April 2010 X-rays and disagreed with those findings. Instead, the examiner found that the Veteran had "prominence of the tibial tubercles compatible with Osgood-Schlatter's disease." The standing weightbearing X-rays of both knees showed normal alignment, no hypertrophic osteophytes, and no joint space narrowing. The Board finds the October 2015 VA examiner's interpterion of these X-rays more credible than the April 2010 radiologist's interpretation because the VA examiner was more thorough in his analysis of the X-rays and he had the benefit of comparing those X-rays to those taken later, as will be discussed next.

The VA examiner compared the Veteran's April 2010 X-rays to those taken in February 2012. In 2012, a VA radiologist suggested the Veteran had Osgood-Schlatter's disease as a result of chronic bony prominence of the tibial tubercle. The VA examiner took new X-rays of the Veteran's left knee during the examination. After comparing the new X-rays to the 2012 X-rays, the examiner found no change. He concluded that the left knee had normal medial joint space in 2010, and slight medial joint space narrowing first noted in 2012 and again 2015.  These results indicated that the development of mild medial compartment osteoarthritis more likely than not related to aging rather than a progression of any condition that occurred while in the military.

The Board finds the VA examiner's opinion and rationale highly credible and probative. As previously mentioned, he conducted an extensive review of the Veteran's medical history and in-service medical records, and he considered the Veteran's statements in relation to his left knee disability. His opinion is based on accurate and thorough review and discussion of the Veteran's left knee X-rays from 2010 to 2015, which showed ostearthritis consistent with aging rather than his in-service injury. The Board finds no credible evidence in the record contradicting the examiner's rationale or opinion. Therefore, the Board finds the evidence weighs against finding a causal link between the Veteran's left knee osteoarthritis and his in-service injury. 

The Board recognizes that service connection may be established on a presumptive basis for certain "chronic diseases" that manifest in service or within the presumptive period following separation from service (such that their existence in service is presumed). 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The term "chronic disease" refers to those diseases in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), which includes arthritis. In this case, the Veteran's left knee osteoarthritis, including any associated symptoms of osteoarthritis, was not noted in service or within one year following his separation from service. Therefore, presumptive service connection is not available under 38 C.F.R. § 3.309(a). 

While the Veteran asserted that his left ostearthritis was due to his in-service injury because it is generally understood that an injury like his leads to arthritis, the Board finds he did not have the necessary medical expertise to offer such an opinion in this case. See 38 C.F.R. §§ 3.159(a)(1)(2);  Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis and causal links). He did not properly establish that he could, as a layperson, link his present-day arthritis with an injury that occurred over fifty years ago, especially considering any intervening causes or natural causes. Thus, the Board does not credit his lay assertion as to a causal link. 

Osgood-Schlatter's disease

The October 2015 VA examiner opined that the Veteran's Osgood-Schlatter's with prominence of tibial tubercles was not related to the Veteran's in-service left knee injury. The examiner explained that this disease is a developmental change due to growth abnormalities to the tibial tubercle apophysis, not traumatic injury. The examiner's rationale in support of his conclusion is similar to his rationale addressing the Veteran's other left knee disabilities. The Veteran did not have a pre-existing left knee disease or condition prior to service. Based on comparison of the Veteran's left knee X-rays between 2010 and 2015, there was no evidence that his Osgood-Schlatter's disease was caused by his in-service left knee injury. His medical records are silent for evidence of chronic left knee issues and he did not credibly establish that he experienced chronic left knee issues following service. For reasons already discussed, the Board finds the examiner's opinion highly credible and probative. He relied on accurate facts, a thorough review of the Veteran's medical history and records, and he considered the Veteran's relevant lay statements when forming his opinion. The Board finds no credible evidence in the record contradicting the examiner's rationale or opinion. Therefore, the Board finds the evidence weighs against finding a causal link between the Veteran's Osgood-Schlatter's disease and his in-service injury.

Conclusion

Based on the foregoing analysis, the Board concludes that late-Veteran's left knee disabilities were not caused by his in-service left knee injury. Accordingly, service connection is not warranted. 

 

 

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. F. Sawka, 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.