Citation Nr: 21068237 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-29 247 DATE: November 9, 2021 ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's right knee condition began during active service or is otherwise related to an in-service injury or disease, to including landing on his knees after sliding 20 feet down a pole. 2. The preponderance of the evidence is against finding that the Veteran's left knee condition began during active service or is otherwise related to an in-service injury or disease, to including landing on his knees after sliding 20 feet down a pole. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to April 1970. In a December 2019 decision, the Board declined to grant entitlement to service connection for right and left knee disorders. A March 2021 Court of Appeals for Veterans Claims (CAVC) order vacated the Board's decision and adopted a Joint Motion for Remand (JMR) for reconsideration of the Veteran's claim. In July 2021, the Board remanded these issues for further development. These issues are once again before the Board for further adjudication. Service Connection 1. Entitlement to service connection for a right knee disorder 2. Entitlement to service connection for a left knee disorder Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, the evidence must show competent evidence of (1) a present disability, (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process or relatively close thereto can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Whenever 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 veteran. 38 U.S.C. § 5107(b). The Veteran filed his claim for service connection for a bilateral knee condition in July 2014. He claims that during his training at Fort Ord, he was required to climb telephone poles as part of his military occupational specialty (MOS). He had to do this with "leg gaffs" strapped to both legs that penetrated the poles; he claimed that on several occasions, he missed penetrating the pole and slid all the way down from 20 feet in the air, landing on his knees. The Veteran indicated that he felt pain in his knees at this time, but did not report it because he was afraid that he would be sent home and he wanted to serve. See June 2017 Hearing Testimony. Service treatment records do not reflect any treatment for right or left knee issues, including the April 1970 separation examination. Further, the Veteran did not record any problems with his knees on his April 1970 report of medical history. In that report, the Veteran denied a history of trick or locked knee and arthritis or rheumatism. Medical records submitted by the Veteran reflect that he has joint pain in his knees. Private treatment records from Corpus Christi show the same; Dr. F.L. noted, however, that there was "absolutely no trauma" and that the left knee is not remarkable. Upon examination, Dr. F.L. indicated there was originally slight subpatellar crepitation of the right knee, but this resolved itself after more motion. He noted there appeared to be symptoms of mild arthritis of the right knee and recorded that his x-rays show an "apparent loose body on the Merchant's view of the left knee." See June 2014 Private Medical Records. During a June 2019 VA examination, the examiner diagnosed the Veteran with left knee strain and right knee degenerative arthritis. The examiner opined it is less likely than not that the Veteran's left and right knee conditions were incurred in or caused by his active duty service, stating: [The Veteran's file was] silent for any diagnosis or treatment for any knee condition while in service. After service record[s] show Veteran complained of bilateral knee pain from 2014 to present. X-ray in 2014 documents loose body in left knee and mild arthritis of the right knee; x-ray 2016 documents right knee osteoarthritis. Veteran reports sliding 20 feet from a pole and landing on his knees on several occasions on day of exam. [Service treatment records] shows no knee problems on separation exam in 1970. January 13, 2015 statement by the Veteran and hearing transcript dated June 13, 2017 was reviewed and considered and has been included in the examination and medical opinion. Therefore, the Veteran's knee condition is less likely than not caused by fall while in service. A nexus has not been established. The examiner analyzed the Veteran and his bilateral knee condition, and after a thorough review of the record, citing to the absence of complaints until 2014, opined these conditions were not caused by his active duty service. Additionally, the examiner considered the Veteran's account of falling on his knees during service and accepted it as factual, but still concluded that this event was less likely than not the cause of his present right and left knee conditions. The AOJ obtained an additional August 2021 VA medical opinion. This examiner also concluded that the Veteran's right and left knee disorders are less likely than not related to service. The examiner offered the following rationale: There is no evidence of an acute or chronic right or left knee injury while in service. The separation exam is negative for knee conditions. These exams are notably thorough and include a history, physical and veteran-answered RMH, which was specifically negative for trick knee. It is highly unlikely that a significant knee condition would have gone unnoted or unreported. There is