Citation Nr: 21076738 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 14-09 667 DATE: December 27, 2021 ORDER Service connection for a right knee disability, to include as secondary to service-connected left knee disability, is denied. FINDING OF FACT The Veteran's right knee disability was not shown as chronic in service, was not noted within one year from service discharge, is not secondary to service-connected left knee degenerative joint disease, and is not otherwise etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for a right knee disability 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 FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1989 until her honorable discharge in September 1994. Following her active-duty service, she served in the Colorado Army National Guard from May 1996 until her honorable discharge in May 1997. This appeal is being treated expeditiously on the Board of Veterans' Appeals (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from a March 2013 decision by a Regional Office of the United States Department of Veterans Affairs (VA). In April 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). Relevant to this appeal, in a July 2018 decision, the Board denied the Veteran's claim for service connection for a right knee disability. She subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court issued a Memorandum Decision in which it vacated the portion of the Board's July 2018 decision that denied her claim for service connection for a right knee disability. In July 2020, May 2021, and August 2021, the Board remanded the claim for service connection for a right knee disability to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain outstanding records and a VA examination addressing the etiology of the Veteran's right knee disability, which the VA Regional Office accomplished. The case now returns to the Board for adjudication. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. In addition, service connection may be established on a presumptive basis for certain "chronic diseases," to include arthritis, that manifest in service or within the presumptive period following separation from service (such that their existence in service is presumed). 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The term "chronic disease" refers to those diseases in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a). "For the showing of chronic disease in service[,] there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word 'Chronic.' " 38 C.F.R. § 3.303(b). Where a chronic disease is shown in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service," the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker, 708 F.3d at 1336. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. Where the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Id. Continuity of symptomatology is established if a claimant demonstrates that a condition was "noted" during service or during the presumptive period, there is evidence of post-service continuity of the same symptoms, and there is evidence of a nexus between the present disability and those symptoms. 38 C.F.R. § 3.303(b). A condition is "noted" where evidence is "indicative of but not dispositive of a chronic disease." Walker, 708 F.3d at 1336. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed. Id. at 1339. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310(a), (b). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability exists, (2) the veteran has a service-connected disability; and (3) the current disability was either (a) proximately due to or the result of; or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where aggravation is the relied upon theory, compensation may only be provided to that degree over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 448. Analysis Direct Service Connection First element: A current disability According the Veteran's medical records and examinations, during the pendency of his claim, she has been diagnosed with multiple right knee disabilities, to include right knee strain; arthritis, other than posttraumatic; and patellofemoral pain syndrome. The Board finds the medical evidence is credible and probative. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof During her April 2018 Board hearing, the Veteran testified that she believed her right knee pain had some relation to the rough terrain she walked in Southwest Asia, standing for long periods of time, getting on an off of military vehicles, and general "bumps" to her knees "here and there." She provided a written statement following her Board hearing stating the same information. The Board finds the Veteran's statements are very general and do not provide specific factual evidence of an actual injury, or onset of associated symptoms, to her right knee during military service. The Board finds that none of her statements or testimony link any asserted in-service events or injuries to her Colorado Army National Guard service. Nevertheless, the Board finds her testimony is credible, despite its generality, and has probative value that is not outweighed by any other evidence of record. Therefore, the Board finds the second element is satisfied; that is, the Veteran experienced in-service events that may reasonably be related to her claim for service connection for her right knee. Third element: A causal link Recently, in October 2021, the VA Regional Office obtained a VA-contracted medical opinion addressing the etiology of the Veteran's right knee disabilities. The examiner opined that the Veteran's right knee disabilities were less likely than not incurred in or caused by her active military service. To support her conclusion, the examiner first identified relevant facts related to the Veteran's right knee. The examiner discussed that the Veteran's 2012 X-rays showed patellofemoral degenerative disease with small osteophytes, and her osteoarthritis first appeared in 2012. The examiner stated that these right knee conditions do not resolve and can worsen with time. The examiner then discussed how the Veteran acknowledged that there was not one specific right knee injury or event that happened during her active during service, but rather there was a cumulation of conditioning and events that she believed may have caused her right knee condition, citing her April 2018 Board hearing testimony. Next, the examiner, after review of the Veteran's in-service medical records, found no evidence that the Veteran sustained a right knee injury in service, nor did she report symptoms of right knee pain, physical therapy, or other associated symptoms. At the time of her separation examination, she did not report right knee issues and there was no medical documentation of right knee issues. The examiner observed that the Veteran's post-service medical records did not indicate right knee issues until about 2012, when her degenerative right knee arthritis was first diagnosed. With these foregoing facts in mind, the examiner reasoned that because the Veteran's right knee osteoarthritis was diagnosed approximately 15 years following her separation from service, and that approximately 15 years passed until she sought medical treatment for the same, it made it highly unlikely that her right knee disabilities were due to her active service. The Board finds that the examiner did not rely solely on the lack of medical treatment when forming her conclusion. Instead, she relied on the lack of the Veteran's reports of right knee symptoms, in addition to a lack of treatment, until approximately 15 years after separation from all military service. The Board notes the Veteran reported experiencing an onset of right knee symptoms in 2010, at the earliest, but did not receive treatment at that time. June 2021 VA-Contracted Examination. This supports the October 2021 examiner's finding that the Veteran did not experience right knee symptoms until years her military service. In short, the examiner explained that the lack of evidence of right knee symptoms and treatment between 1997 and 2012 indicates that the Veteran's right knee disabilities are not related to her active military service as symptoms should be present during that period if they were due to her military service. The Board finds this opinion is the most credible and probative evidence of record addressing the etiology of the Veteran's right knee disabilities. The examiner relied on accurate facts, considered relevant lay and medical evidence of record, and provided a logical and well-reasoned medical opinion. The Veteran has not provided any medical opinions in support of her theory that her right knee disabilities are due to her military service. To the extent her lay statements can be reasonably construed as offering an etiologic opinion, the Board finds they have no credible or probative value because they are based on speculation and unaccompanied by any reasoning. There is no other competent, credible, and probative evidence of record addressing the etiology of the Veteran's right knee disabilities. Therefore, the Board finds the third element is not satisfied. Accordingly, service connection for a right knee disability is not warranted on a direct basis. Presumptive Service Connection for Chronic Diseases For the same reasons just discussed, the Veteran's right knee degenerative arthritis is not subject to presumptive service connection unde 38 C.F.R. § 3.309(a). Nowhere within the Veteran's in-service medical records, to include her separation examination, is there an indication of a diagnosis of right knee degenerative arthritis. Therefore, the is no documented chronic disease in service. Furthermore, there is no "notation" of right knee conditions within her in-service medical records. Accordingly, presumptive service connection is not warranted. Secondary Service Connection Within its August 2021 remand order, the Board found that the record raised a theory of secondary service connection as related to the Veteran's service-connected left knee disability. Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record). Thus, in October 2021, the VA Regional Office obtained a VA-contracted medical opinion addressing secondary service connection. First element: A current disability For the same reasons discussed under direct service connection, the Veteran has current right knee disabilities. Therefore, the first element is satisfied. Second element: A current service-connected disability As to the second element, a current service-connected disability, the Veteran is currently service connected for left knee degenerative joint disease. She has been service connected that disability since May 3, 2012. Therefore, the second element is satisfied. Third element: A causal link There are two theories for secondary service connection, causation and aggravation. Each theory is addressed below. Causation "Proximate cause" is defined as "[t]hat which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred." Black's Law Dictionary 1225 (6th ed. 1990); VAOPGCPREC 6-03 (adopting this definition). When there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. VAOPGCPREC 6-03. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. The October 2021 VA-contracted examiner opined that the Veteran's right knee disabilities were not caused by her service-connected left knee degenerative joint disease. The examiner reasoned that the Veteran first reported left knee issues during her military service in 1991, but she was not treated for right knee issues until 2012. The examiner noted that the Veteran did not report any right knee conditions until years after her service, rather than at the time of her left knee condition. The examiner conducted research, which she cited within her opinion, on the development of patellofemoral osteoarthritis. She concluded that there is no evidence for having an increased risk of patellofemoral osteoarthritis from an opposing knee's degenerative arthritis based on the development of the disease as explained in her opinion. Therefore, the Veteran's right knee disabilities were not caused by her left knee degenerative joint disease. The Board finds this opinion is the only credible and probative evidence of record addressing whether the Veteran's right knee disabilities were caused by her left knee degenerative joint disease. The examiner relied on accurate facts, considered relevant lay and medical evidence, and provided a logical and well-reasoned analysis in support of her conclusion. There is no competent, credible, or probative evidence of record contradicting the examiner's opinion. Accordingly, the Board finds that service connection on a secondary basis (causation) is not warranted. Aggravation "Aggravation" in the context of secondary service connection is demonstrated when there is "[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease." 38 C.F.R. § 3.310(b). The October 2021 VA-contracted examiner opined that the Veteran's right knee disabilities were not aggravated by her service-connected left knee degenerative joint disease. The examiner explained that she conducted research, which she cited, and found no medical studies that correlated to having patellofemoral pain/arthritis of one knee that is due to a contralateral knee condition. She opined that the Veteran's right patellofemoral osteoarthritis is likely caused by natural age-related degenerative changes, and is, therefore, not caused or aggravated by her left knee condition because each knee condition is independent of the other, though they may occur simultaneously. The Board finds this opinion is the only credible and probative evidence of record addressing whether the Veteran's right knee disabilities were aggravated by her left knee degenerative joint disease. The examiner relied on accurate facts, considered relevant lay and medical evidence, and provided a logical and well-reasoned analysis in support of her conclusion. There is no competent, credible, or probative evidence of record contradicting the examiner's opinion. Accordingly, the Board finds service connection on a secondary basis (aggravation) is not warranted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.