Citation Nr: 21075076 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 19-27 551 DATE: December 17, 2021 ORDER Entitlement to service connection for left knee condition, to include degenerative arthritis and total knee arthroplasty (TKA), is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's left knee disability, began in service without clearly attributable intercurrent causes, manifested to a compensable degree within one year of service, or is otherwise related to an in-service disease or injury. CONCLUSION OF LAW The criteria for entitlement to service connection for left knee condition, to include degenerative arthritis and TKA, have not been met. 38 U.S.C. §§ 1110, 1131, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps on active duty from February 1964 to February 1967, with service in the Republic of Vietnam. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). An August 2017 rating decision denied the Veteran's claim of service connection for his left knee disability. In July 2018, the Veteran submitted new and material evidence prior to the expiration of the initial appeal period. The evidence is considered to have been filed in connection with the claim pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, the rating decision did not become final, and the claim remains pending until it is readjudicated considering the new evidence. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2021. A transcript of the hearing has been included with the record. The Board remanded the Veteran's claim in April 2021 to provide further development. The Board remanded again in August 2021 to provide an addendum medical opinion in compliance with the April 2021 remand directives. There has been substantial compliance with the remand directives, and the appeal is again before the Board. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, 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(a). Alternatively, for chronic diseases shown in service, the third element 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). Entitlement to service connection for left knee condition, to include degenerative arthritis and TKA. The Veteran contends that he injured his left knee in service during combat in the Republic of Vietnam. The Veteran asserts his current left knee disability is directly related to his in-service injury. The Veteran's VA medical records note that he received treatment for chronic left knee pain, including physical therapy and corticosteroid injections. Within the period on appeal, the Veteran received a diagnosis of left knee pain and degenerative joint disease. The Veteran's August 2017 radiographs showed end-stage osteoarthritis of the left knee. The Veteran's December 2017 VA treatment record noted the Veteran's history of left knee pain since his left knee surgery in 1981. The Veteran underwent a left TKA in December 2017. The Veteran underwent a VA knee examination in June 2021. The VA examiner noted that the Veteran's VA treatment records revealed that the Veteran was seen and evaluated for knee pain on numerous occasions since 2012 through the present time and was diagnosed with left knee pain and degenerative joint disease. The VA examiner noted the Veteran's history of a left knee condition, including a left TKA in 2017. The VA examiner noted June 2020 x-rays revealed a stable left knee. The Veteran reported a constant pain rated at a two out of ten, with intermittent periods of sharp pain rated up to eight out of ten. The VA examiner reported the Veteran underwent surgery to repair a left knee meniscal tear in 1981. The VA examination noted the Veteran reported injuring his left knee while in service jumping into a foxhole. The VA examiner provided the opinion that it was less likely than not that the Veteran's left knee condition incurred in or was caused by the Veteran's in-service injury, event, or illness. The examiner noted the Veteran's service treatment records did not reveal evidence of a left knee injury. The examiner noted the Veteran received treatment for what may have been an acute injury in 1981, requiring treatment with a left knee meniscal repair. The VA examiner stated there was insufficient evidence to support that the Veteran developed a left knee condition in service responsible for his current knee disability. The VA examiner reported the Veteran's medical records were silent of a left knee condition from the time of discharge to 1981, at which time there is evidence of a left knee injury requiring evaluation and treatment, including operative intervention. Pursuant to the August 2021 Board remand, in August 2021, the RO provided an addendum opinion addressing the Veteran's lay evidence of an in-service injury. The VA examiner who provided the June 2021 examination reviewed the lay evidence submitted and opined that the Veteran likely suffered a left knee injury during his service. Additionally, the VA examiner identified the Veteran's submitted lay evidence, which asserted the Veteran's private orthopedic surgeon, in 1981, noted that the most likely cause of the Veteran's injury occurred during his active-duty service. However, the VA examiner again provided the opinion that it was less likely than not that the Veteran's current left knee condition was incurred in or caused by injuries sustained during his military