no evidence of a right knee condition until 8/23/16, at which time right osteoarthritis was diagnosed, citing a two-year history of knee pain. The condition was age-appropriate at the time of diagnosis and was likely due to a lifetime of normal wear and tear. The veteran was diagnosed with left strain on the 2019 DBQ and there was no left knee complaint in 2016. It is almost certain the veteran's knee conditions arose after service and are unrelated to service. The veteran claims falls from poles of 20 feet onto his knees. Despite such trauma, there is no evidence of care for knee conditions in service and it is highly unlikely an individual could sustain a significant injury in such a manner and continue through service and it not be recognized at separation. A certain number of hard dismounts from climbing poles would be conceded but there is no evidence of an acute injury in service. Without such, there would be no impact anticipated 40 years later. Neither the left knee strain diagnosed in 2019 or the right DJD diagnosed in 2016 is likely due to or incurred in events in service, including the falls described by the veteran. Strain implies an overuse or an acute injury and DJD develops naturally over a lifetime of normal wear and tear. The falls in service are unlikely to have caused the veteran's conditions. It is less likely than not that the veteran bilateral knee conditions are due to or incurred in service, including the falls from poles. During his June 2017 hearing testimony, the Veteran testified that his knee pain began in service after training on climbing and falling off 20-foot poles. The Veteran is competent to report experiencing and observing symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The testimony is not consistent with both the April 1970 Veteran's report of medical history at separation, in which he specifically denied swollen or painful joints, leg pain, tricked or locked knee, neuritis, and arthritis or rheumatism; and the normal clinical evaluation at service separation. The Veteran has explained that he did not report knee pain during service because of fear of being sent home, but this reason for non-reporting was not present at separation. Additionally, the current testimony is not consistent with an August 2016 evaluation wherein the Veteran described to his treating physician a history of right knee pain "for two years or so." The Board finds that the Veteran's statements at discharge are the most credible version regarding the onset of symptoms as he made the statements contemporaneous in time to the events in question in the context of reporting relevant symptomatology to a physician in order to receive a proper diagnosis. See 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 rational 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). While the Veteran is competent to recall observable symptomatology, his recollection many decades after service are not consistent with the Veteran's own statement upon separation or with the examination by a competent medical professional at separation, or his statement to his treating physician in 2016. The Board places greater probative weight to the lay and medical evidence at the time of separation. Additionally, as discussed above, the August 2021 VA examiner noted the lay statements and testimony and determined that the degenerative arthritis of the right knee and left knee strain and are less likely than not related to service in this particular case. The examiner explained that it was highly unlikely that a significant enough injury to result in the current left and right knee conditions would not have been recognized at separation. The Board finds that the examiner offered a well-reasoned opinion based upon an accurate factual basis as determined by the Board. Otherwise, the Veteran is not shown to possess the requisite training and expertise to diagnose the onset of degenerative arthritis of the right knee and left knee strain, or speak to the causes of such disease process. Furthermore, to the extent that degenerative arthritis of the right knee may fall under the definition of a chronic disease under 38 C.F.R. § 3.309(a), the Board finds that the August 2021 VA examiner establishes that the allegation of arthritis symptoms since service is not consistent with the medical record in this particular case. As such, the Board finds that service connection for degenerative arthritis of the right knee, which first manifested many years after service according to the VA examiner's opinion, has not been chronic since service and did not manifest to a compensable degree within one year from service discharge. Thus, service connection under 38 C.F.R. § 3.303(b) and/or 38 C.F.R. § 3.309(a) is not warranted. (continued on the next page) In addition, the Board finds that service connection on the basis of continuity of symptomatology alone for is not warranted under 38 C.F.R. § 3.303(b) as the most credible lay and medical evidence establishes that chronicity first began many years after service. Similarly, there is also no credible lay or medical evidence establishing the onset of arthritis within one year of service discharge of either period of service. Entitlement to service connection for right and/or left knee disorders is not warranted. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Howell, 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.