Citation Nr: 21069779 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-51 135 DATE: November 19, 2021 ORDER Entitlement to service connection for a bilateral knee condition is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran's current bilateral knee disability is related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1969 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In November 2019, the Veteran appeared before the undersigned Veterans Law Judge (VLJ) and a transcript of the proceeding has been associated with the record. This case was previously before the Board in January 2020, at which time the Veteran's claim was denied. The Veteran appealed that decision to the United States Court of Appeals for Veteran's claims and the January 2020 Board decision was vacated pursuant to a February 2021 Joint Motion for Remand (JMR). The case was then remanded by the Board to the RO in June 2021 for additional development. That development having been completed; this claim is once again before the Board. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Veteran essentially contends that his current knee pain began in service while stationed in Alaska in 1970 where a sharp piece of metal banged against the front of his knee during a truck ride. See November 2019 Board hearing transcript. The record shows the Veteran has current knee disability diagnoses; arthritis and meniscectomy residuals. It also shows there was a knee area complaint noted in service treatment records, and there are nexus opinions of record. Notably, neither arthritis or meniscectomy residuals were shown in service, or within the first post service year. A letter home from service, recently submitted by the Veteran, reveals that in March of an unstated year, he commented that his knees were in "bad shape," although not so much as to prevent him from participating in league basketball games. (A reference in the letter to seeing a moose suggests the year was 1970, when stationed in Alaska.) The service treatment records show the Veteran was seen in April 1970 for complaints of "slight pain below both patella." It was reported the Veteran complained of a little weakness in climbing steps or stairs, and the sense of the document gives the impression it was thought related in some way to exercise classes the Veteran was taking at the gym or when he struck his knee on a bar on a truck he was riding over rough ground. The report went on that the knees appeared normal, there was full movement, no tenderness, and the Veteran walked without a limp. The impression was possible slight contusion of both patella, and no treatment was given. In July 1970, the Veteran was seen for a right knee sprain occasioned by twisting his knee when removing his boot. Medications were provided. No subsequent knee complaints are recorded, and there were no abnormalities of the lower extremities noted when the Veteran was examined in connection with his service discharge. In the contemporaneous report of Medical History, he denied ever having a "tricked" or locked knee or any other injury apart from those he had already noted. Again, in that report, he made no mention of a knee injury. A 2019 letter from the Veteran's wife recalls that the Veteran complained about his knees after he came home from service, although the precise timing and frequency of the complaints was not made clear. Nevertheless, at his hearing the Veteran indicated that he did not seek any professional medical care for his knees until 2011. Records dated in 2011 and later, show meniscectomy surgery was performed and diagnoses of arthritis were made. The onset of the complaints reflected in these records show them to be proximate to the medical care being provided. Medical opinions have been obtained addressing whether the Veteran's knee disabilities medically shown more than 40 years after service discharge have a nexus with service. In July 2017, the Veteran was examined for VA purposes. Following review of the claims file, and an interview and physical evaluation of the Veteran, the examiner opined that the bilateral knee disabilities were less likely than not incurred in or caused by service. For the rationale, the examiner explained that the Veteran's current symptoms were a function of the 2011 and 2015 surgeries stemming from meniscal tears, and that it would be "highly unusual" that meniscal tears were asymptomatic for the 40 years since the Veteran's in-service knee treatment. It was related that the condition the Veteran currently suffers from normally requires continuous care which is not evidenced by the documentation associated with the record. An additional addendum opinion to the 2017 VA examination was obtained in September 2021. In this opinion, the examiner reiterated that the condition was less likely than not caused by or incurred in military service, to include the notations of in-service treatment. In this regard, the examiner found that, because the Veteran had indicated on his exit examination that he had no knee complaints, this served to show that any treated knee condition in service had fully resolved by the time of service exit, otherwise the Veteran would have complained of such at that time. Additionally, the examiner addressed the Veteran's lay testimony regarding complaints of pain and popping in the knees since leaving service until he was first treated and diagnosed in 2011. However, the examiner found that these retrospective lay complaints were contradicted by the Veteran's exit physical examination statements as well as the absence of any documented treatment until many years later in 2011. In October 2016, a private physician offered a single sentence on the question of a nexus. He wrote: [The Veteran's] absence of the lateral meniscus and accelerated degenerative changes in his right knee were just as likely as not to have been caused by his service connected exposure including riding and getting in and out of the crew bus during his military service. Notably, this sentence does not address the left knee. With respect to the right knee, the exposure to which this physician refers is obscure, and this lack of intelligible specificity reduces the probative value of the opinion significantly. More importantly, however, the opinion does not even address the fact that the Veteran himself indicated that he did not have any knee complaints at service exit and did not present himself for medical treatment for current knee complaints until more than 40 years later post-discharge in 2011, despite other evidence in the medical record showing that any time he sustained actual symptoms, he sought treatment, both during service and beginning in 2011. As such, it appears that the 2016 opinion is assuming facts that are simply not supported by the record. While the VA examiner's opinion is not lengthy, it acknowledged the Veteran's in-service history, but explains that from a medical perspective, any link with service would be more likely the case if it had been more symptomatic prior to the Veteran's 2011 presentation for care. Additionally, it was found that it was reasonable to presume that, had the Veteran actually been experiencing the knee complaints he claimed existed from service exit to 2011, he would have complained of such as he had done with his acute complaints in service and his current complaints beginning in 2011. Given the expertise of the opinion provider, the Board considers this to be very probative evidence. Overall, then, the Board finds the greater weight of the evidence is against the claim. While the Veteran experienced knee complaints during service, they were few, and imposed no apparent limitations. (Continued on the next page) Additionally, while there is some evidence from the Veteran and his wife that he experienced some knee discomfort over the years since service, they are not shown to possess the expertise to link these complaints either to service, or to what was eventually diagnosed in 2011 and later. Rather, these complaints merely show the presence of unattributable symptoms that have not been formally diagnosed. Although the Veteran is competent to provide his subjective experience of these symptoms, there is nothing in the record that indicates that he is competent to relate these symptoms to a specific diagnosis. Furthermore, as indicated by the 2021 VA examiner's addendum opinion, it appears likely that the Veteran may have not even experienced the symptoms as he recalled, due to the lack of seeking treatment as he had done both before and after that time period when he was documented with experiencing knee complaints. Therefore, it is not established that there was a continuity of symptoms from military service to present. Last, the VA examiner did not link the Veteran's current disability with service, the private opinion failed to address the left knee, and his opinion with respect to the right knee is of little probative value. Accordingly, service connection for bilateral knee disability is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.