Citation Nr: 21074193 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-28 987 DATE: December 14, 2021 ORDER 1. Entitlement to service connection for a right knee disability, to include degenerative joint disease and patellofemoral syndrome is denied. 2. Entitlement to service connection for a left knee disability, to include degenerative joint disease and patellofemoral syndrome is denied. FINDINGS OF FACT 1. A right knee disability, to include degenerative joint disease and patellofemoral syndrome did not have its onset in service, was not manifested to a compensable degree within one year of service discharge, and is not otherwise related to service. 2. A left knee disability, to include degenerative joint disease and patellofemoral syndrome did not have its onset in service, was not manifested to a compensable degree within one year of service discharge, and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability, to include degenerative joint disease and patellofemoral syndrome have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left knee disability, to include degenerative joint disease and patellofemoral syndrome have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 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 in the United States Army from May 1966 to May 1968. In his August 2015 VA Form 9, the Veteran requested a Board hearing, but he subsequently withdrew the request in January 2018 correspondence. Accordingly, the request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.702. In a July 2018 Board decision, entitlement to service connection for a right knee disability and a left knee disability was denied. The Veteran appealed the July 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2020 order, the Court vacated the Board's decision and remanded the issue pursuant to a Joint Motion for Remand (JMR). In a June 2020 Board decision, entitlement to service connection for a right knee disorder and a left knee disorder was once again denied. The Veteran appealed the June 2020 decision to the Court. In an April 2021 order, the Court vacated the Board's decision and remanded the issue pursuant to another JMR. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 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. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 1. Entitlement to service connection for a right knee disability, to include degenerative joint disease and patellofemoral syndrome. 2. Entitlement to service connection for a left knee disability, to include degenerative joint disease and patellofemoral syndrome. Due to the similar evidentiary and legal analysis for these issues, they shall be discussed jointly as a bilateral knee disability. In the January 2020 JMR, the Board was directed to consider whether the Veteran is entitled to presumptive service connection for a chronic disease. In the June April 2021 JMR, the Board was directed to provide an adequate rationale for its decision consistent with the rulings in Kahana and Fountain. See Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) and Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for a bilateral knee disability on a direct or presumptive basis. The reasons follow. The Veteran has been diagnosed with a bilateral knee disability, and thus there is evidence of a current disability. For example, in a March 2012 VA treatment record the Veteran was diagnosed with a degenerative joint disease of the knees. In the December 2012 VA examination, the Veteran was diagnosed with bilateral patellofemoral syndrome. A September 2001 VA treatment record contains a general diagnosis of degenerative joint disease, but it is not specifically related to the Veteran's knees. Thus, the facts establish that the first element of a service-connection claim is met. As to an in-service disease or injury, the evidence also supports a finding of a disease or injury in service indicative of a bilateral knee disability. In service records from January 1968, the Veteran complained of problems and pain with his knees. Upon examination, the Veteran was found to have normal findings in his knees. However, in a Report of Medical Examination from May 1968 at separation, the Veteran was found to have normal findings in his lower extremities. In a Report of Medical History from May 1968 at separation, the Veteran denied a history of arthritis or rheumatism; bone, joint, or other deformity; lameness; and trick or locked knee, which tends to show that he was not experiencing a bilateral knee disability in service. Accordingly, the Board finds the evidence supports a finding of complaints or symptoms related to a bilateral knee disability during service, and the in-service disease or injury element is met. However, the preponderance of the evidence is against a nexus between a current bilateral knee disability and active service. For example, the Veteran was first diagnosed with a bilateral knee disability in March 2012, which is approximately 44 years after service, and tends to establish that a bilateral knee disability did not have its onset in service. In a July 2008 private treatment record, the Veteran reported his medical history to his psychologist, Dr. Kathy DeOrnellas. The Veteran reported his history of high blood pressure, cholesterol, chloracne, and