Citation Nr: 21072730 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-16 651 DATE: December 6, 2021 ORDER Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for diabetes mellitus, type II is denied. FINDINGS OF FACT 1. The evidence of record does not show that the left knee disorder was incurred in service or that the left knee manifested to a compensable degree within one year after discharge from service. 2. The evidence of record does not show that the Veteran's diabetes mellitus was incurred in service or manifested to a compensable degree within one year after discharge from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disorder 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. 2. The criteria for entitlement to service connection for diabetes mellitus, type II has 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 FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from October 1952 to June 1954 in the Korean Conflict era. This matter comes before the Board of Veterans' Appeal (Board) from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. In a December 2019 decision, the Board remanded the issue for further development and VA examination. The matter returned to the Board in May 2020 and again in April 2021 and was remanded after the VA examinations were found to be inadequate. The Board is now satisfied that there was substantial compliance with its remand orders and is prepared to adjudicate the issues at hand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Under the relevant laws and regulations, 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. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be presumed for certain chronic diseases, such as arthritis and diabetes mellitus, type II, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§1101, 1112, 1113, 1137; 38 C.F.R. §§3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show 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. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. §3.303(b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. §3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. §3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a left knee disorder Initially, the Board notes that the Veteran's service treatment records (STRs) are unavailable. In response to the VA's request for service records, the National Personnel Records Center (NPRC) deemed the records "fire related," meaning the records were most likely destroyed in a fire that occurred at the NPRC in St. Louis, Missouri, in July 1973, and a search for alternative sources of records was unsuccessful. The Board notes when service records are lost or missing, VA has a heightened duty to assist and notify the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran asserts that his left knee began hurting while crawling on the ground in service. He reported that one day the knee "jumped out of place" and he was subsequently prescribed pain pills but did not receive any other treatment while on active duty. He testified at his October 2019 Board hearing that the knee did not cause him problems while in service, but the issues started shortly after his discharge and he has had left knee pain since that time. He also testified that the knee now swells up and he wears a knee brace but also tries to avoid walking too much. The evidence of record shows that the Veteran receives care at the Oakland VA Clinic. In January 2007 the Veteran was seen at the clinic and was assessed with left knee degenerative joint disease. The Board notes this to be the first time the left knee is mentioned or diagnosed. In April 2008 the Veteran was again seen at the Oakland VA Clinic where he was noted to have chronic knee pain. In July 2014 the Veteran was also seen by a private provider who noted that the Veteran complained of right leg weakness but also had left leg weakness that he attributed to a stroke he suffered in December 2013. In August 2018 the Veteran was again seen at the Oakland VA in which the treatment record reports that the Veteran has unstable joints which include the left knee. In March 2020, the Veteran received a VA examination that noted the Veteran's diagnosis of left knee degenerative joint disease and made a diagnosis of left knee osteoarthritis. The examination noted that the Veteran claims he fell on rocks while in Korea which is what caused the injury to his knee. However, the Board found this examination to be inadequate and remanded the matter for addendum opinions. In June 2021, the Veteran received another VA examination. The examiner noted that the Veteran had bilateral knee joint osteoarthritis that was initially diagnosed in 2007. On the examination, the Veteran reported having functional loss and impairment of the knees with repeated use over time. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In the rationale, the examiner remarked that x-rays performed in January 2007 show degenerative joint disease in both knees with the right knee noted as being worse. The examiner stated that they could find no evidence that the current left knee condition had a nexus from the Veteran's service between 1952 and 1954. The Veteran does satisfy the first Shedden element necessary to establish direct service connection, as he is diagnosed with left knee degenerative joint disease in January 2007 at the Oakland VA. However, the Veteran lacks service treatment records to establish the second element of direct service connection, which requires showing an in-service incurrence of an injury. The Veteran does offer lay statements in the record, stating that he injured his left knee during service from crawling on the ground or from falling on rocks. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Due to the VA's requirement to give due consideration to lay evidence and the fact that the VA owes the Veteran a heightened duty to assist because of his records being lost to the fire, the Board finds that the Veteran's lay statements are competent to establish an in-service injury, and the second Shedden element is therefore satisfied. Regardless of finding that the Veteran satisfies the first two elements of a direct service connection claim, the Board finds the third Shedden element is not satisfied. The preponderance of the evidence of record does not support a finding of a causal relationship between the Veteran's current left knee arthritis and his in-service knee injury. Here, the most probative evidence of record to address the presence of a relationship between the Veteran's service and his current left knee disability is the June 2021 VA examination. The examiner considered the entirety of the record, to include the Veteran's competent statements about an in-service injury, and still concluded that his current left knee arthritis is not related to his time in service, including that in-service injury. There is no medical opinion to the contrary. While arthritis is a condition that may be afforded service connection on a presumption, the Veteran is unable to show that he is due a presumptive service connection either. Here, there is no evidence that the Veteran developed a chronic condition either in service or to a compensable degree within a year after