Citation Nr: 21077615 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 16-48 935 DATE: December 30, 2021 ORDER Entitlement to service connection for right-knee disorder is denied. Entitlement to service connection for left-knee disorder is denied. FINDINGS OF FACT 1. The objective medical evidence shows right-knee disorder was not incurred during active service, nor is it caused by an event, injury or illness occurring in active service. 2. The objective medical evidence shows left-knee disorder was not incurred during active service, nor is it caused by an event, injury or illness occurring in active service. 3. The objective medical evidence shows ostearthritis, as associated with right and left-knee disorders, did not manifest to a compensable degree within 1 year of separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for right-knee disorder have not been met, nor are they presumed to be. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for left-knee disorder have not been met, nor are they presumed to be. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1995 to April 1999. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2020). Establishing service connection generally requires: (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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). 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. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). 1. Entitlement to service connection for right-knee disorder. 2. Entitlement to service connection for left-knee disorder. The service treatment records (STRs) show on a November 1994 medical pre-screening form prior to enlistment, the Veteran denied painful or trick" joints or loss of movement in any joint, impaired use of arms, legs, hands, and feet and any injury including broken bones requiring treatment or surgery. In the November 1994 enlistment examination which followed, the examiner found normal lower extremities. The Veteran also denied past or current "trick" or locked knee, broken bones, arthritis, rheumatism or bursitis, bone, joint or other deformity, or lameness. A June 1997 in-service emergency care note shows the Veteran injured his left wrist (fracture), forearm (fracture), arm, and his lumbar spine when pitched forward over the handlebars while riding a bicycle (a "dirt bike") on rough, irregular terrain. However, the note recorded no report by the Veteran or makes any findings concerning his knees. Although suffering a cervical spine strain in May 1997 when involved in a vehicular accident while carrying out his duties, the subsequent June 1997 neurological evaluation showed his lower extremities exhibited full range of motion. A February 1998 treatment notes shows the Veteran presented with complaints of "pain on inside of ankle" after running and slipping in a pothole. The treatment provider found on examination swelling and talofibular tenderness, but made no knee findings. In a May 1998 Pre-deployment Health Assessment Questionnaire, the Veteran reported he was in "excellent" health, he had not sought medical treatment for an injury in the prior 90 days, he had not been taking medications in the prior 90 days, and he was not on light duty or on a profile. In a May 1998 Health Risk Assessment, the Veteran responded negatively to whether he recently had any medical problems or symptoms which bothered him. The STRs do not show reports, complaints, treatment, or diagnoses for a knee disorder or any related disorder, such as arthritis, nor do they provide a separation examination. The post-active-service record shows, while incarcerated in a correctional center facility of a state Department of Corrections, the Veteran reported on an October 2013 physical examination questionnaire that his arthritis or muscle, bone or joint disorders included only a shoulder dislocation and his lumbar injury, due to a motor vehicle accident. However, he reported nothing regarding knees. In a November 2018 VA social work note, the Veteran reported right-knee pain for which he takes meloxicam and, in a November 2018 mental health counseling note, the Veteran reported knee problems. In an April 2019 VA nursing admission assessment note consisting overall of mental health questions, the Veteran reported he has been suffering from right-knee "stabbing pain" for years. However, an April 2019 VA residential care note 2 days later shows the Veteran denied pain or acute medical concerns at that time and, after having a laboratory specimen drawn, he added he had jogged back from laboratory the Board it had been raining. During primary care treatment in August 2019, the Veteran reported chronic knee pain. In a visit to VA in February 2020, the Veteran reported peristent bilateral knee pain, right greater than left, difficulty bending and squatting, and he uses knee braces he purchased. The Veteran reported in a March 2020 VA primary care provider note bilateral knee pain, right greater than left, in which the Veteran further reported constant dull pain underneath knee cap and wearing braces helps. At a private chiropractic center in March 2020, a neurological examination showed both right and left-knee flexion and extension at 5/5 (full strength). In a July 2020 VA physical therapy consult, the Veteran reported right-greater-than-left infrapatellar pain which he attributed to kneeling and shooting his gun during service, causing functional limitations in kneeling, squatting, climbing and descending steps, getting in and out of an automobile, jogging, and leg extensions in the gym. The Veteran added that nonetheless he is able to do mountain biking, while wearing the right-knee brace. On examination, he exhibited nearly full range of motion. The treatment provider assessed the Veteran with a diagnosis of bilateral knee pain, requiring outpatient physical therapy for an antalgic gait and decreased range of motion, strength and function with pain. November 2020 knee MRIs at VA showed normal findings. A December 2020 VA physical therapy note shows the Veteran's reported that, although he has continued knee pain, nonetheless he has consistently been going to the gymnasium, doing Smith-machine squats with lifts of 135 pounds, then 225 pounds. In the period of August through December 2020, the Veteran continued to report right-knee pain, retropatellar, worse towards the end of the day, pain at the anterior knee over his patellar tendon, but no catching/locking. However, range-of-motion testing during therapy showed overall normal findings. As directed by the Board in its January 2020 Remand, the Veteran was afforded a November 2020 VA examination for knee and lower-leg conditions, in which the examiner diagnosed only right and left degenerative arthritis. He noted the Veteran's reported medical history of pain in the knees during active service due to kneeling down and shooting and performing basic training with a lot of stress on the knees. He further reported current symptoms as pain and popping in both knees. Extensive testing showed overall normal results, with some pain on movement, but no findings of function loss, other than the Veteran cannot squat. The examiner noted the Veteran's reported regular use of a brace. Available imaging studies did not document degenerative or traumatic arthritis. The examiner noted as another significant diagnostic test findings or results of mild osteophytosis with in the patellofemoral joint space. Included with the opinion questions for this examination was a note regarding potentially relevant evidence for the examiner to consider, which was based on the Veteran's reports, found in his May 2013 Statement in Support of Claim, stating right and left-knee disorders are due to the Veteran wearing a 10-pound gun belt for 12 to 13 hours a day during his service. The note added that the record also reflects that the Veteran fell off a dirt bike and landed on his back in June (May) 1997 during service. In separate opinions for right-knee disorder and left-knee disorder, the examiner opined each knee disorder was less likely than not (less than 50 percent probability) incurred in or caused by wearing a 10-pound gun belt for 12 to 13 hours a day and falling off a dirt bike and landing on his back in June (May) 1997 during service. He explained in his rationale, "There is no objective evidence in the records to support an injury to the knees due to active military duty service. The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The Board remanded again in June 2021, as the November 2020 opinions failed to address the Veteran's reports of long periods carrying heavy gear and the event of his bike accident. The Board noted that the November 2020 examiner based his opinion on the absence of objective evidence of injury during active duty service. However, "the mere absence of treatment records should not be the primary basis for a negative opinion. When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale (citing Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records)." Consequently, Board found the November 2020 examination and opinions inadequate. In remanding, the Board specifically directed the examiner to address the Veteran's contentions of knee pain due to kneeling with all of his equipment on during active duty service. A VA examination and opinions, negative for service connection, followed in July 2021. The examiner diagnosed bilateral degenerative knee arthritis. He noted the Veteran's reports carrying heavy equipment, being on his feet for 12 hours per day, running, and developing bilateral knee pain. The Veteran also reported he had a dirt bike accident, in which he fell off and landed on his back, but not on his knees, and he was not seen in service for a knee disorder. He further reported he has had pain to the joint line of both knees, bilateral knee pain upon sitting, standing and walking, he can sit for 5 minutes, stand for 5 minutes and walk for 1 mile before bilateral knee pain develops, causing him to stop and rest, he has daily 2-hour flare-ups, and he has had no surgeries. On examination, the examiner noted functional loss as reported above by the Veteran. Testing showed nearly normal results, with slight loss of range of motion in flexion. The rationales for the examiner's negative opinions for service connection were identical and first noted the Veteran's in-service fall from a bike and landing on his back. The rationales next stated there was no complaint or medical evidence of a knee injury, the Veteran states he was not seen in the service for a knee disorder, there is no medical evidence in the STRs to indicate chronic knee disorders or aggravation of the knees, there is no evidence in post-service medical records to indicate continuity of symptoms, and therefore there is no nexus between the symptoms in service and the current disorders. The Agency of Original Jurisdiction (AOJ) noted the opinions were inadequate, as this examiner, too, failed to address the Veteran's reports of earing heavy gear and long duty shifts with kneeling and running, ultimately resulting in bilateral knee pain. The AOJ requested an addendum opinion to address the Veteran's contentions. In August 2021, the examiner rendered a single addendum opinion, stating bilateral knee disorder was less likely than not (less than 50 percent probability) incurred in or caused by kneeling with all of his equipment on active duty. In his rationale, he explained that, although active-duty medical evidence is lacking and although persistent pain would likely have impelled the Veteran to seek an examination during active service, osteoarthritis is the most common form of arthritis, affecting millions of people worldwide and it occurs when the protective cartilage cushioning the ends of the bones wears down over time. He further noted the November 2020 bilateral-knee MRIs revealed no significant degenerative changes of the knees, thereby not indicating "the potential of increased weight-bearing upon knees resulting in the acceleration of degenerative changes in the weight bearing joints of the knees. This conclusion supports the evidence that carrying [a] heavy load of equipment and knee pain during bending while in service did not result in the veteran's current condition of both knees. Nor is there evidence in post-service medical records to indicate continuity of symptoms." Therefore, the examiner concluded there is no nexus between the active-service symptoms the current disorders. The Board has carefully considered the Veteran's May 2013 Statement in Support of Claim, the statement accompanying his January 2015 Notice of Disagreement and his statement accompanying the September 2016 Appeals Form 9, as well as the Veteran's reports to treatment providers and examiners, as they appear throughout the record. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and ordinarily there would be no reason to doubt his credibility. Nonetheless, his lay evidence in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The Veteran's statements and reports essentially contend he developed worsening chronic knee pain since the June 1997 bike accident, which in turn was aggravated by wearing a heavy gun belt and weaponry during 12 to 13-hour shifts per day, which included constant kneeling, walking and bending over. The Board understands the Veteran's reasoning in his statements and reports and, once again, the lack of in-service medical treatment records will not be determinative. See Dalton v. Nicholson, 21 Vet. App. at 39-40. However, in looking to the Veteran's contention that his knee injuries were severe in service, with ongoing pain after service and at present pronounced, unabated pain associated with the injuries, the Board cannot readily reconcile these past and current characterizations of knee injuries with the post-active-service findings in the November 2020 knee MRIs, as explained by the August 2021 VA examiner. He noted MRI imaging detected no significant degenerative changes of the knees, the very signs as would be most expected with circumstances of increased weight-bearing on the knees, in turn resulting in the acceleration of degenerative changes in the weight-bearing joints of the knees. In short, although carrying a heavy load of equipment during kneeling and bending, as reported, there is no corresponding visual evidence shown in MRI imaging indicating the resulting deterioration of the knee joints; rather, the August 2021 examiner concluded that common osteoarthritis, causing the loss of cartilage which cushions the ends of the bones, is most likely the result of the inexorable aging process. The Veteran has drawn his own conclusions as to the cause of worsening knee pain since active service, but without clinical findings of injuries of such prominence as to remain identifiable to trained medical and radiological professionals under current MRI imaging, the Board finds the Veteran's conclusions not to be credible as a basis of causation of the current disorders. Overall, the Board assigns greater probative weight to the opinion the August 2021 VA examiner, as he is a medical professional, he conducted an in-person examination of the Veteran in the earlier July 2021 examination, he thoroughly reviewed the Veteran's medical history, and, for the reasons discussed above, his opinion therefore is adequate for VA adjudication purposes. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). Finally, arthritis, as associated with right and left-knee disorders, may be eligible for presumptive service connection as a "chronic disease" under 38 C.F.R. § 3.309 (a). As shown above, the November 2020 and July 2021 VA examiners diagnosed degenerative arthritis of the knees. However, the STRs show no reports, treatment or diagnoses of arthritis, as associated with any knee disorder, during active service and the record gives no indication of the manifestation of arthritis within a year of separation from active service. Looking to the possibility of continuity of symptomatology establishing a nexus between any in-service event, injury or illness, to include right and left-knee disorders, and arthritis as a subsequent chronic disease, the Board notes that, putting aside the lack of medical evidence of any treatment for arthritis at that time, it is otherwise impossible to establish continuity of symptomatology by relating the Veteran's current arthritis to active-service events and duties, particularly a bike accident and the effects of wearing and carrying heavy gear and weapons, after the approximately 19 years since separation from active service before the earliest appearance in the record of "knee problems," reported by the Veteran in a November 2018 VA social work note. Consequently, the presumption of service connection for arthritis as a chronic disease, associated with right and left-knee disorders, is not available to the Veteran. As shown by the summary of the record above, there is no evidentiary basis on which to establish a causal relationship between the current right and left-knee disorders and an injury or the performance of duties during active service. In short, knee pain was not severe enough to impel the Veteran to seek treatment during active service, nor did he directly after active service or in the approximately 19 years following active service, until an actual report of knee problems by the Veteran in November 2018. Moreover, in the earlier October 2013 physical examination questionnaire during the Veteran's incarceration in a state correctional facility, he reported his arthritis or muscle, bone or joint disorders included only a shoulder dislocation and his lumbar injury, due to a motor vehicle accident. He stated nothing about his knees. As such, the medical evidence or record cannot establish a "nexus" between the current disabilities and an event or injury during active service. For the foregoing reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against the claim for service connection for right and left-knee disorders on any basis. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claims, the doctrine is not applicable and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Robert A. Elliott II Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.