Citation Nr: 21076341 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-40 420 DATE: December 23, 2021 ORDER 1. Service connection for a right knee disability is denied. 2. Service connection for a left knee disability, to include as secondary to a right knee disability, is denied. FINDINGS OF FACT 1. The Veteran's right knee disability did not manifest during active service or within one year of separation and was not caused by any aspect of service; right knee disability is not otherwise attributable to service. 2. The Veteran does not have a current left knee disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service in the United States Army from March 1984 to March 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Threshold Consideration At the outset, the Board observes that the service entrance examination and separation examination have not been associated with the claims file. A review of the evidence of record discloses that the RO requested a "complete" copy of the Veteran's service treatment records (STRs) and an "entire" copy of the Veteran's military personnel files in September 2015. See September 2015 VA 21-3101. Further, the evidence of record shows that the National Archives did produce these records. See October 2015 Military Personnel Record (Response to Request for Information), p. 29. The Board notes that the separation examination is missing because the Veteran declined it in May 1988. See October 2015 STR-Medical, p. 1. In situations where there are missing STRs, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board must note that the O'Hare precedent does not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). Case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs alone are indeed unfortunate, but their absence does not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by showing he has the claimed disability. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401 (1991) and O'Hare, 1 Vet. App. at 367). Service Connection The Veteran contends that his right knee disability was incurred in, aggravated by, or otherwise attributable to, active-duty service. Furthermore, he contends that his left knee disability was proximately caused by, or aggravated by, his right knee disability. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). In the absence of proof of a present disability there can be no valid claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). 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); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competent lay evidence may also include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Some chronic diseases, to include arthritis, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.§§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). All have a presumptive period of one year following separation from service. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310 (a)-(b). Right knee disability A review of the Veteran's service treatment records (STRs) discloses that the Veteran sustained a right knee injury when he jumped out of a truck in April 1986, resulting in an acute right knee strain. Upon X-ray imaging to ascertain the extent of his injury, a clinician reported that there was minimal prepatellar edema. Other STRs do not evince complaints of, treatment for, or a diagnosis of, a right knee disability. X-ray imaging in October 2015 revealed mild medial and patellofemoral compartment degenerative changes in his right knee. (Imaging was ordered due to the Veteran's complaints of knee instability and pain.) The interpreting clinician noted that the results were not disproportionate to his age. In December 2015, the Veteran expressed that the instability of his right knee had worsened. As such, the clinician ordered a magnetic resonance imaging (MRI) for him. The clinician rendered an assessment of tricompartmental chondral degenerative changes, most prominent at the patellofemoral compartment. In his August 2016 notice of disagreement (NOD), the Veteran wrote that he and his representative were not properly notified of VA's denial of the two claims. Additionally, so they advanced, VA never administered an examination for his right and left knee disabilities. Pursuant to the Veteran's NOD, the Veteran reported for a VA knee and lower leg examination in July 2017. During his examination, the Veteran reported that he worked in various positions after he left the military. His post-service employment included construction and factory jobs. Also, he worked was a prison guard, railroad conductor, truck driver and equipment operator for sewage maintenance since 2003, which required him to climb up and down the ladder into the ditches for 6-to-7 hours a day. Informatively, the clinician noted that the Veteran conveyed that his left knee disability was a result of him bearing weight on it because his right knee was unstable. The clinician reviewed the claims file; considered the Veteran's post-service account of his medical history, employment history, and lay complaints; and conducted an appropriate evaluation. The Veteran, according to the clinician, has arthritis in his right knee and does not have arthritis in his left knee. The clinician pointed out that there was only one, acute right knee pain episode in service and the Veteran did not seek treatment for his right knee disability until 27 years after separation Since there was such a long, intervening gap between separation and the initial post-service treatment, the clinician concluded that the Veteran's right knee disability was unrelated to service. The clinician attributed the Veteran's right knee disability to his obesity; his body mass index (BMI) was 40.7 (morbidly obese) in October 2015 and had been above 40.0 to the present time (with the highest of 44.35 in October 2016). In his August 2017 Substantive Appeal (VA Form 9), the Veteran stated that he did not seek medical treatment for his right knee disability for many years after leaving service because