discharge from service. The only evidence is the Veteran's testimony claiming that his knee began to bother him shortly after service. Additionally, treatment records are silent as to a knee disability until January 2007, over 50 years after his separation from active-duty service. Finally, the Veteran is also unable to establish presumptive service connection under the continuity of symptomatology. As noted above, a negative inference may be drawn from a lack of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). No continuity of symptomatology can be established as the Veteran's record is silent as to any left knee condition until 2007. Therefore, due to the evidence set out above, the Board finds a preponderance of the evidence is against the claim, and the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for diabetes mellitus, type II The Board notes again that the Veteran's service treatment records (STRs) are unavailable and that when service records are lost or missing, VA has a heightened duty to notify and assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. In August 1996, the Veteran was seen at the Oakland outpatient clinic (OPC). The Veteran was found to have diabetes mellitus for the past five years, dating back to 1991. In September 1997 the Veteran was again seen at the VA where he was noted to have diabetes mellitus, type II, without complications. The record is silent until the Veteran's diabetes was deemed to be out of control at a March 2007 appointment at the VA Clinic. The Veteran was then seen by a private provider in January 2010. The private provider records state that the clinical indication shows the Veteran suffers from adult-onset diabetes that is "long standing" and "out of control." In July 2014 the Veteran was seen by another private provider for weakness in his right leg and it was noted that he was currently being treated for diabetes as well. The evidence also contains medical treatment records from the Veteran's private cardiologist from March 2013 to May 2015. These records from Dr. A.M. consistently note the Veteran's diagnosis of diabetes mellitus. In December 2017 the Veteran returned to the Oakland VA Clinic where he was noted to be on an oral medication for his diabetes as well as once a day insulin injection. In August 2018 the Veteran was seen for a VA examination. The examiner noted an official diagnosis of diabetes mellitus, type II, dating back to 1989. In October 2019, the Veteran testified before a Veterans Law Judge about his diabetes. The Veteran claimed he was treated for diabetes either in service or within one year of discharge from service, but he claimed it was referred to as something else. Specifically, the Veteran testified that he was simply told that he ate too much sugar. The Veteran initially claimed that he was diagnosed with diabetes in 1961 and then amended his statement later, claiming he was diagnosed with diabetes in 1954 or 1955. In March 2020, the Veteran was afforded another VA examination for his diabetes. The examiner found that the Veteran had an official diagnosis of diabetes mellitus dating back to 1981. In May 2020 the Board remanded the issue, finding that the VA examination was inadequate. Specifically, the Board noted that the examiner made no mention to the Veteran's sworn testimony as to his claimed chronicity of symptoms since service. In June 2021, the Veteran was again afforded a VA examination. The examiner confirmed the diagnosis of diabetes mellitus, type II, stating that the condition was initially diagnosed in 1997 and is treated by one insulin injection per day and an oral diabetic medication. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, illness, or disease. The examiner's rationale noted that the Veteran was born in 1932 and claims he was diagnosed with diabetes when he was 39. However, the examiner noted that the claimant is a poor historian who says he was not even 20 when he separated from the Army. The examiner also notes that a medical report from July 2008 stated that the onset of diabetes mellitus occurred in 1997. The examiner noted there is simply no evidence before this period showing that the Veteran's diabetes mellitus, type II was incurred in or caused by service and there is no evidence showing that the diabetes manifested itself to a compensable degree within one year after discharge. The record clearly shows that the Veteran satisfies the first Shedden element needed for direct service connection. There are copious medical reports from both private providers and VA providers that the Veteran has a current diagnosis of diabetes mellitus, type II. However, there is no evidence to satisfy the second Shedden element needed to establish direct service connection of an in-service incurrence of a disease or injury. The record is silent as to any in-service incurrence of diabetes and the Veteran claims that he was simply told he was "eating too much sugar" after his separation from service. While the Veteran does claim that he was diagnosed with diabetes between 1954 and 1955, the Board does not find this lay statement to hold probative weight. The Veteran's statement is not sufficient because his statements are both vague and inconsistent with other lay statements throughout the record in which the Veteran claims he was diagnosed with diabetes in 1961 or at age 39. Additionally, the Veteran's statement is in direct contradiction with VA medical treatment records that stated his diabetes began in approximately 1991. Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). Furthermore, lay evidence that is submitted in the record must be competent and credible. Competent lay evidence is any evidence not requiring that the proponent have any specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). While the lay statements may be competent to testify to symptoms, the Veteran in this case is not competent to provide an opinion regarding the specific issue of a diagnosis of diabetes mellitus. As a layperson, the Veteran does not have the education, training, and experience to offer a medical diagnosis or an opinion as to a diagnosis of the condition. It is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make a diagnosis of diabetes. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that the Veteran is not competent to make a diagnosis of diabetes mellitus and finds no contemporaneous medical evidence from the period when the Veteran claims his diabetes mellitus first manifested. Therefore, the Board finds that the Veteran does not satisfy the elements needed to receive entitlement under direct service connection. While diabetes is a chronic condition that can be presumptively service connected, the evidence does not show that he had chronic diabetes during service or that it manifested itself to a compensable degree within a year after discharge. Finally, the Veteran also fails to show a continuity of symptomatology as the first medical reports showing the Veteran has diabetes come from 1996, over 40 years after he separated from service. Therefore, due to the evidence set out above, the Board finds a preponderance of the evidence is against the claim, and the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.