Citation Nr: 21076492 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 15-44 901 DATE: December 23, 2021 ORDER Entitlement to service connection for a right knee disability is denied. REMANDED Entitlement to service connection for a skin condition of the hands and arms is remanded. FINDING OF FACT The Veteran's right knee arthritis did not have its onset in service; arthritis was not manifest within one year of service; and arthritis was not noted in service, with continuity of symptomatology since service. A right knee disability is not otherwise related to active duty. CONCLUSION OF LAW The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1977 to January 1985. In July 2021, the Board of Veterans' Appeals (Board) remanded the claims for additional development. The case has since been returned to the Board for appellate review. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service 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, 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). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Service connection for a right knee disability The Veteran contends that his right knee disability is related to his active duty service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has been diagnosed with mild right knee arthritis and has reported an in-service injury, the preponderance of the evidence weighs against finding that the Veteran's mild right knee arthritis began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records note a right knee injury in August 1980. He complained of right knee tenderness after being tackled while playing football. The Veteran was placed on profile and instructed not to run, jump, or perform deep knee bends. He was issued crutches. His January 1985 separation examination noted a normal musculoskeletal system and normal lower extremities. Also, his January 1985 Report of Medical History indicated that he did not have a trick or locked knee or bone and joint deformities. An April 2014 X-ray noted an acute contusion in the anterior aspect of the medial tibial plateau of the right knee. No internal derangement to the right knee joint was noted. In April 2014, the Veteran underwent a VA examination for knee and lower leg conditions. His claims file was reviewed. The Veteran was diagnosed with right knee arthralgia. The Veteran reported right knee pain onset during active service. Since then, he reported on and off right knee pain. He worked as a stocker at a grocery store and hurt his right knee stacking boxes. He reported flare-ups of additional pain when it was cold or raining. The examiner opined that that the Veteran's right knee condition was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there was no evidence of a significant right knee injury during active service and that the Veteran did not report a right knee problem for many years after separation from active service. As such, it is less likely that his current right knee arthralgia was caused by his active duty knee injury. During his January 2019 Board hearing, the Veteran stated that he had had on and off painful right knee motion since the in-service injury and that he did seek private medical treatment after service. He had treated his pain with injections and ibuprofen. A September 2019 VA treatment note indicated that the Veteran complained of bilateral knee pain. A December 2019 image study noted mild degenerative changes to the right knee joint space. In January 2020, the Veteran underwent a VA examination for knee and lower leg conditions. His claims file was reviewed. The Veteran was diagnosed with right knee degenerative arthritis. The Veteran reported right knee problems beginning during active service. He was put on profile because of his knee problems. He reported that his knee problems progressed since onset and had been manifested by throbbing pain. He treated his pain with ibuprofen. The VA examiner opined that the Veteran's right knee condition was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that while there was evidence of an in-service right knee injury, he had no knee problems for many years after service in 1985 and a probably acute knee contusion in 2014 on MRI. Further, the examiner noted that while there is 2019 x-ray evidence of right knee arthritis, there is no continuity of treatment right after service and therefore, no evidence of significant trauma to the right knee on active duty. In a July 2021 remand, the Board found that the January 2020 VA medical opinion is inadequate as the examiner did not address the Veteran's lay contentions of right knee pain since active service. In July 2021, a VA examiner opined that the Veteran's right knee disability was less likely than not incurred in or caused by the claimed in-service, event, or illness. The examiner explained that the Veteran was treated for a right knee injury while playing football during active service. He was treated for the condition, issued crutches, and placed on profile. There was no continuity of treatment after service. As such, there is no evidence of significant trauma to the right knee while on active service. Although the Veteran reported right knee pain since active service, he did not note a right knee problem for many years after separation from active service in 1985. He had a probable right knee contusion in 2014 and a 2019 image study documented right knee arthritis. The Board finds the July 2021 opinion to be highly probative. The examiner's opinion was factually accurate, fully articulated, and provided sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board finds that the Veteran's statements related to experiencing current symptoms of right knee pain are competent. However, the Board notes that the most recent VA examiner did not find these symptoms in the Veteran's case to be causally related to the Veteran's current condition. This issue is medically complex, as it requires knowledge of the risk factors for right knee arthritis, plus the understanding of complex medical systems and diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the July 2021 VA examiner's opinion. As noted above, arthritis is also a chronic disease under 38 C.F.R. § 3.309(a) and therefore service connection shall be granted if manifested to a compensable degree within one year of separation of service. The Veteran has stated that he has had right knee pain since the in-service injury. However, there are no records in service of any kind of symptoms of arthritis. Notably, his January 1985 separation examination noted a normal musculoskeletal system and normal lower extremities. Also, his January 1985 Report of Medical History indicated that he did not have a trick or locked knee or bone and joint deformities. There is also no competent and credible evidence linking the Veteran's reported ongoing right knee pain since service to a current diagnosis of right knee arthritis. Weighing the evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran's right knee arthritis manifested to a compensable degree within a year of his discharge from service. Thus, service connection cannot be established under 38 C.F.R. § 3.309(a). Additionally, there is no indication that a condition related to right knee arthritis was noted in service and the same evidence is against a finding that the Veteran showed continuous symptoms of right knee arthritis from the time of his discharge from service, and therefore service connection cannot be established by a showing of continuity of symptomatology. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1339. Overall, the Board finds that the claim must be denied. The preponderance of the evidence weighs against a finding that the Veteran's right knee disability was incurred in service. Accordingly, service connection for a right knee disability is not warranted. REASONS FOR REMAND 2. Service connection for a skin condition is remanded. Unfortunately, a remand is required again in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure the Veteran is given every possible consideration. The Board finds that the July 2021 VA medical opinion is inadequate as the examiner did not adequately address the Veteran's lay contentions of skin rashes since active service. The Board notes that lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran is competent to report that he had skin rashes during active service and symptoms continued since his active service. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See Baldwin v. West, 13 Vet. App. 1 (1999). Also, during the appeal period VA treatment records indicate he currently experiences periodic flare-ups of dermatitis. See September 2019 VA treatment records. Additional VA treatment records also indicate he has been prescribed medication including Triamcinolone Cream on multiple occasions to treat his current skin condition. See, e.g., January 2014 VA treatment record (including diagnostic impression of itching but no rash); May 2014 VA treatment record (diagnostic impression of skin rash); November 2014 VA treatment record (diagnostic impression of itching and concern of rash to his right upper arm and tops of bilateral feet); March 2016 VA treatment record (assessment of right forearm rash); October 2017 VA treatment record (itchy red rash with urticaria ongoing for years with diagnostic impression that it was likely stressed induced); June 2018, May 2019, June 2019 and September 2019 VA treatment records (noting "rash" as either an active medical problem or past medical history problem). The Board notes that the Veteran may be service-connected for a disability present at any time during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, the AOJ should obtain an additional medical opinion. The matters are REMANDED for the following action: 1. Obtain a VA medical addendum opinion by a suitably qualified clinician (who has not provided a previous opinion in this case, if feasible) to determine the nature and etiology of any current skin condition. Based on a review of the record including the Veteran's service treatment records, and post-service VA treatment records documenting treatment for ongoing skin rashes, the examiner is asked to respond to the following: (a.) Please note and identify all current skin-related diagnoses, to include intermittent conditions, that are documented in the record including treatment records dated during this appeal (2014 to present). The examiner should note that applicable legal criteria provide that the Veteran may be service-connected for a disability present at any time during the appeal period even if later resolved. (b.) For all identified conditions, state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. The examiner is directed to afford due consideration to the Veteran's competent lay statements with respect to symptomatology. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide the required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.