his doctor advised him early on that his right knee injury would take time to recover. (When he was young, so he elaborated, he did not realize the lasting effect his injury would have on his post-service career choices.) The Veteran attributed the degenerative changes (noted upon October 2015 imaging) to his right knee injury (when he fell from the truck in April 1986). He disagreed with the July 2017 VA clinician, in that he did not believe that his morbid obesity contributed to his right knee disability (because his condition had existed prior to the increased weight and age). Moreover, the Veteran expressed a belief that his weight gain could be secondary to the initial right knee injury in that it prevented him from exercising throughout the years. Given that the Veteran's July 2017 VA examination shows a diagnosis of right knee disability, the required element of a current disability has met. Saunders, 886 F. 3d 1356. However, in general, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. See id. When considering the pertinent evidence in light of the above-noted legal authority, the Board finds that service connection for the Veteran's right knee disability is not warranted. In reaching this conclusion, the Board has carefully considered the Veteran's lay assertions. The Board acknowledges that, as a lay witness, the Veteran is competent to report his medical history and symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469-79 (1994). He is competent to report that he had discernable knee symptoms in service. However, since he is not a medical professional, he is not competent to opine on whether his right knee disability is related to service. Consequently, his belief that his fall from the truck in service caused his right knee disability and obesity could be secondary to the initial injury (since it prevented him from exercising) does not constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Though the Veteran's lay assertions of his right knee symptoms in service warrant some probative weight, the Board assigns far more probative weight to contemporaneous service records. As noted above, the April 1986 STR documented one, acute in-service right knee pain episode. The Board finds that the overall evidence shows that the right knee injury the Veteran sustained in service was acute and resolved. There is no service separation examination in the claims file, as he had declined it. If the right knee condition had been bothersome at the time of separation, one might assume, at the minimum, that the Veteran would have reported it to military doctors. Rather, he chose to forgo the separation examination. (The Board acknowledges that the reason for not seeking treatment shortly after service was because a doctor told him that it would take time to recover. Nevertheless, other than the Veteran's contentions, there is nothing in the claims file to corroborate the lay account that a military doctor articulate that the Veteran's right knee condition would improve with time. (Since the Board does not have a record of the doctor making such a statement, the Board would have to assume that the Veteran waited for 27 years to seek his first post-service treatment.) Moreover, the July 2017 VA clinician noted that the Veteran's right knee disability resulted from obesity, specifically pointing out that he was morbidly obese in October 2015 with concurrent right knee instability. X-ray imaging at that time showed that the Veteran had degenerative changes in his right knee. This clinician further stated that October 2015, which was 27 years after he left the military, was the first time that the Veteran sought treatment for his right knee after separation. As to service connection on a presumptive basis, the competent medical evidence of record fails to show that the Veteran was diagnosed with right knee arthritis to a compensable degree within one year of separation from service. See 38 U.S.C.§§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). Hence, these provisions are not for application in this case. The preponderance of the evidence is against the Veteran's claim and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Left knee disability The Veteran's STRs do not include complaints of, treatment for, or any diagnostic assessment of a left knee disability During the July 2017 VA knee and lower leg examination, the clinician did not diagnose him with a left knee disability. The Veteran reported that "the only thing with the left knee is that [he] favors it, maybe because of the [instability of the] right knee." In the absence of proof of a present disability, there can be no valid claim. Romanowsky, 26 Vet. App. 289. Other than the Veteran's bald contention that he has a current left knee disability, there is no competent, credible, or probative evidence of record to support the "presence" of such a diagnosed current disability. (As discussed above, the medical evidence of record does not provide a finding of a present left knee disability.) As such, the possibility of establishing service connection on any basis whatsoever is foreclosed. Id. The Board, however, will briefly address entitlement to service connection on a secondary basis because the Veteran specifically contends that his left knee disability is secondary to his right knee disability. Even if he were to (hypothetically) have a left knee disability, his secondary service connection theory of entitlement lacks legal merit because the claim of service connection for his right knee disability was denied on the February 2016 rating decision and on appeal to the Board (hereinabove). As such, entitlement to service connection on a secondary basis cannot be established as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) The preponderance of the evidence is against the Veteran's this claim and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. B. J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chu, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED