Citation Nr: 21076114 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-22 681 DATE: December 22, 2021 ORDER New and material evidence has been received to reopen a claim to service connection for right knee degenerative joint disease. Entitlement to service connection for a cervical spine strain, claimed as an upper neck condition, is denied. Entitlement to service connection for right knee degenerative joint disease is denied. FINDINGS OF FACT 1. In February 1993, the VA denied entitlement to service connection for a right knee condition. Appellate rights were provided but the Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. 2. New evidence since the February 1993 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating a claim for entitlement to service connection for a right knee condition. 3. The preponderance of the evidence is against finding that the Veteran's cervical spine strain began during active service, or is otherwise related to an in-service injury or disease. 4. The Veteran's right knee condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The February 1993 rating decision that denied entitlement to service connection for bilateral hearing loss is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105; 38C.F.R. §§3.156, 20.1103. 2. The criteria for service connection for a cervical spine strain are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for right knee degenerative joint disease are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 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 from April 1988 to August 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veteran's Law Judge in August 2021; a transcript has been associated with the file. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims interpreted the language of 38C.F.R. §3.156(a) as creating a low threshold. 1. New and material evidence has been received to reopen a claim for entitlement to service connection for a right knee condition. In a February 1993 rating decision, VA denied entitlement to service connection for a right knee condition based on a finding that the record did not show the Veteran had a current right knee disability. The Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. This decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran underwent a VA examination in March 2017. The examiner diagnosed the Veteran with degenerative joint disease of the right knee. Additionally, during the August 2021 hearing, the Veteran asserted his right knee condition began in service as a result of a motor vehicle accident and has continued to worsen since that time. The Veteran's wife further states that she met the Veteran approximately two years after the Veteran's separation from service and he has had knee issues since that time. These new assertions are material in that they relate to an unestablished fact and raise a reasonable possibility of substantiating the service connection claim. The Board thus reopens the Veteran's claim of entitlement to service connection for a right knee condition with degenerative joint disease for a de novo review on the merits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection 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; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, such as degenerative joint disease (arthritis), will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 2. Entitlement to service connection for a cervical spine strain, claimed as an upper neck condition. The Veteran asserts his current neck condition began in service as a result of a motor vehicle accident (MVA) while on active duty. The Veteran was diagnosed with a cervical spine strain during a March 2017 VA examination. As a result, the first element of service connection, a current disability, has been met. The Veteran asserts he was involved in a MVA in service that resulted in his current neck condition. The Veteran's service treatment records show he was involved in an MVA in October 1989 that resulted in an injury to his right eye. The second element of service connection has been met. The question remaining before the Board is whether the Veteran's current neck condition is a result of the MVA he suffered in service. The Veteran's service treatment records are silent for complaints and symptoms of a neck condition. The Veteran's March 1988 enlistment examination is negative for issues regarding his neck. The Veteran was given another examination in April 1990 in which neither complaints of neck injuries nor symptoms of a neck condition were reported. In the October 1989 notation regarding the MVA, no issues regarding the Veteran's neck were noted nor were there any neck issues reported in the follow up appointments for treatment of his right eye injury. In July 1990 the Veteran submitted a report of medical history in which he does not assert any issues regarding his neck. The Veteran underwent a VA examination for evaluation of residuals of a traumatic brain injury in September 2013. Concerning his neck, the Veteran asserted he had experienced intermittent pain for the past 5 years. Onset of pain 5 years prior to the date of this exam would be approximately 18 years after his separation from service. Additionally, during the examination the examiner noted the neck to be "normal." The Veteran's VA treatment records are silent for any complaints of neck pain from the time he began seeking treatment through the VA in February 2002 through June 2018. The Veteran's routine neck examinations are consistently noted as normal. In March 2017, the Veteran underwent a VA examination for his neck condition. The examiner diagnosed the Veteran with a cervical strain noting that a more precise diagnosis cannot be rendered as there is "no objective data to support a more definitive diagnosis." The Veteran reported that he injured his neck during the October 1988 MVA in service and that he has experienced neck pain since that time. The Veteran did not report flare ups of his condition. The examiner concluded that his neck condition was less likely than not related to his active-duty service to include the MVA. The examiner reasoned that the Veteran's service treatment records are negative for any treatment for or diagnosis of a neck condition. Additionally, the examiner stated that the Veteran has, "240 medical notes in CPRS since 1999, all of which are silent for neck pain" until the September 2013 VA examination for any residuals of a traumatic brain injury. The examiner concluded the medical evidence of record suggests the Veteran's neck condition onset approximately 18 years after his separation from service and thus was not a result of his active-duty service. The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As a result, it is afforded probative weight. The Veteran was afforded a hearing in August 2021. Here the Veteran again asserts that he injured his neck in a MVA during service for which he now requires pain medication. The Veteran asserts he has experienced neck pain since service. The Veteran also asserts he received treatment for his neck condition prior to 2002 but then states he was self-treating his pain at home. He then states that prior to establishing care with the VA in 2002 he was self-treating his pain with over-the-counter medication and a rotation of ice and heat packs. The Veteran's wife, who he met approximately 2 years after his separation from service, stated the Veteran has had issues with his neck since she has known him. She asserts she helps him with his pain management. While the Veteran and his wife are competent to report neck symptoms that are experienced or observed, as explained below the Board finds that the reports of continuous symptoms since service lack some credibility because they are inconsistent with the other evidence of record. 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. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). "The absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded." Id. In this case, the Veteran's recent statements reporting a long history of symptoms of the claimed disability are contradicted by past records in which he appears to have reported all of his existing medical conditions without mentioning any problems related to his neck condition to include any reports of neck pain. See AZ v. Shinseki, 731 F.3d 1303, (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing FED. R. EVID. 803(7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"). In particular, the Veteran's VA medical records list numerous medical complaints, but nothing related to the currently claimed neck condition. As noted by the VA examiner, VA treatment records contained 240 medical notes since 1999, all of which are silent for neck pain. Based upon the language and context of the Veteran's VA medical records, the Board finds that the Veteran was reporting all the medical conditions and accompanying symptoms that he was experiencing at that time. Therefore, his failure to report any complaints of a neck condition is persuasive evidence that he was not then experiencing any relevant problems and outweighs his present recollection to the contrary. The evidence preponderates against finding that the Veteran's neck condition is directly related to any in-service event or injury to include the MVA. To the extent the Veteran believes his neck condition is related to his active-duty service, he is not medically competent to provide an opinion in this regard. While the Veteran and his wife are competent to report on certain medical issues, they are not competent in this case to link his neck condition to his active service to include an October 1988 MVA. An opinion of that nature requires medical expertise that is outside the realm of common knowledge of a layperson and the Veteran and his wife do not have relevant medical training, experience, or education. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, they are not competent to provide an etiology opinion in this case. In this case, the Board finds the only competent nexus evidence weighs against the claim for service connection. The first complaints and objective evidence of a neck condition did not occur until September 2013, indicating an onset of neck pain 18 years after his separation from active-duty service. As a result, the probative evidence shows that the Veteran's neck condition had its onset years after service, and there is no competent evidence of record to link the Veteran's neck condition with an incident of service. As there is not a balance of evidence both for and against the claim, the benefit of the doubt doctrine is not for application. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for the Veteran's neck condition is not warranted. 38 C.F.R. § 3.303. The claim is denied. 3. Entitlement to service connection for right knee degenerative joint disease. The Veteran asserts his right knee condition is a result of an MVA that occurred in service and that he has experienced pain since that time. As stated above, the first two element to service connection are a current disability and an inservice event, injury, or illness. During a March 2017 VA examination, the Veteran was diagnosed with degenerative joint disease in the right knee. As indicated above, the Veteran was in a MVA in October 1988 while in service. The first two elements of service connection have been met. The question remaining before the Board is whether the Veteran's current right knee condition is a result of his active-duty service to include the MVA in 1988. The Veteran's service treatment records show some reports of knee pain while in service. The Veteran's March 1988 enlistment examination and July 1990 physical are negative for reports of knee pain. However, the Veteran reported an issue with his knee in April 1988. In May 1988, the Veteran reported pain over his right kneecap, he was given motrin, and sent to physical therapy for an evaluation. During the May 1988 physical therapy note, the Veteran was given a brace. He reported he was on a run when he fell which increased his symptoms. This was prior to the October 1988 MVA in service. In an October 1988 medical note regarding the MVA, the Veteran reported a right ankle and right eye injury but no issues concerning his right knee were reported. The record does not reflect that the Veteran reported any right knee pain after the October 1988 MVA at any time while in service. The Veteran had a VA examination for his right knee in September 1990. The examiner noted the Veteran was diagnosed with a stress injury to the right knee and given a brace while in service. The examiner noted a history of a right knee condition but that it did not result in a functional disability. There was no swelling, redness, nor tenderness in the right knee and his range of motion was normal. The Veteran could squat, rise, stand on his feet, walk on tip toes, and his heels. X rays of the Veteran's knees were taken during the exam and noted to be normal. The examiner declined to provide a current diagnosis for the Veteran's right knee at that time. The first assertion of a knee condition in the Veteran's VA treatment records was in September 2011 in which the Veteran reported knee pain. He has consistently asserted knee pain in his VA outpatient records since that time. In a January 2013 statement in support of his claim, the Veteran asserted he had been receiving treatment for his knee condition and had x rays taken through the VA in 2012. The Veteran's VA treatment record show his right knee was x rayed in October 2012 and he was diagnosed with bilateral degenerative joint disease. The Veteran's medical treatment records also reflect he was participating in physical therapy for both of his knees in September 2012 to November 2012. In October 2012, the Veteran reported his knee pain began approximately 10 years prior to the date of the examination, which would be about 12 years after his separation from service. In March 2017, the Veteran underwent a VA examination for his right knee condition. The examiner confirmed the Veteran's diagnosis of degenerative joint disease based off of the October 2012 x ray evidence. However, the