service. The VA examiner reviewed the Veteran's VA treatment records and noted that the records do not describe the etiology of the Veteran's knee pain stemmed from an in-service injury. The examiner noted the Veteran's medical records did not demonstrate a left knee condition from the time of discharge to 1981, 14 years after separation from service. Further the VA examiner stated the evidence of record indicated the Veteran sustained a knee injury in 1981 (or 1980 according to the Veteran's lay statement), noted as likely an acute meniscal tear, which required evaluation and treatment and ultimately surgical repair. The VA examiner opined that the Veteran's 1981 injury and surgery was likely the etiology of his posttraumatic degenerative changes, leading to the Veteran's TKA. The VA examiner also noted the VA treatment records showed the Veteran's current knee pain was related to a diagnosis of pseudogout. In August 2017 correspondence, the Veteran recounted injuring his left and right knees while serving in the Republic of Vietnam. The Veteran noted that he twisted his knee while taking cover during a mortar attack. The Veteran stated that he experienced intense pain for a short time. Additionally, the Veteran cut his right leg just below the knee. The Veteran also noted that he experienced another left knee injury while in service in 1966. The Veteran reported that while trying out for the Marine Corps basketball team, the Veteran made a sharp move and felt the same intense pain in his left knee. He reported after a short rest he felt alright. The Veteran stated in 1980 he had surgery on his left knee. The Veteran noted that after discussing his injury with the private orthopedic surgeon, the Veteran realized that he tore his cartilage twice while in service. The Veteran submitted a lay statement in July 2018 noting that his private orthopedic surgeon reviewed his medical history and x-rays leading up to his left knee surgery in 1980. The Veteran stated that it was the private orthopedist's opinion that it was more than likely the Veteran's knee problems originated while on active duty, serving in Vietnam from 1965 to 1966. The Veteran's wife submitted a lay statement in July 2018. She stated that she first met the Veteran in 1983. The Veteran's wife noted that he experienced constant pain in his knee and has had difficulty walking and climbing stairs. The Veteran's wife stated that the Veteran mentioned that he had his first knee surgery in 1980 at Scripps Memorial Hospital in La Jolla, California. The Veteran's wife stated that the Veteran's treating knee surgeon determined that the most likely cause of the injury occurred while the Veteran was on active duty, during his service in the Republic of Vietnam. In October 2018, the Veteran submitted a statement made by a Navy field medical technician. The Navy medical technician noted he served for eleven years. While the Navy medical technician did not have first-hand knowledge of the Veteran's injuries, the medical technician noted first-hand experience with the confusion that happens during a firefight and a mass casualty scenario. The medical technician stated that minimally injured Marines are left to provide self-care for their wounds, and there is often no record of the injury. The Navy medical technician stated that often times these injuries will slip through the cracks and not end up in the service member's medical record. The Veteran testified in the March 2021 Board hearing that he injured his left knee during a mortar attack while in service in the Republic of Vietnam. The Veteran reported that he twisted his knee jumping into a foxhole. The Veteran recounted feeling intense pain for a short period of time, and then the pain went away. The Veteran testified that, later while in service, he made a sharp move while trying out for the Marine Corps basketball team and felt the same intense pain in his left knee he felt in the Republic of Vietnam. The Veteran noted that the pain only lasted a short period and went away. The Veteran stated that he did not experience additional symptoms other than pain. Additionally, the Veteran testified that his private orthopedic surgeon stated that his knee condition was related to his in-service injuries. The Veteran described his two in-service knee injuries to the private orthopedic surgeon, and the Veteran stated that it was the doctor's determination that the Veteran's in-service injuries were the origin of the Veteran's knee disability. The Veteran testified that the medical records from his knee treatment and surgery were unavailable. The Veteran testified that there was a tear in the knee that just continually progressed and worsened. The Veteran noted that eventually his arthritis and pain required a total knee replacement. The Board establishes the evidence of record shows the Veteran suffered from a left knee condition throughout the period of appeal, including degenerative arthritis ultimately resulting in a left TKA in December 2017. Additionally, the evidence of record, including the Veteran's submitted lay evidence, establishes the Veteran injured his knee during a mortar attack in service in the Republic of Vietnam. Where the evidence of record demonstrates a veteran engaged in combat, satisfactory lay evidence that an injury incurred in service will be accepted as sufficient proof of an in-service incurrence of that injury where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154(b). The combat rules not only reduce the evidentiary burden for establishing in-service injury, but also allow a combat veteran to use "satisfactory lay or other evidence" to establish that he incurred the disability itself in service, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). However, 38 U.S.C. § 1154(b) does not provide a substitute for medical-nexus evidence required to establish service connection for a veteran's in-service injury. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Thus, the issue of service connection for the Veteran's left knee condition turns on whether the evidence of record establishes a nexus relationship exists between the Veteran's current disability and his in-service injury. Here, the Board finds the evidence of record does not support such a finding. The Board finds the medical opinions offered in the June 2021 VA examination and the August 2021 opinion to be highly probative evidence that the Veteran's current knee disability is not etiologically related to the Veteran's in-service injury. The VA examiner noted the evidence of record is silent of the Veteran's left knee disability from the time of the Veteran's discharge until 1981, 13 years after separation. While the VA examiner assumed the Veteran incurred a left knee injury in service, the VA examiner noted the evidence does not support the Veteran's in-service left knee condition was responsible for the Veteran's current condition. The VA examiner opined that the Veteran's 1981 left knee meniscal repair surgery indicated the Veteran suffered a likely acute meniscus tear around that time. The VA examiner noted that the Veteran's post-service injury was the likely etiology of the Veteran's degenerative arthritis leading to the Veteran's December 2017 left TKA. The Board assigns high probative weight to the VA examiner's August 2021 medical opinion, as the opinion was supported by a fully articulated rationale with consideration of the Veteran's medical history and a thorough physical examination of the Veteran. See Prejean v. West, 13 Vet. App. 444 (2000); see also Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board notes the VA examiner's assessment of the Veteran's knee condition is consistent with the evidence of record, including the Veteran's lay testimony, noting no continuity of symptoms or care for the Veteran's knee condition until 1981. The absence of evidence is not substantive negative evidence that a nexus relationship does not exist between the Veteran's current condition and service. Horn v. Shinseki, 25 Vet. App. 231, 239, n.7 (2012) (citing Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). The Board may weigh a claimant's lay statements against the absence of contemporary medical evidence. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). However, the Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. Horn, 25 Vet. App. at 239. The Board recognizes that the Veteran submitted lay statements establishing that he underwent surgery on his left knee in 1980. Although there is some inconsistency in the date of the Veteran's surgery, the Veteran's medical treatment records are consistent with the Veteran's lay account, and note the Veteran's left knee meniscal repair in 1981. The Veteran stated in his July 2018 correspondence that the private treating orthopedist reviewed x-rays and evidence leading up to the 1980 left knee surgery. The evidence of record does not reveal precipitating events or the state of the Veteran's left knee condition leading to the Veteran's left meniscal surgery. Here, the Board relies on the Veteran's lay testimony to establish the Veteran's post-service condition. The Board notes that the Veteran's lay testimony established that the Veteran experienced two short periods of intense pain while in service; however, the Veteran does not report residual symptoms following the Veteran's in-combat injury or his claimed injury during his 1966 basketball tryout. The Veteran's separation examination reports normal clinical evaluations for the Veteran's lower extremities. Moreover, the Veteran does not report symptoms of a post-service left knee condition until his 1980 left knee meniscal repair. The Veteran's lay statements establishing the symptomatology of his left knee condition do not contradict the medical evidence of record regarding the absence of treatment until 1980, 13 years after separation of service. Although the absence of medical treatment records since service is not dispositive, the fact of this chronology, when considered with the Veteran's lay evidence, must be considered as it bears probative evidence against a nexus between the Veteran's current knee disability, a likely post-service intercurrent knee condition noted by the June 2021 VA examiner, and the Veteran's in-service left knee injury. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board is sympathetic to the fact that the Veteran's private medical records documenting the evaluation and treatment he received for his left knee condition in 1980 are unavailable. Again, the Board may weigh the Veteran's lay statements against the absence of contemporary medical evidence. Fountain, 27 Vet. App. at 272. The Board notes the Veteran's account of the private treating orthopedist's medical opinion that the Veteran's knee condition in 1980 resulted from the Veteran's left knee injury in active-duty service. Here, the Board notes the Veteran is competent to report a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As a medical opinion is not required to establish a nexus relationship sufficient for a finding of service connection, the Board must address the Veteran's lay evidence account of the private orthopedic surgeon's positive nexus opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must consider all the evidence of record and make appropriate competence, credibility, and weight determinations. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary of VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran is competent to provide lay evidence of the Veteran's private orthopedic surgeon's positive nexus statement, as it was related to and perceived by the Veteran at the time of the Veteran's left knee treatment in 1980. Jandreau, 492 F.3d at 1377. Additionally, the Board cannot ignore the Veteran's testimony simply because the Veteran is an interested party; however, the Board may consider the Veteran's self-interest when determining credibility and probative value of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Here, the Board assigns little probative value to the Veteran's lay account of the positive nexus opinion provided by the treating private orthopedic surgeon in 1980. The Veteran's testimony in the March 2021 hearing noted the Veteran's private surgeon determined the Veteran's knee condition started in service. Additionally, the Veteran submitted a lay statement in July 2018 that stated that it was the Veteran's orthopedic surgeon's opinion that more than likely the Veteran's knee problems originated while on active duty. The Veteran's lay statements did not recount an exact diagnosis or specific statement made by the private physician addressing the Veteran's 1980 knee condition sufficient for the Board may make an informed decision on the matter. Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Board acknowledges the Veteran's lay statements relay a positive medical nexus opinion, the Board notes the private physician's opinion was made in 1980, at least 37 years before the Veteran's submitted lay evidence. The Board recognizes the Veteran's competent account of the statements made in 1980; however, the Board considers the effects the amount of time may have on the accuracy and impartiality of the Veteran's account of the positive medical nexus opinion. As such, the Veteran's lay statements, including a positive medical nexus opinion, lack sufficient medical detail required to provide probative evidence of a nexus between the Veteran's current left knee condition and his active-duty service. See generally Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board considered the Veteran's lay statements reporting the private orthopedic surgeon's positive nexus opinion in 1980, but assigns a greater probative weight to the August 2021 VA examiner's medical opinion than to the Veteran's lay statements. Additionally, the Board assigns low probative weight to the statements submitted by the Veteran's wife in July 2018. The Veteran's wife provided statements that the Veteran's private orthopedist determined that the most likely cause for the Veteran's knee condition in 1980 was the injury incurred while the Veteran was in active duty. Here, the Board notes the Veteran's wife stated she first met the Veteran in 1983, and accounts of the Veteran's private physician's medical opinion were not first-hand. Thus, as the statements of the Veteran's wife are recitations of the Veteran's accounts of his private surgeon's nexus opinion, the Board assigns little probative value to the evidence. Further, the Board notes that lay persons are competent to provide opinions on certain subjective medical issues and of observable symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, since the cause of his left knee condition can be a complex medical matter involving multiple surgeries, the Veteran as a layperson without the appropriate medical training and expertise, is not competent to provide a probative opinion as to an etiological relationship between his current left knee condition and a prior in-service injury. See Jandreau, 492 F.3d at 1377. The Board has also considered whether presumptive service connection is warranted for the Veteran's left knee degenerative arthritis. However, the lay and medical evidence of record does not show that the Veteran was diagnosed with arthritis within one year after discharge from service. See 38 C.F.R. § 3.307(a)(3). Thus, presumptive service connection is not warranted. Additionally, the Veteran's medical records present evidence of an attributable intercurrent left knee meniscal tear and surgery in 1980, negating the theory of entitlement to service connection based on continuity of symptomatology for the Veteran's degenerative arthritis of the left knee. 38 C.F.R. §§ 3.303, 3.307. Thus, the Board finds the probative evidence of record is against the claim for service connection. In reaching this conclusion, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against a finding of service connection, the doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.