his psychiatric medications. The Veteran did not report a history of knee or joint problems. In a May 2009 VA examination for PTSD, the Veteran stated that he had "some joint and muscle pain" but felt that it was normal for his age. The Veteran also reported a history of degenerative joint disease, but did not state that it was a diagnosis related to his knees. As the Veteran did not report a history of knee problems or a diagnosis of a knee disability in these records, these records tend to weigh against a finding that the Veteran's bilateral knee disability was incurred in or otherwise related to service, or that the Veteran's knee symptoms were continuous with service. In a March 2012 VA treatment record, the Veteran reported that a private physician diagnosed him with "old knees," attributing the Veteran's knee disability to age related factors. This evidence also tends to weigh against a finding that the Veteran's bilateral knee was incurred in or otherwise related to service. In an October 2012 VA Form 21-4138, Statement in Support of Claim, the Veteran's son stated that the Veteran told him that his knee problems started during service. The Veteran also submitted three buddy statements dated in July 2013. Mr. T. W., who was the Veteran's coworker during his employment after service, stated the Veteran regularly complained about knee problems. The Veteran told T. W. that he worked on his knees during service. A friend of the Veteran, Mr. G. E. B., stated that he knew the Veteran prior to service and the Veteran did not have knee problems prior to service. G. E. B. stated that subsequent to the Veteran's deployment during the Vietnam war, the Veteran did not have any issues with his knees. G. E. B. reported that ever since service, the Veteran has regularly complained of symptoms related to his knees. Another friend of the Veteran, Mr. M. B., stated that the Veteran never had knee problems prior to returning from service. As discussed below, the Board finds that these statements are outweighed by the objective medical evidence of record. In an October 2012 statement, the Veteran stated he and all of his fellow soldiers began to experience knee pain after the work during service. The Veteran stated that he complained to the medics, but was told nothing could be done unless the problem progressed to the point that he could not walk. The Veteran stated he was given asprin. The Veteran reported that he went to a doctor one month after returning from service in 1968 and was told that his knees were "ruined." The Veteran stated he has had knee problems ever since. These treatment records are not included in the claims file, but the Veteran reported that the doctor's records were unavailable. In a September 2018 statement, the Veteran stated that his physician, Dr. Paul Weathers, told the Veteran that he had inflammation of the joints of the knees, and required surgery. The Veteran declined the surgery due to the fact that he did not have medical insurance at the time, however Dr. Weathers informed him that he would have arthritis in the future. In an August 2015 VA Form 9, the Veteran contended that his knee problems have been continuous since service. The Veteran stated that during service he spent eight to 10 hours per day on his knees on concrete slabs. As discussed below, the Board finds that these statements are non-probative evidence. In a December 2012 VA examination, the examiner opined that the Veteran's bilateral knee disability is less likely than not related to service. The examiner explained it was more likely that the degenerative changes in the patellofemoral compartment were related to the effects of aging, musculoskeletal deconditioning, and a genetic predilection to developing a degenerative joint condition. In light of the VA examiner's review of the Veteran's reports of knee pain during service and the analysis of the likely etiology of the Veteran's bilateral knee disability, the Board affords this opinion probative value and finds that it establishes that a bilateral knee disability did not have its onset in service and is not otherwise related to service. In a July 2021 statement, the Veteran stated he worked in non-strenuous positions after service, employed as backup personnel to ambulance crews and driver as a part of a fire department between 1979 to 1997, when he took an early retirement due to the status of his knees. In another July 2021 statement, the Veteran stated that he should be granted service connection because his knee symptoms have been continuous since service. The Veteran also stated that he denied experiencing knee problems and denied a history of knee problems during his separation examination in May 1968 because he feared he would experience a delay in being released from service. Additionally, the Veteran contended that the May 1968 examination was inadequate, because the examiner was careless in noting the Veteran's symptoms. The Veteran also contended that the questions in the May 1968 Report of Medical History were not comprehensive enough to consider the Veteran's symptoms at the time, and his responses did not provide a thorough account of the Veteran's experienced symptoms of knee pain. The Veteran stated that he has continuously experienced symptoms in the 1970s, 1980s, 1990s, and 