Citation Nr: 21071547 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-18 104 DATE: November 30, 2021 ORDER Entitlement to service connection for a right knee disability is denied. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. FINDING OF FACT The Veteran's current right knee disability did not have its onset in service, was not diagnosed within one year of separation, nor is it shown to otherwise be related to his active duty military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from May 1979 to March 1983. In May 2021, the Board of Veterans' Appeals (Board) remanded the matters on appeal for additional evidentiary development. 1. Entitlement to service connection for a right knee disability is denied. The Veteran maintains entitlement to service connection for a right knee disability. He avers that he developed this disability began during his active duty military service while playing football and following a fall into a foxhole. Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Alternatively, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303 (b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the evidence of record, the Veteran's March 1979 enlistment examination report reflects normal lower extremities. His service treatment records document a right knee lateral ligament strain and a mild right knee strain in August 1981. No additional complaint, treatment, or diagnosis of a knee disability is listed in the Veteran's service treatment records and he completed an additional two years of active duty service. Post-service, the Veteran sought private treatment in December 1993 for right knee pain. At that time, he reported that a basketball accident regarding his knee one year prior. X-ray performed at that time showing no soft tissue or skeletal abnormality. Joint spacing was well maintained. June 1994 radiograms showed blunting of the inner aspect of the medial meniscus, just posterior to the mid zone of the medial meniscus. This was consistent with a vertical tear with displacement of the torn fragment of the meniscus. There was no evidence of a tear at the lateral meniscus. The lateral view revealed contrast material filling a Baker's cyst which measured approximately 3cm in diameter. There were no other findings. In September 1994, the Veteran complained of clicking, crunching, and frequent locking of the right knee which he attributed to a twisting injury while playing football three years prior. He was diagnosed with a medial meniscus tear of the right knee with mild medial compartment degenerative joint disease. He underwent a partial medial meniscectomy. The Veteran next complained of right knee swelling in June 1996. In January 2002, the Veteran attended a physical therapy consult where he complained of knee pain following strenuous activities such as basketball, running, or fast walking for exercise, and resultant stiffness the day after. On examination, his standing, sitting, and rising from a chair were within normal limits, but his walking, swatting, running, and jumping were impaired. He performed some exercises with the physical therapist. The physical therapist noted possible arthritic changes and bursitis that were aggravated by strenuous activity and found that the Veteran had good rehab potential. In April 2002, the Veteran went to the emergency room with complaints of right knee pain since the previous Thursday. He indicated that he had been running and felt something pull from behind the right knee. He applied ice for several days with no relief. In May 2013, the Veteran complained that his right knee had been hurting for three weeks after he slipped in the rain on his back porch. He had used ice and ibuprofen to treat it. X-rays showed no fracture but moderately severe arthritis. The following month the Veteran was fitted with a right medium hinged knee brace, and he began leg physical therapy classes again in September 2013 through December 2013. The Veteran underwent a VA examination in July 2014. Following a review of the claims file and a clinical evaluation of the Veteran, the VA examiner diagnosed him with osteoarthritis of the right knee. The examiner concluded that the Veteran's claimed disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He observed that the Veteran was treated for mild right knee sprain during service. However, he indicated that such injuries would be expected to heal without long term sequalae and that there were no records in the Veteran's service treatment records indicating otherwise. In an August 2014 statement, the Veteran noted that he fell into a pothole and twisted his knee during an in-service competition. He averred that he sprained his knees numerous times while playing military team sports. VA treatment records from December 2014 through September 2017 reflect his continued complaints of right knee pain. In September 2017, the Veteran submitted a statement from his wife whom he met during his active duty service in 1982. She noted that the Veteran often complained of pain in his knees as a result of his time playing football for the Air Force and that his condition had progressively worsened. An October 2017 MRI of the right knee showed severe degenerative joint disease at the patellofemoral and at the femorotibial joint compartments and a displaced tear or a prior meniscectomy involving the medial meniscus. Steroid injections for pain were re-started. In March 2019, the Veteran again sought private treatment for his right knee pain, and in May 2019 he underwent a total right knee arthroplasty. At an August 2019 follow-up appointment, he reported that he was doing well post-surgery. There, he inquired about the etiology of his arthritis. He described an incident from the 1970s when he was playing football and was hit on the anterior aspect of his right knee. He stated that his knee had been problematic since that time. The Veteran and his wife testified before the undersigned Veterans Law Judge in a videoconference hearing held in March 2020. There, the Veteran reported his belief that his right knee disability began during service while playing football overseas. He described a play in which the top of another soldier's helmet banged his knee. He was then assisted off the field and medics treated him with ice. The Veteran indicated that he continued to experience issues with his knee after service but was told that it would get better. His belief that it would heal kept him from seeking immediate treatment upon returning home. The Veteran's wife testified that she would often rub his knee with ointment once he returned home to help him push through the pain. In June 2020, the Veteran submitted a positive nexus opinion from his private treating physician. The physician indicated that the Veteran's current right knee disability is secondary to his history of ligamentous knee injury. He based this opinion on the fact that the Veteran had a total right knee arthroplasty in May 2019. Following a review of the claims file and the provision of a clinical evaluation, another VA examiner proffered an opinion in July 2021. The VA examiner determined that the Veteran's claimed right knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She observed that the Veteran's documented, 1981 in-service mild knee sprain was acute. She noted that that Veteran also reported a 1982 fall into a foxhole. The VA examiner observed that the Veteran was discharged in 1983. In December 1993, a right knee X-ray was negative. In 1994, eleven years after separation, the Veteran had surgical repair on his right knee. At that time, he indicated that the symptoms had begun three years earlier (1991) from a football injury. In 2002, the Veteran reported right knee