Citation Nr: 21073518 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 15-15 259 DATE: December 8, 2021 ORDER Service connection for a right knee disability is denied. A temporary total evaluation for July 2011 surgical treatment of a right knee disability necessitating convalescence is denied. FINDINGS OF FACTS 1. The Veteran's right knee disability is not attributable to his active military service, has not been caused or aggravated by his service-connected left knee disability, and arthritis of the right knee did not manifest within one year of separation from service. 2. The Veteran's July 2011 surgery and subsequent convalescence was unrelated to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for a temporary total rating pursuant to 38 C.F.R. § 4.30 for right knee surgery that took place in July 2011 have not been met. 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1976 to April 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office. 1. Service connection for a right knee disability is denied. The Veteran contends that service connection for right knee disability is warranted. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). Additionally, for certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The Veteran has a current right knee osteoarthritis, status-post total knee arthroplasty, documented on a VA examination in June 2019. Thus, the first element of a service connection claim is satisfied. The Veteran's service treatment records (STRs) reflect that in June 1977, he reported having stiff and painful knees. In October 1977, he underwent surgery for his left knee, and was noted to have a positive McMurray test bilaterally. In December 1977, he reported aching in the right knee. Based on this evidence, the Board concludes that the in-service incident element of a service connection claim is established. However, the preponderance of the evidence of record weighs against finding a nexus between the Veteran's current knee disability and his military service. Although the Veteran reported bilateral knee pain that lasted for two years in February 1978, X-rays taken were within normal limits. Moreover, on his December 1978 separation examination, no abnormalities of the right knee were found and the Veteran raised no relevant complaints on the accompanying Report of Medical History. In February 1979, Physical Evaluation Board proceedings were conducted and the Veteran was found physically unfit for continued military service due to a left knee disability and arthritis of the sacroiliac joints. Following service, the Veteran underwent a VA examination in September 1979. The examiner rendered diagnoses pertaining to the lumbar spine, left knee, and bilateral hips, but a right knee disability was not identified. Treatment records dated from the 1980s and 1990s are similarly silent for treatment or diagnoses pertaining to a right knee disability. On VA joints examination in May 1995, a right knee disability was not found. During a VA examination in August 2011, the Veteran reported that his right knee began to hurt in the 1980s and eventually had to be replaced in 2011. Similarly, during a June 2019 VA examination, he stated that his right knee pain had its onset while he was working as a correction officer after service. Notably, in June 2020, the Board concluded that the June 2019 examiner's negative nexus opinion is not probative because it relied on, in part, an inaccurate factual premise. Notwithstanding, while the opinion is not probative, the Veteran's reporting of the onset of his right knee pain is highly probative. Based on the foregoing, the Board concludes that the nexus element of a service connection claim is not presumptively satisfied because the Veteran's arthritis did not manifest within a year of his separation from service. Nor does the evidence establish continuity of symptomatology. Moreover, the record does not have a competent medical opinion that establishes a nexus between the Veteran's current condition and his military service. To the contrary, according to a March 2012 VA medical opinion, the Veteran reported that his right knee symptomatology began during military service. The examiner reviewed the STRs, and noted the documentation pertaining to the right knee in June 1977, October 1977, December 1977, and February 1978. She opined that the current right knee disability was less likely than not due to military service. The examiner explained that the Veteran's right knee was found to be normal on medical board examination in 1978, and X-rays of the right knee performed during service were normal. In addition, the examiner reasoned that on VA examination just after discharge in 1979, there were no right knee abnormalities found. The examiner further reasoned that abnormalities were shown on x-ray approximately 32 years after dischargein 2011. This opinion is based on review of the claims file, consideration of the Veteran's examination, and contains a clear conclusion supported by a rationale. The Board finds this opinion adequate and probative. VA examinations of the knees were performed in October 2016 and September 2017, but the examiners did not address the etiology of the right knee disability. In summary, service connection cannot be established on direct basis because the competent medical evidence of record weighs against establishing a nexus between the Veteran's current right knee disability and his military service. Similarly, the preponderance of the evidence of record weighs against finding that the Veteran's right knee disability is secondary to his service-connected left knee disability. The Veteran asserts that his physician told him that his right knee symptoms are related to the fact that he compensates due to the severe pain caused by his left knee. See July 2012 Notice of Disagreement. However, the Veteran was provided a VA examination in August 2011, where the examiner did not find medical evidence that supports gait change caused by the Veteran's left knee disability. That examiner concluded that he could not opine on whether or not the right knee disability was caused or aggravated by the service-connected left knee disability without resorting to speculation. The examiner explained that post-service medical records were silent for documentation of a gait abnormality, other than during physical therapy after the left knee replacement. He reasoned that there was no evidence of a gait abnormality of sufficient severity or longevity to support a theory of contralateral joint disease, per medical literature. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the current right knee disability is related to active military service or the service-connected left knee disability, or that a chronic disability was incurred in service. As described, while STRs show right knee complaints, no abnormalities of the right knee was found by the examining physician on his service separation examination in December 1978, or throughout Physical Evaluation Board proceedings in February 1979. The Board infers from this that the earlier instances of right knee problems were acute and transitory. A review of the post-service medical records does not reveal a pertinent disability, or any documentation of arthritis of the right knee, within one year of his April 1979 discharge. To the contrary, x-rays obtained on VA examination in September 1979 did not reveal any right knee disability. The evidence reflects that the current disability was not shown until many years after service discharge. The fact that the Veteran sought treatment for other conditions after service, but not a right knee disability, weighs against the credibility of any assertion that the current disability persisted since discharge. See AZ, 731 F.3d at 1303. The claims file contains treatment records dating back to the 1980s documenting a variety of complaints, without mention of a right knee disability. Because he described other complaints of musculoskeletal pain and provided overall assessments of his health and functioning to his general practitioners, without mention of this condition, it is reasonable to conclude that none was present. Id.; see also Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the Board finds the Veteran's report that his right knee symptoms have persisted since service are not credible given the inconsistencies of his accounts regarding the onset of the disability to VA examiners. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). The medical opinion evidence is also persuasive. The August 2011 VA examiner was unable to attribute the current right knee disability to the service-connected left knee disability by way of causation or aggravation, and emphasized the lack of evidence of a sufficiently severe or longstanding gait abnormality that could support such a relationship. The March 2012 VA examiner addressed the contentions of direct service connection but opined that the Veteran's right knee disability is not related to military service, including the right knee symptoms documented therein. The examiners based the conclusions on an examination of pertinent records in the claims file, including the post-service treatment records and diagnostic reports. They reviewed the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusions reached. The only evidence contrary to the VA examiners' opinions is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such medically complex disabilities as right knee osteoarthritis, status-post total knee arthroplasty. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Moreover, as noted above, the inconclusive nature of his reports regarding the onset of the disability renders his reports unreliable for purposes of determining the etiology of the condition. Notably, in June 2019, the Board remanded the claim to obtain another medical opinion. In accordance with the Board's June 2020 remand directive, in June 2021 the VA Regional Office notified the Veteran at his current address that a VA examination will be scheduled at a private medical facility. In July 2021, notification from the examination facility indicated that the Veteran cancelled the examination, stating over the phone that he did not wish to pursue the claim and did not want to report for the examination. In July 2021 and August 2021, the VA Regional Office wrote to the Veteran, seeking clarification of whether he would like to withdraw his appeal and providing instructions for doing so. He was advised that if he did not respond, VA may proceed with a decision on the claims. The Veteran did not respond to either letter. In September 2021, the VA Regional Office thus made another attempt to provide the Veteran with a VA examination as directed by the Board. In September 2021, the Veteran again cancelled his examination and stated he did not want to reschedule. The Board finds that the Veteran has not withdrawn his appeal pursuant to the provisions of 38 C.F.R. § 19.55. Neither he nor his representative have submitted written correspondence indicating an intent to withdraw any issue from appellate consideration. The Veteran did not respond to the VA Regional Office's attempts to clarify the matter, and his representative has continued to submit arguments on his behalf. See November 2021 Brief. Furthermore, it is clear that the Veteran does not desire that his VA examination be rescheduled and does not wish to participate in the development of his claim. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA's duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). To the extent that information may have been gained to the Veteran's benefit from the two recently scheduled VA examinations, VA made sufficient efforts to have him examined. The Veteran is responsible to assist VA in developing his claims. Thus, the Board has decided the case based on the evidence of record. 38 C.F.R. § 3.655. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. 2. A temporary total evaluation for July 2011 surgical treatment of a right knee disability necessitating convalescence is denied. The Veteran seeks a temporary total rating for convalescence following a total right knee arthroplasty that was performed in July 2011. Under 38 C.F.R. § 4.30, a total rating will be assigned if treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals or the necessity for house confinement or continued use of a wheelchair or crutches; or (3) immobilization by cast, without surgery, of one major joint or more. As explained above, service connection is not warranted for a right knee disability. A non-service-connected disability cannot provide entitlement to a temporary total disability rating due to convalescence because the regulation only applies to service-connected disabilities. Accordingly, the claim for a temporary total evaluation must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that where the law and not the evidence is dispositive, the Board should deny the claim based on a lack of legal merit). Sarone Solomon Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.