2000s, and that his lay statement constitutes competent and credible evidence of these symptoms. The Veteran reported utilizing over the counter pain medication to treat his symptoms during this time period. The Veteran reported that he did not seek treatment for his knees during this time period because he was busy caring for his home and family. The Veteran reported that his post-service employment involved less strenuous duties, and that he sought early retirement because of his knee disability. The Veteran stated that he did not seek entitlement to service connection for his bilateral knee disability until 2012 because his symptoms were tolerable up until then, but subsequently increased in severity to the point that the Veteran felt that he needed to seek service connection. The Veteran also contended that his statements during May 2009 PTSD VA examination were not dispositive of his disability because they were made to a mental health treatment provider and were brief comments not intended to fully describe his health. The Veteran alternatively contends that the December 2012 VA examination was inadequate, because it relied upon an incorrect standard of continuity of symptomatology and failed to consider the relationship of the Veteran's current disability to his post-service symptoms; for failing to provide a rationale regarding the opinion that the Veteran's disability is due to genetic factors; and because it did not consider the Veteran's assertions of continued symptomatology. With regard to the Veteran's reported diagnosis of a knee disability shortly after service in 1968, the Veteran is competent to report a medical diagnosis. However, the record does not support that the Veteran has reported this diagnosis in any subsequent private treatment record, VA treatment record, or VA examination, including when seeking treatment for his knee disability. The Board finds that it is reasonable to assume that the Veteran would have provided an accurate medical history during visits to treatment providers, and in the above-mentioned July 2008 private treatment record, the Veteran provided significant details about his medical history, describing other medical issues and medications he was utilizing, without any reference to knee symptoms or a knee disability. In the May 2009 VA examination, the Veteran once again did not recount any diagnosis of a knee disability but did reference several other medical diagnoses. The Veteran generally referenced joint pain but did not otherwise report knee problems for the past several decades. The Board may weigh a claimant's lay statements against the absence of contemporary medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. See Horn v. Shinseki, 25 Vet. App. 231, 239. In Horn, the Court held that the absence of evidence cannot be substantive negative evidence without "a proper foundation [...] to demonstrate that such silence has a tendency to prove or disprove a relevant fact." 25 Vet.App. at 239 n.7. As to the Veteran's contention of continuous symptoms after service, the kinds of statements documented within medical records (reporting the history of a medical problem) tend to be highly credible, as it is in the patient's best interest to provide an accurate medical history to receive the most appropriate course of care. The Court has recognized how a medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to receive the best or most appropriate medical care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). When a claimant alleges the onset of disability during service and continuously since the in-service onset, the absence of corroborating evidence in the examination for service discharge or an adjunct medical history questionnaire is a matter for consideration. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011). Here, the Veteran recounted numerous other medical issues in the June 2008 private treatment record and the May 2009 VA examination, but did not mention any symptoms or diagnoses related to his knees. The Board finds the Veteran's lay statements about the onset and progression of his symptoms over the course of several decades, the diagnosis of "ruined" knees requiring surgery, the buddy statements from the Veteran's son and friends regarding the onset of his knee problems, and the fact that he took an early retirement due to the condition of his knees, is the type of information that would have been reasonably reported in the context of recounting his own medical history. Accordingly, the Veteran's current contentions regarding ongoing knee symptoms during and since active service are outweighed by the objective medical evidence of record, in which the Veteran did not report any prior evaluation or treatment of longstanding knee problems or related symptoms when recounting his medical history on multiple occasions. Once again, given the severity of the diagnosis reported by the Veteran, the Veteran's report of a recommendation for immediate surgery which he elected not to undergo, the Veteran's reports of more than four decades of continuous knee problems, and the fact that the Veteran was forced to retire from his employment due to his knees, the Board finds that this is the type of information that the Veteran would have been motivated to reveal in the context of