Citation Nr: 21068205 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-67 642 DATE: November 9, 2021 ORDER Entitlement to service connection for bilateral knee arthritis is denied. FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran's bilateral knee arthritis is related to the Veteran's active service or manifested to a compensable degree within a year of his discharge from such service. CONCLUSION OF LAW The criteria for service connection for bilateral knee arthritis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1960 to March 1962. This matter was previously denied by the Board in February 2006. The Board reopened and remanded this matter in June 2018. The Board remanded this matter in February 2021. The matter was again remanded by the Board in July 2021 to obtain a new VA medical opinion regarding the etiology of the Veteran's bilateral knee arthritis. There has been substantial compliance with the prior remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for bilateral knee arthritis The Veteran contends that his current right knee disability is related to service, to include an accident when he fell off tank ammunition in 1961. Legal Criteria Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In some cases, a grant of service connection is available on a presumptive basis. Service connection may be presumed for certain chronic conditions, such as arthritis, if a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and the condition manifested to a compensable degree within one year of the date of discharge from service. 38 C.F.R. §§ 3.307, 3.309. Analysis Regarding the Veteran's current disability, VA and private treatment records show ongoing treatment for bilateral knee arthritis confirmed by x-ray findings. Therefore, the evidence establishes a current bilateral disability. Regarding the Veteran's in-service injury, the Veteran's service treatment records do not document any knee injury. However, in September 2011, the Veteran's private physician wrote that the Veteran reported an "accident when he felt [sic] backwards from a top of tank bullets while preparing an attack mission." While this letter leaves the details unclear, the Board finds the evidence at least in equipoise that the Veteran had an in-service accident when he fell from either a tank, tank ammunition, or a tank ammunition storage container in 1961. As an in-service fall and a current bilateral knee disability have been established by the evidence, the question for the Board is whether there is causal relationship between the Veteran's present bilateral knee disability and his in-service accident, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's service treatment records are silent for any complaints of or treatment for a knee condition. Both the Veteran's January 1960 entrance examination and February 1962 separation examination made normal findings for the bilateral lower extremities. The Veteran also did not report any bone or joint deformities or "trick" or locked knee on the February 1962 Report of Medical History. In August 2002, a VA examiner indicated that the Veteran's bilateral degenerative joint disease of the knees was a non-service-connected condition. However, the examiner did not provide any rationale to support this conclusion. In September 2011, the Veteran's private physician wrote a letter on the Veteran's behalf. The private physician noted that the Veteran reported experiencing knee arthralgia since an accident in 1961 when he fell from the top of tank bullets while preparing an attack mission. The private physician noted a diagnosis of bilateral osteoarthritis of the knees, as shown by x-ray findings. The Board notes that the private physician reiterated the Veteran's report that he experienced knee arthralgia since the 1961 accident, but did not provide any medical opinion of his own regarding the etiology of the Veteran's bilateral knee condition. The Veteran was provided with a VA examination to determine the nature and etiology of his knee disability in February 2021. The VA examiner reviewed the Veteran's medical history contained in his VA e-folder and conducted an in-person examination of the Veteran. The examiner noted diagnoses of osteoarthritis of the left and right knees. The examiner concluded that the Veteran's knee condition was less likely than not related to service. The examiner noted that the Veteran's STRs are silent for any knee condition. The examiner found no objective medical evidence available that the Veteran complained of or received treatment for any knee condition within a year of separation from service. The examiner noted that the knee condition was diagnosed at least more than 30 years after separation from service. Pursuant to the July 2021 Board remand, a medical opinion was obtained from a VA examiner in August 2021. The VA examiner reviewed the September 2011 letter from the Veteran's private physician. The VA examiner noted that the private physician never provided an explanation or a rationale to suggest why he thought that falling backward from a tank in 1961, and the Veteran's report of knee arthralgia since then, is the cause of the Veteran's current knee arthralgia more than 30 years after the accident. The VA examiner found no evidence that the Veteran sought medical care for his knee condition within at least five years after separation from service. The August 2021 VA examiner noted that there is significant evidence in medical literature that knee osteoarthritis is considered part of the normal aging process in patients older than 40 years old. As directed by the July 2021 Board remand, the VA examiner considered the September 2011 letter describing a fall in service. The examiner concluded that the Veteran's bilateral knee osteoarthritis is less likely than not caused by, or a result from military service or having been developed in service, or within a year after discharge, including the Veteran's September 2011 report to a private physician of falling backward from a tank in service and experiencing knee arthralgia since in September 2011. The examiner noted that the Veteran's separation from service was in March 1962. The examiner found that the bilateral knee condition is not related to military service because it was incurred several years after the last day of active service, and was not diagnosed until at least 30 years after separation from service. The Board finds that the August 2021 VA examiner's opinion is the most probative evidence of record as to the etiology of the Veteran's bilateral knee disability. This opinion was based on a thorough review of the Veteran's medical records, consideration of his lay assertions, and supported by a fully articulated rationale. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board acknowledges the Veteran's current contention that his bilateral knee arthritis is related to service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, as a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and an injury in military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran contends that he experienced knee symptoms continuously since his accident in 1961, these statements are not credible, as they are inconsistent with the medical evidence of record which shows the condition was first diagnosed in 1996, more than 30 years after service. The Board has considered whether a grant of service connection is available on a presumptive basis. Here, the Veteran is competent to report knee pain symptoms since service. However, there is no medical evidence that the Veteran was treated for any knee condition within a year of his discharge from service. As noted by the VA examiner, the Veteran was discharged from active service in 1962, and there is no record of treatment for a knee condition until 1996. The record shows that the Veteran sought treatment for a lumbar spine condition after service. If the Veteran was experiencing knee pain symptoms since service, he would have reported these symptoms to a medical treatment provider along with his lumbar spine condition prior to 1996. In sum, the competent evidence of record weighs against the Veteran's assertion that his bilateral knee arthritis is etiologically related to his active service. Although grateful for the Veteran's honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.