pain while running. Later, in 2013 the Veteran attended physical therapy and osteoarthritis of the knee was diagnosed. He underwent a right knee total arthroscopy in 2019. The VA examiner concluded that the Veteran's current diagnoses were unrelated to service as his in-service injuries were mild and there was an appreciable gap in care from active service until the post-service football injuries. Thus, a nexus was not established. Based on a careful review of all the subjective and clinical evidence of record, the Board finds that the preponderance of the evidence weighs against a finding that service connection for a right knee disability is warranted. As an initial matter, the Veteran has a current right knee disability. He has been diagnosed with osteoarthritis of the right knee status-post right knee total arthroscopy and right knee ACL and meniscus tears. August 1981 service treatment records document a mild right knee sprain corroborating the presence of an in-service right knee injury. Further, the Veteran has provided photographic and news article evidence confirming that he played football during his active duty military service, the in-service event which he believes has led to the development of his current right knee disability. Thus, the second element for service connection has been met. Regarding whether the Veteran's right knee disability is related to the documented in-service knee injury, to the Veteran playing football, or to his reported fall in a foxhole, several medical opinions have been provided. The Board finds that the July 2014 negative opinion is of low probative value as it is predicated entirely on the lack of service treatment records documenting sequelae from the right knee sprain. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner relied on lack of evidence in service treatment records to provide negative opinion). The June 2020 private physician's opinion is also of low probative value as he did not provide an adequate rationale for his opinion; he merely relied on the fact that the Veteran had a total knee arthoplasty in 2019. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). The Board finds that the July 2021 opinion is of the greatest probative value concerning the etiology of the Veteran's right knee disability. The examiner reviewed the entire claims file prior to determining that the Veteran's current right knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board finds that this medical opinion is adequate and is highly probative on the question of etiology, as it was provided by a medical professional whose thorough review of the Veteran's medical history and treatment records is evidenced by copious references to it, and her conclusions are supported with a detailed rationale. The Board notes that certain chronic diseases, such as arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. However, in this case there is no competent, credible medical evidence detailing the diagnosis of a right knee disability, to include arthritis, within one year of the Veteran's discharge from service to warrant a grant of service connection on a presumptive basis. In fact, an X-ray provided to the Veteran in 1993, ten years post-separation was negative. The Board has also considered the applicability of continuity of symptomatology. Service connection may be established by showing continuity of symptoms since service. 38 C.F.R. § 3.303 (a). Continuity of symptomatology is established if a claimant demonstrates: (1) a condition noted during service; (2) evidence of post-service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptoms. The Board observes that a mild right knee sprain was noted in the Veteran's service treatment records. However, it finds that the competent, credible evidence of record weighs against a finding of post-service continuity of such symptoms. The record reflects that the Veteran's first post-service complaints of right knee pain occurred in 1993, ten years after separation, and were attributed to a basketball injury from one year prior (1992). The Board also notes that medical treatment records from 1994 attribute his pain to a football injury three years prior (1991). The Board finds that these documented, intercurrent injuries which the Veteran himself related to his knee pain are evidence weighing against the claim. Additionally, the record does not document complaints of right knee pain related to service until the Veteran sought service connection in 2000, 17 years post-separation. The Board acknowledges the Veteran's statements that he continued to experience knee pain since separation, which he has made in conjunction with his compensation claim, but attaches greater probative value to the statements (or lack thereof) made to providers when seeking treatment for his knee disability, specifically those made closer in time to separation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). As such, the current contentions made in the pursuit of benefits are not persuasive. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). Consideration has been given to the Veteran's contentions that his current right knee disability is related to his service. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses and causation findings based on medical knowledge of the musculoskeletal system. See Jandreau v. Nicholson, 492 F.3 s 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is certainly competent to report the activities that he engaged in during service and pain he experienced during that time, he is not competent to link that to a diagnosis or etiology. His assertions are therefore not competent evidence of a medical nexus. In sum, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right ankle disability is remanded. 2. Entitlement to service connection for a left ankle disability is remanded. The Veteran maintains entitlement to service connection for right and left ankle disabilities, diagnosed as bilateral ankle strain. In July 2021, a VA examiner reviewed the claims file and provided a clinical evaluation before determining that the Veteran's claimed right and left ankle disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In rendering these opinions, the VA examiner relied on an inaccurate factual premise, indicating that there was no documentation of in-service ankle disabilities, despite documented instances of in-service left and right ankle sprains. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value.). Further, the VA examiner failed to fully consider the Veteran's lay statements as to the incurrence of the claimed injuries. Miller v. Wilkie, 32 Vet. App. at 260 (stating that a VA medical opinion lacks probative value when the examiner fails to address a veteran's lay reports of his medical history and symptoms). The Board finds that addendum opinions are necessary to address these deficiencies. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right ankle disability had onset in, or is otherwise related to, the Veteran's active service? In answering this question, the examiner should discuss the Veteran's numerous reports of injuries incurred while playing sports during active service, as well as the Veteran's in-service documented right ankle sprain. 2. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left ankle disability had onset in, or is otherwise related to, the Veteran's active service? In answering this question, the examiner should discuss the Veteran's numerous reports of injuries incurred while playing sports during active service, as well as the Veteran's in-service documented left ankle sprain. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions is requested, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.