seeking medical treatment. The fact that the Veteran did not report this medical history, while discussing other medical problems to private and VA treatment providers supports a finding that the Veteran's statements are not credible and are non-probative evidence. As to the Veteran's contention that the May 1968 Report of Medical Examination was inadequate, the Board notes that the examination appropriately documents the Veteran's clinical findings, properly conducted a PULHES evaluation, and found that the Veteran was found qualified for separation. Although the Veteran contends that this record was carelessly made, because the examiner documented findings in "Section 43, Pelvic (Females only)" section of the examination, a review of the document does not support the Veteran's contention. As to the Veteran's contention that the May 1968 Report of Medical History did not contain sufficiently detailed questions to adequately contemplate his symptoms of knee pain, the record does not show that the Veteran reported any other symptoms related to his knees. Within the notation section of the Report of Medical History, the examiner did not document any knee symptoms. Instead, the Veteran reported that his present health at the time was "Good." The Board affords these records probative value as they were created contemporaneously to service. As such, the Veteran's contentions are outweighed by the record, and VA has fulfilled the duty to assist. The Veteran contends that the December 2012 VA examination was inadequate for failing to consider "a nexus between the present disability and postservice symptoms" (emphasis added by the Veteran's representative) under the ruling of Fountain. However, the Veteran incorrectly recites the standard espoused in this case. The ruling in Fountain states that for certain chronic diseases, service connection may also be established by showing continuity of symptoms, which requires a claimant demonstrate to demonstrate (1) a condition "noted" during service; (2) evidence of postservice continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptoms. In the instant case, the Veteran's statements about his postservice continuity of symptoms related to the knees have been found to be non-probative evidence, and accordingly do not impact the adequacy of the December 2012 VA examination. Additionally, the Board notes that the December 2012 VA examination report specifically documents the Veteran's contentions of in-service knee symptoms and current symptoms, and the examiner stated that the Veteran's entire claims file was reviewed. With regard to the contention that the December 2012 VA examination inadequately discussed the opinion that the Veteran's disability is due to genetic predilection to developing degenerative joint disease because it failed to discuss how the Veteran could have a genetic predilection ot this disability even though other family members were not diagnosed with this issue. However, the record does not support that the examiner based his opinion on review of the Veteran's familial medical history, and instead based it upon a review of the Veteran's claims file, diagnostic testing of the Veteran's knees, and examination of the Veteran. In light of the foregoing, the Board finds that the December 2012 VA examination is adequate, and that VA has fulfilled the duty to assist. As to presumptive service connection for a chronic disease, the Board finds that the Veteran did not incur an event, injury, or disease related to his current bilateral knee disability in service and that his bilateral knee disability did not manifest during service or within one year of separation from service. Furthermore, the evidence of record does not demonstrate that the Veteran's symptoms have been continuous since separation from service. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). In light of the above analysis, the Board finds that there were no complaints, diagnosis, or treatment for this disability for approximately 44 years following service discharge until the Veteran was diagnosed with degenerative joint disease of the knees in 2012. The absence of post-service complaints, findings, diagnosis, or treatment for approximately 44 years after service is one factor that tends to weigh against a finding of continuous symptoms since separation from service. The Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. While the Veteran alleges that the bilateral knee disability is related to service, to include the ongoing pain and functional impairment of his knees, he is not competent to attribute the bilateral knee disability to service, as medical expertise is required. In this regard, the question of causation 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 opinion is nonprobative evidence. At the present time, there is no competent evidence of a nexus between the bilateral knee disability and service, and the nexus element of a service-connection claim is not met. (Continued on the next page) In sum, for all the reasons laid out above, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for a bilateral knee disability. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. D. C. JOHNSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Husain, 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.