Citation Nr: 21070915 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-45 084 DATE: November 26, 2021 ORDER Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of a right knee disorder, but such disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service. 2. The Veteran has a current diagnosis of a left knee disorder, but such disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 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 March 1981 to August 1981 and again from January 2003 to January 2004. He also had over 22 years of inactive service with the National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia which, in part, denied service connection for bilateral knee disorders. This case was previously before the Board in December 2018 and May 2021 at which times the above issues were remanded for additional development. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury, event, or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24). Thus, the duty status during National Guard or Reserve service controls whether and how service connection may be established. Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing service connection for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). This, as with other service connection presumptions, is not available for claims based on periods of ACDUTRA or INACDUTRA, unless those periods are for 90 continuous days. 38 C.F.R. § 3.307(a)(1). Analysis The Veteran seeks service connection for bilateral knee disorders. Specifically, he contends that he began experiencing bilateral knee pain during high impact training over his 23 years of military service, both active and inactive. Significantly, the Veteran's service treatment records are negative for any complaints regarding the knees. Specifically, examination reports dated in August 1980, July 1981, August 1986, May 1990, November 1993, December 1998, May 2000, February 2003, and January 2004 show normal lower extremities. Also, in reports of medical history dated in August 1980, July 1981, May 1990, November 1993, December 1998, and May 2000, the Veteran specifically denied "'trick' or locked knee." Similarly, a post-service VA general examination is negative for complaints regarding the knees and is negative for varus/valgus deformity of the knees with negative Lachman's, drawers, and McMurray's and also no tenderness to patellar. There are no line-of-duty determinations of record. Post-service treatment records are negative for complaints regarding the left knee until September 2012 and are negative for complaints regarding the right knee until May 2013. Specifically, September 2012 private and VA treatment records show that the Veteran injured his left knee at work while twisting/bending down. X-ray examination of the knee at that time showed mild degenerative arthritis affecting the medial compartment of the left knee joint and he was diagnosed with ligamentous sprain of the right knee. Also, a May 2013 VA treatment record shows complaints of bilateral knee pain and a May 2014 VA treatment record shows an impression of arthritis of the knees, mild tri-compartmental degenerative changes of the knees, bilaterally. A September 2016 private treatment record shows degenerative changes in the right knee, superior patellar enthesopathy and it was noted that these findings may reflect prior Osgood Schlatter's disease. The Veteran submitted an initial claim for service connection for a bilateral knee disorder in August 2013. In connection with this claim, he submitted several statements relating his bilateral knee disorders to his military service. First, in August and October 2014 statements, Dr. J.D.M. wrote that the Veteran's severe degenerative joint disease of the knees was a consequence of his 22 years of military service. Next, in a November 2014 statement, Dr. H.S. (a VA physician) opined that it was reasonable to conclude that the Veteran's degenerative changes of the knees originated well before his retirement from the military in 2004, and that "repelling from helicopters and frequent jumps from a 'duce and a half' truck in full gear are likely to have contributed to his current knee degenerative changes." Later, in a November 2016 statement Dr. H.S. opined that it was highly likely that the Veteran's knee problems originated in or were made worse by his activities while on active duty. Also, in October 2016, Dr. D.S.R. opined that the Veteran's bilateral knee pain was the result of "strenuous activities in the military" and that the Veteran's bilateral knee problems was directly the result of his military service. More recently, in November 2016 Dr. J.A.S., an orthopedic surgeon, noted that X-rays taken in October 2016 showed bilateral mild tricompartmental osteoarthritis as well as quad tendon entgesiophytes and opined that the Veteran's "degenerative joint disease likely contributed as a result from high impact activity performed while on active duty." The Veteran has also submitted statements from his wife and a fellow service member noting bilateral knee problems since service as well as medical treatise evidence showing an association between service members and the development of arthritis. Pursuant to the December 2018 Board remand, the Veteran was afforded a VA knee examination in November 2019. Significantly, the examiner diagnosed both degenerative arthritis of the bilateral knees as well as bilateral patellar enthesopathy. With regard to the diagnosed arthritis, the November 2019 VA knee examiner opined that such disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Significantly, the examiner noted the Veteran's contention that his knee disabilities stem from training, work, and physical activities while on active duty, repelling from helicopters, and from frequent jumps. However, the examiner also noted that the earliest knee complaints began in 2012 after a fall at work with left knee X-ray demonstrating minimal tricompartmental degenerative change and significant enthosopathic change. The examiner noted that osteoarthritis (OA) is associated as a disease of aging with the strongest risk factors of (OA) being aging and obesity https://online.epocrates.com/diseases/19232/Osteoarthritis/Risk-Factors. Aging is considered to not be a factor in OA development if the presence of joint trauma has occurred https://online.epocrates.com/diseases/19232/Osteoarthritis/Risk-Factors. The November 2019 VA examiner also noted that the records do not show a previous traumatic event while in service or immediately after service. While the Veteran reported that his knee pain began in 2004, there is no annotation of knee pain complaints on general examination in February 2004 and the examination is negative for significant deficits to document for musculoskeletal findings. Also, VA treatment records dated in 2010 are negative for decreased ROM (range of motion), arthralgia, and/or myalgia and the lower extremity examinations were normal as to inspection with no edema, calf tenderness, or popliteal fossa normal. In addition, there were no other previously noted knee complaints. OA is common in manual workers however there is only proven association between knee OA in miners and not due to the veteran's previous military service https://online.epocrates.com/diseases/19232/Osteoarthritis/Risk-Factors. In addition, during the Veteran's service time, he was excluded from physical activity due to his asthma. Obesity has a strong association with knee DJD (degenerative joint disease) due to the increase loading on the joint and research demonstrates in obese men the risk of developing OA increases by at least 50 percent due to obesity https://online.epocrates.com/diseases/19232/Osteoarthritis/Risk-Factors. The Veteran has documented morbidly obesity with BMI (body mass index) of 42 noted as far back as 2010. With regard to the diagnosed enthesopathy, the November 2019 VA knee examiner opined that such disability was less likely than not incurred in or caused by the claimed in service, injury, event, training, work, and physical activities while on active duty, repelling from helicopters and from frequent jumps. As rationale for this opinion, the examiner noted that the Veteran has many other contributing factors that are least as likely as not to have contributed to his bilateral knee enthesopathy. These factors include increasing age, self-report from Veteran of excess iron, lipid storage disease, diabetes, and gout. In addition, he was excused from physical activity due to his asthma for a portion of his service time. Reference: https://academic.oup.com/rheumatology/article/43/2/131/1788308#88226948. Initially, the Board notes that arthritis of the knees is included as a chronic condition under 38 C.F.R. § 3.309(a). However, the evidence does not demonstrate arthritis during the Veteran's active military service or within one year of his discharge from active service. Furthermore, while the Veteran contends that he has experienced chronic bilateral knee pain since his discharge from service, such allegations are contradicted by the record given the normal findings pertaining to the knees in the February 2004 VA general examination. As such, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The claim is also denied on a direct basis. First, there is no evidence of a chronic knee disorder in active service. Significantly, service treatment records are negative for complaints regarding the knees and the earliest complaints regarding the knees are dated in 2012/2013, approximately 8 to 9 years after the Veteran's discharge from active service and following a September 2012 injury to the left knee. Following his discharge from active military service, the Veteran did not actually complain of left knee pain until September 2012 and did not complain of right knee pain until May 2013. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Moreover, while the Veteran has submitted several medical opinions relating his bilateral knee disorder to high impact training over his "23 years of military service," the Board notes that such opinions are based on the totality of the Veteran's 23 years of service, primarily periods of INACDUTA. As above, service connection is permissible for disability resulting from disease or injury incurred in or aggravated by ACDUTRA or for disability resulting from injury - but not disease - incurred or aggravated during INACDUTRA. In this case, the Veteran does not contend and the record does not show an actual injury to the knees during the Veteran's active military service. Instead, the Veteran contends and the private medical opinions suggest that the Veteran's arthritis of the knees may be due to general wear and tear of the knees over the course of his 23 years of service. However, the bulk of the Veteran's military service (periods of INACDUTRA) is not relevant to this theory of service connection because the Veteran's currently diagnosed degenerative arthritis of the bilateral knees is a disease, not an injury, and thus service connection may not be granted for general wear and tear during his periods of INACDUTRA. See 38 C.F.R. § 3.309 (a). Conversely, the November 2019 VA examiner opined that the Veteran's bilateral knee disorders are not related to his military service, but instead due to aging and obesity. This opinion is supported by a convincing rationale and considers all of the pertinent evidence in the claims file, to include the Veteran's allegations of in-service wear and tear to the knees as well as continuity of knee symptoms since his discharge from military service. While the Veteran has alleged that a bilateral knee disorder is related to his military service, the Board finds that the question regarding the potential relationship between the Veteran's bilateral knee disorders and any instance of his military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In this regard, the question of causation of the bilateral knee disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. While the Board respects the Veteran's long service in the Army National Guard, the laws applicable to VA compensation benefits treat that service differently from active service. Service connection may be granted for disability resulting from injury incurred in or aggravated while performing active duty for training (ADT) or inactive duty for training (IADT) or a disease incurred or aggravated while performing ADT. 38 U.S.C. §§ 101(24), 106. The evidence does not establish this. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a bilateral knee disorder. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.