Citation Nr: 21076525 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-49 856 DATE: December 27, 2021 ORDER Entitlement to service connection for right knee degenerative arthritis, including as secondary to a service-connected left hip disability, is denied. Entitlement to service connection for left knee degenerative arthritis, including as secondary to a service-connected left hip disability, is denied. FINDINGS OF FACT 1. The probative evidence of record shows that the Veteran's right knee degenerative arthritis was not incurred in service, is not otherwise etiologically related to his military service, or secondary to a service-connected disability. 2. The probative evidence of record shows that the Veteran's left knee degenerative arthritis was not incurred in service, is not otherwise etiologically related to his military service, or secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for right knee degenerative arthritis have not been met. 38 U.S.C. §§ 1131, 1154(a), 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). 2. The criteria for establishing service connection for left knee degenerative arthritis have not been met. 38 U.S.C. §§ 1131, 1154(a), 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1975 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision. The present issues were previously before the Board. In an April 2019 decision, the Board remanded the claims for further development. The case has now been returned to the Board for further appellate action. Service Connection Right and Left Knee Disabilities The Veteran contends that his right and left knee degenerative arthritis disabilities (hereafter also referred to as "bilateral knee disability") are related to his active service. Specifically, the Veteran argues that he was injured in a car accident during service which resulted in his knee injuries. Alternatively, the Veteran maintains that his bilateral knee disabilities are secondary to his service-connected left hip disability. The Board notes that the evidence establishes that the Veteran has current diagnoses of degenerative arthritis of the left and right knees, thus establishing the first element of service connection of demonstrating a present disability. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303(a); see March 2017, VA Examination Report. The Veteran's service treatment records (STRs) confirm that he was involved in a car accident on October 30, 1976, thereby establishing the Veteran's in-service injury as related to consideration of direct service connection. The Board is mindful that the Veteran has asserted that he has had "these injuries since service." See May 2017, Notice of Disagreement (generally referring to all then-pending claims before the RO). To the extent that the Veteran is claiming his disabilities pursuant to presumptive service connection for a chronic condition, for the following reasons, the Board finds that the preponderance of the evidence is against a finding of chronicity in service or continuity of symptomatology since service. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Turning to the evidence of record, the Veteran's detailed STRs include a recitation of injuries sustained from the 1976 car accident in which the Veteran's vehicle struck a bridge. Of the injuries noted, including a left hip fracture, dislocation of the left great toe, and multiple abrasions and lacerations, none of the records indicate any treatment to the Veteran's knees or injuries thereto. The Veteran's ongoing STRs until his time of separation are silent for any knee complaints or treatment. Indeed, his separation examination from February 1981 was also silent for any noted knee injuries or diagnoses. Nevertheless, the absence of in-service records for a diagnosis is not dispositive of the issue. In considering the Veteran's assertion of ongoing injury to his knee since the date of the car accident, the Board finds that the Veteran's extensive medical records, ongoing VA examination reports since his separation, along with the most recent October 2019 VA examination report, all weigh heavily against the claim and provide more probative value than the Veteran's subjective assertions alone. In June 1982, the year following the Veteran's separation, a VA examination report is silent for any knee complaint or report of injury or pain. In looking to the Veteran's ongoing medical treatment since his discharge from service, the records date back to 1997. In February 1997, the Veteran was establishing care with a new VA clinic due to starting a new job as a truck driver. See February 27, 1997, VA Treatment Record. That record indicates that the Veteran reported lifting weights and exercising regularly up until two years prior to that visit. The Veteran reported having knee surgery due to his in-service car accident, however, X-rays of his knees were normal and did not demonstrate any post-surgical findings. During treatment the following month, March of 1997, it was noted that the Veteran was a poor historian and provided a conflicting and inaccurate medical history. Within the multiple decades' worth of medical reporting and treatment notes, the Veteran's knees are not documented as a complained of injury or condition until March 2017. Ongoing records and treatment for the Veteran's hip and back reflect a normal, steady, gait while ambulating (see September 1998, January 2000, August 2000, November 2000, July 2001, May 2009, August 2011, August 2012, May 2014, July 2016, VA Treatment Records), and are silent for reports of knee complaints. In addition, the Board finds that the October 2019 VA examiner's report is the most probative evidence of record, and heavily weighs against a finding of service connection for the following reasons. The opinion was based upon a physical examination of the Veteran, a review of the claims file, and supported by a reasoned medical rationale that is fully consistent with the record. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). The examiner opined that that Veteran's right and left knee disabilities, diagnosed as degenerative arthritis, are less likely than not incurred in or otherwise related to his active service. In so finding, the examiner explained that the injuries documented in service do not have a medically recognized pathology or medical link to the present disability, which presents with age-related etiology. Although the examiner emphasized the length of time before the Veteran sought treatment after service, this does not render the opinion inadequate. The lapse in time without medical complaints since military service can be used as evidence that weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for a condition can be considered as a factor in resolving a claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Here, the examiner fully considered the Veteran's lay statement regarding injury since service, but nevertheless explained why the in-service injury was less likely than not the cause of the present disability. As discussed further below, the Board finds that the Veteran's lay statements regarding onset and continuity of his current bilateral knee symptoms are less than credible. Implicit in the examiners' rationale was that if the Veteran's symptoms had been significant, he would have sought treatment earlier. Furthermore, the conclusions are consistent with the evidence of record, including service treatment records showing no reported bilateral knee symptoms or diagnoses at discharge and post-service treatment records showing an absence of any knee complaints for nearly 35 years after service, aside from an inaccurate reporting in 1997 of a prior knee surgery. In support of the Veteran's claim, a private treatment record from July 2018 was submitted. That record reflects that the Veteran was assessed by the private treatment provider that month, who provided an opinion that the Veteran was, "felt to have osteoarthritis of bilateral knees, low back pain with spondylosis, pain in his left hip as well as visual loss...in relationship to his military activities with significant trauma to multiple areas of involvement." See July 2018, Private Treatment Record. This record is of no probative value as it does not provide a rationale for the generalized opinion provided therein, nor does it reflect a review of the Veteran's documented medical history or discuss the detailed injuries alleged to be associated with the claimed disabilities. The Board has carefully considered the contentions of the Veteran that his claimed bilateral knee disabilities are due to his military service. See May 2017, Notice of Disagreement. To this end, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376; Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Jandreau, 492 F.3d at 1377, n. 4. See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010). However, as documented within the medical records, the Veteran is a poor historian and his assertion of ongoing knee complaints and injury since service is refuted by his voluminous medical records and documented reports. His reporting his further undermined by his inaccurate recitation of his medical history, noted by several medical professionals throughout his decades of treatment. Accordingly, given the probative evidence of record, the Board finds that presumptive service connection based upon a chronic disability, as well as service connection on a direct basis, is not warranted. The weight of the credible evidence of record is against a finding of chronicity of symptoms or a nexus between the claimed in-service injury and present disability. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As to secondary service connection, the Board finds that the October 2019 VA examination report is the most instructive in this regard as well. The examiner expressed that without evidence of ongoing, severe, gait impact from the service-connected left hip disability, there is no medical link between the bilateral knee degenerative arthritis diagnoses and the left hip disability, and therefore, opined that it is less likely than not that the claimed bilateral knee disabilities were not caused, or aggravated by, the left hip disability. In a very detailed and reasoned rationale, the examiner explained that the hip joint is a distinctly separate anatomical joint from the knee and medical peer-reviewed research and studies do not support a finding that a hip condition would cause or aggravate degenerative arthritis of the knee joint. The examiner attributed the Veteran's bilateral knee disability to his occupational history and age, noting that degenerative changes of any joint are universal over time, and especially naturally prevalent and occurring in men older than 45 years of age. The examiner also did not find that there was any aggravation of the bilateral knee disabilities due to the hip, as the condition presented with an age and occupation-related etiology. (Continued on the next page) In considering the cumulative evidence of record, and in weighing the positive and negative evidence; the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. The Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for right and left knee disabilities is not warranted, including as secondary to the Veteran's service-connected left hip disability. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.