examiner concluded the Veteran's right knee condition was not a result of his active-duty service. The examiner stated that the Veteran was diagnosed with patellofemoral syndrome in service which was then later noted as resolved. The examiner stated this was likely an "acute and transitory condition as there is no objective evidence of medical treatment for right knee pain immediately post service and not until 2011, 21 years post service." The examiner stated that a diagnosis of degenerative joint disease in 2012 is, "a common finding in [the Veteran's] age cohort." As there was no evidence of a knee condition since service until 2011 and the diagnosis provided is typical of an individual of the Veteran's age, the claimed right knee condition was less likely than not a result of his active-duty service. The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl, 21 Vet. App. 120; Nieves-Rodriguez, 22 Vet. App. 295. As a result, it is afforded probative weight. The Veteran was afforded a hearing in August 2021. The Veteran asserted he injured his right knee in service during the October 1988 MVA and his pain has continued to the present time. His wife asserts that the Veteran has had knee issues since she met him approximately two years after his separation from service. The Veteran asserts he was self-treating his knee pain and his wife asserts she would often help with icing and heating pads. The Veteran further asserts he was seeking medical care for his knee prior to establishing care with the VA in 2002 but it was all self-treatment for his pain management. As discussed in the prior section, 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. Fountain, 27 Vet. App. at 272. In this case, the Veteran's recent statements reporting a long history of symptoms of a right knee condition are contradicted by past records in which he appears to have reported all of his existing medical conditions without mentioning any problems related to his right knee condition to include any reports of right knee pain until 2011 despite seeking care through the VA since 2002. See AZ, 731 F.3d 1303; Buczynski, 24 Vet. App. 221; Kahana, 24 Vet. App. 428. In particular, the Veteran's VA medical records from 2002 to 2011 list numerous medical complaints, but nothing related to the currently claimed right knee condition. Based upon the language and context of the Veteran's VA medical records, the Board finds that the Veteran was reporting all the medical conditions and accompanying symptoms that he was experiencing at that time. Therefore, his failure to report any complaints of a right knee condition at that time, is persuasive evidence that he was not then experiencing any relevant problems and outweighs his present recollection to the contrary. The Board notes that the Veteran's first claim to service connection for a right knee condition was in September 1990. The Veteran was afforded a VA examination in September 1990 in which the examiner noted the Veteran had right knee pain in service and was diagnosed with a knee strain. However, on the date of examination, the Veteran did not report any additional pain. The examiner noted there was no swelling, redness, or tenderness in the right knee. Flexion, extension, and rotation of the knee were all normal. The Veteran could squat, rise, stand on his feet, and walk on his tip toes and heals. There was no evidence of muscle atrophy and the examiner noted that there was no functional disability. The Veteran's right knee was x-rayed and found to be normal. No diagnosis for the right knee was provided, indicating the Veteran did not have a current disability at the time of this examination. The Board also notes the examiner's reference to a diagnosed right knee strain in service in May 1988. However, due to a lack of asserted symptoms by the Veteran since that time and a lack of diagnosis provided by the September 1990 VA examiner his right knee strain diagnosed in service appears to have resolved by the time of the September 1990 examination. As the Veteran did not report any right knee condition symptoms since his initial complaint in September 1988 nor at the time of the September 1990 VA examination until September 2011, the Boards continues to find that his failure to report any complaints of a right knee condition is persuasive evidence that he was not then experiencing any relevant problems, despite the fact that he filed a service connection claim for a right knee in the interim. Fountain, 27 Vet. App. at 272. The evidence preponderates against finding that the Veteran's right knee condition is directly related to any in-service event or injury to include the MVA. To the extent the Veteran believes his right knee condition is related to his active-duty service, he is not medically competent to provide an opinion in this regard. While the Veteran and his wife are competent to report on certain medical issues, they are not competent in this case to link his right knee condition to his active service to include an October 1988 MVA. An opinion of that nature requires medical expertise that is outside the realm of common knowledge of a layperson and the Veteran and his wife do not have relevant medical training, experience, or education. Kahana, 24 Vet. App. 428; Jandreau, 492 F.3d 1372. Therefore, they are not competent to provide an etiology opinion in this case. In this case, the Board finds the only competent nexus evidence weighs against the claim for service connection. The Board again notes that the Veteran submitted a claim to service connection for a right knee condition in September 1990. However, the Veteran did not report any current symptoms of a right knee condition to include pain at that time. Additionally, the September 1990 VA examiner declined to provide a diagnosis for the Veteran's right knee indicating there was no right knee condition at the time of the examination. Despite the Veteran submitting a claim for right knee service connection in September 1990, the first actual complaints and objective evidence of his right knee condition, to include reports of pain, since service did not occur until September 2011, indicating an onset of right knee pain 21 years after his separation from active-duty service. Additionally, in October 2012, the Veteran reported his onset of knee pain ten years prior which would still place his knee condition onset approximately 12 years after separation from service. Thus, the Board finds that presumptive service connection has not been established for his right knee condition. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Rather, the probative evidence shows that the Veteran's right knee condition had its onset years after service, and there is no competent evidence of record to link the Veteran's right knee condition with an incident of service. As there is not a balance of evidence both for and against the claim, the benefit of the doubt doctrine is not for application. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for the Veteran's right knee condition is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.