Citation Nr: 21069442 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-38 565 DATE: November 18, 2021 ORDER Service connection for a right knee disability, to include as secondary to the service-connected thoracolumbar strain, is denied. FINDING OF FACT The Veteran's right knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, or secondary to the service-connected thoracolumbar strain. CONCLUSION OF LAW The criteria for service connection for a right knee disability, to include as secondary to the service-connected thoracolumbar strain disability, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1990 to August 1994. This matter was most recently remanded by the Board of Veterans' Appeals in May 2021 for further evidentiary development. Service Connection Right Knee Disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of 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 disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for 90 days or more of active service, service incurrence shall be presumed for certain chronic diseases, including arthritis, if the disease manifested to a compensable degree within one year from the date of separation from active service. While the disease does not need to be diagnosed within the presumptive period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established on a secondary basis for a disability proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disability, will be service connected. 38 C.F.R. § 3.310 (b). Thus, service connection is permitted not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation by a service-connected disability. As an initial matter, the Board acknowledges that the Veteran has a current diagnosis of right knee degenerative arthritis. However, she has not asserted that such disability manifested to a compensable degree within one year of her separation from active service. The earliest right knee diagnosis of record resulted from a September 2014 VA Orthopedic Department evaluation which diagnosed degenerative joint disease (DJD). Also, a May 2016 MRI confirmed this diagnosis. In this regard, the Veteran was not diagnosed with a right knee disability until September 2014, twenty years after separation from service. As such, presumptive service connection is not warranted. Therefore, service connection can only be granted for the Veteran's right knee disability on a direct or secondary basis. Indeed, the Veteran's service treatment records (STRs) are silent as to complaints of symptoms related to, or injuries involving, her right knee. Indeed, at her August 1994 separation examination, she marked "don't know" in the trick or locked knee category. The examination indicated normal lower extremities. Post-service, an April 2008 Homeless Program note indicated that the Veteran had past knee issues during her military service. However, she did not endorse having any serious medical problems at that time. An October 2009 medical note indicated that, two weeks prior to the appointment, she fell while running. She was unsure of exactly what happened to her knee when she fell, but she reported that it twisted and that she had a large amount of swelling. She wore a right knee sleeve. In June 2013, the Veteran sought treatment for right knee pain that she reported started two weeks prior, when she twisted her right knee while running for the bus. She reported that the original injury occurred in mid-May 2013 when she woke up with a sharp pain in her knee. Pursuant to the most recent Board remand in May 2021, an addendum opinion was obtained in July 2021 to ascertain the nature and etiology of the Veteran's right knee disability. [The Board acknowledges that the Veteran has undergone earlier VA examinations, at which times the examiners provided medical nexus opinions regarding the Veteran's right knee disability and her active service. However, in prior remands, the Board deemed those opinions to be inadequate. Accordingly, they will not be discussed herein.] The July 2021 VA examiner opined that it was less likely than not that the Veteran's right knee disability incurred in, or was otherwise related to, her active service. The examiner explained that the Veteran's right knee DJD diagnosis is consistent with the natural aging process. Further, the medical records suggested that the onset of DJD occurred in 2009 (as evidenced by the 2009 letter to the Veteran discussing possible sclerosis of the tibial plateau which was later determined to be edema associated with arthritis). The examiner based this opinion on the Veteran's age and the natural pathophysiology of the condition. Specifically, the examiner found that it is more likely that the Veteran's right knee DJD developed in or around 2009 with an acute injury in or around June 2013. There was no evidence of an active condition in service or at separation, as the examining medical officer did not have any clinical findings. The gap from 1994 until at least 2009 is evidence that the Veteran did not have right knee arthritis at separation. Indeed, at the separation examination, she failed to identify any specific right knee problems. Further, the examiner explained that the Veteran's claim of onset of right knee problems in service, along with continuity of such symptoms since then, is not supported by the available medical evidence and the pathophysiology of DJD. The examiner referenced the Veteran's reports of various dates of onset of right knee problems. In this regard, the Board finds that the medical evidence does not support direct service connection for the Veteran's right knee disability. The Board acknowledges that lay persons may be competent to provide opinions on some medical issues (to include incurring injuries and receiving treatment). Kahana v. Shinseki, 24 Vet. App. 428 (2011). See also May 2015 Notice of Disagreement and August 2016 VA Form 9. However, the etiology of knee disabilities is a complex medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has carefully considered the lay contentions of record suggesting that the Veteran's right knee disability is related to her service, but has not uncovered any credible medical evidence which supports such a connection, and the Veteran lacks the medical expertise to determine competently the etiology of this disability. Significantly, the evidence shows that the Veteran made no complaints of knee pain while in service, and for over fifteen years after separation from service. Likewise, the medical records do not show that she reported continuous symptoms of knee pain since separation from service. However, the records show several post-service knee injuries, including a fall in October 2009 and another one in June 2013. Accordingly, the Board finds the July 2021 VA addendum opinion to be probative because it is based on a review of the record, to include the Veteran's lay statements, prior VA examination findings/diagnosis, and a complete and accurate medical history, including STRs and post-service treatment records. Further, the July 2021 VA examiner's opinion provides rationale and an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not submitted competent evidence refuting the July 2021 VA examiner's opinion. Given the above, the Board finds that the Veteran's right knee disability was not shown as chronic in service; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. Thus, direct service connection for a right knee disability is not warranted. The Veteran also asserts that her right knee disability is secondary to her service-connected thoracolumbar strain disability. As indicated, she has a diagnosis of right knee DJD and is service connected for a thoracolumbar strain. As such, the first and second elements required for secondary service connection are met. With respect to the remaining element of a nexus, an August 2016 VA examiner opined that that the Veteran's right knee condition (which includes arthritis and questionable extrusion of the body of the medial meniscus) is less likely as not due to her service. The examiner explained that there is no pathophysiologic connection between a lumbar strain and the development of arthritis of the knee or a meniscus condition. An October 2019 VA examiner opined that the Veteran's right knee disability was neither proximately due to, nor aggravated by, her service-connected back strain as the medical documentation did not show such a connection. The examiner also noted that the Veteran did not have an abnormal gait or radiculopathy to form a connection between her back and right knee disabilities. Likewise, the most recent July 2021 VA examiner found no nexus between the Veteran's right knee and her service-connected back disability. Specifically, the examiner explained that the condition of the spine does not, and would not, cause or aggravate DJD of the knee, as this is established medical knowledge and practice. The Veteran has not provided competent evidence contrary to these VA medical opinions. As such, the Board finds that the medical evidence of record weighs against secondary service connection for the Veteran's right knee disability. As noted above, the Board acknowledges that lay persons may be competent to provide opinions on some medical issues. Kahana, 24 Vet. App. 428. However, the etiology of knee disabilities is a complex medical determination outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d 1372. The Board has carefully considered the Veteran's lay contention that her right knee disability is secondary to her service-connected thoracolumbar strain, but the Veteran lacks the medical expertise to determine competently the etiology of this disability. Given the above, the Veteran's right knee disability has not been shown to be proximately due to, the result of, or aggravated by her service-connected thoracolumbar strain. Accordingly, service connection for a right knee disability, to include as secondary to the service-connected thoracolumbar strain, is not warranted. As the preponderance of the evidence is against the claim on appeal, it must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.