Citation Nr: A21019337 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 200415-82407 DATE: December 6, 2021 ORDER Entitlement to service connection for right knee osteoarthritis, chronic disruption of the cruciate ligament (right knee disorder) is denied. FINDING OF FACT The Veteran's right knee disorder was not present in service or manifest to a compensable degree within one year of service discharge and is not related to any incident of service. CONCLUSION OF LAW The criteria for service connection for a right knee disorder are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1967 to September 1987. In September 2019, the Agency of Original Jurisdiction (AOJ) denied service connection for a right knee condition. The Veteran then submitted a VA Form 20-0996 requesting a Higher-Level Review (HLR) of the rating decision. In January 2020, a VA reviewer identified a duty-to-assist error as the Veteran had not been afforded the opportunity to reschedule a VA examination and referred the claim for a medical opinion. A VA medical opinion was obtained the following month. In April 2020, the AOJ issued a HLR rating decision that confirmed and continued the denial for the right knee. The Veteran timely appealed this decision directly to the Board and requested a hearing with a Veterans Law Judge. See VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD). Under this option, the Board may only consider the evidence of record at the time of the September 2019, rating decision, as well as any evidence submitted at the hearing or within 90 days thereof. 38 C.F.R. § 20.302. A hearing was provided in May 2021 and a copy of the transcript is of record. The Veteran submitted evidence within 90 days of the hearing, but it is not relevant to the matter on appeal. Service Connection The Veteran seeks service connection for a right knee disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as "chronic" by VA. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). At his May 2021 hearing, the Veteran testified that in the fall of 1969 he injured his right knee when he slid into a ditch during "survival school" at Fairchild Air Force Base. He was able to complete the course but had occasional knee pain since then, particularly with running and would sometimes go on offline status from flying duties until he recovered. The Veteran also testified that after retiring from service he was able to keep running but continued to experience periodic knee flare-ups which later worsened. He underwent knee surgery in 1995 and at that point was told he had osteoarthritis, a torn meniscus, and a deficient anterior cruciate ligament (ACL). He also testified that he has since been diagnosed with rheumatoid arthritis. Service treatment records show that in March 1968, the Veteran was treated for complaints of vague right knee pain. Physical examination was negative, and the complaints did not interfere with flying. These records also confirm that in November 1969, he was treated for right knee pain diagnosed as tendonitis. There are no records of additional follow-up evaluations or clinical findings related to the right knee until March 1977, 8 years later. At that time the Veteran was to return for evaluation of his right knee but there were no specific findings reported or evidence of additional follow-up evaluation which would provide a basis for a right knee diagnosis or any chronic disabling residuals related to the 1969 injury. The Board notes that the remaining service treatment records show the Veteran continued to serve another 10 years until his separation in 1987 with no additional right knee complaints. They also show that as a pilot, he underwent numerous evaluations by flight surgeons to qualify for flying duties, to include annual flight examinations and evaluations to return to flight status following temporary illnesses, such as upper respiratory infections and barosinusitis, without any notation indicating medical findings or symptoms related to a right knee condition. See AF Form 1042s (Medical Recommendation for Flying or Special Operational Duty). In addition, multiple reports of medical examination, consistently show that clinical evaluation of the knees was normal, and the Veteran denied any significant medical or interval history since the previous physical examination. Although the Veteran has asserted that his right knee problems have continued since service, post-service treatment records do not show any pertinent symptoms in the immediate years after separation in 1987. Instead, the earliest post service evidence (documentation) of pertinent symptoms or complaints is found in private treatment records in 2018, 30 years after later. See medical records from J.A. Evans. M.D. and Nix Health Care System from April 2018 to October 2018. Radiological findings at that time showed right knee, osteoarthritis, a chronically deficient ACL, and a lateral meniscus tear. These records also document an April 2018 new patient visit, where the Veteran reported that he first injured his right knee while in college in 1963 prior to service and that he later injured his right knee during service, but no specific diagnosis was made at that time. After service the Veteran underwent an arthroscopic right knee procedure in 1994 and was told that he had meniscal pathology and a deficient ACL ligament. Most recently in December 2017, the Veteran had a twisting injury to the right knee. The private physician concluded that the Veteran's series of right knee problems were all likely because of the initial ACL injury that developed into posttraumatic arthritis. However, in June 2018, the physician noted that the Veteran's chronically deficient ACL and meniscal findings were probably related to either the underlying degenerative process or the 1994 surgery. While not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (finding lengthy period of absence of medical complaints for condition can be considered as a factor in resolving 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). In this case the record also references right knee surgery in 1994, but even this date is years after service discharge in 1987 and the Veteran has not presented any factors that would explain the gap in time. Additionally, because, arthritis confirmed by X-ray, was not demonstrated until well after one year following his separation from service, the Veteran does not satisfy the criteria for service connection on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. Also of record is a lay statement from the Veteran's daughter regarding her recollection of her father's right knee problems. She stated that her father underwent right knee surgery in 1995 and that leading up to the surgery he experienced knee pain, swelling, and redness. The orthopedic surgeon at that time determined that the Veteran sustained an ACL injury during service in 1969. See Lay Statement from K.R. Duke, dated July 18, 2019. The AOJ then obtained a VA medical opinion in February 2020 addressing the etiology of the Veteran's right knee disorders. The examiner reviewed the Veteran's history including the in-service episodes of right knee pain in March 1968 and November 1969, referenced the lay statement regarding the Veteran's alleged in-service ACL injury, and performed a review of medical literature. The examiner then concluded that the Veteran's diagnosed right knee osteoarthritis with chronic disruption of the cruciate ligament was less likely than not related to service. The examiner explained that an ACL injury is a tear or sprain of one of the major ligaments in the knee and that individuals who experience an ACL injury are at higher risk of developing osteoarthritis in the knee. However, in the Veteran's case he was diagnosed with ACL deficiency. The examiner also noted that while serving in the military, the Veteran underwent approximately 18 physical examinations between 1966 and 1986, all of which were silent for right knee complaints or documentation for a right knee condition and/or injury. Moreover, the diagnosis for the Veteran's right knee complaint in 1969 was tendonitis. The examiner went on to conclude that the Veteran's arthritis was most likely age-related osteoarthrosis, the most common type of arthritis also known wear-and-tear arthritis. While it can occur in young people, the chance of developing osteoarthritis rises after age 45. However, there are several other factors that increase the risk of developing significant arthritis at an earlier age such as weight, heredity, gender, repetitive stress injuries, athletics, and illnesses such as the Veteran's rheumatoid arthritis. Based on the foregoing, there is no probative and competent medical evidence of record linking the Veteran's diagnosed right knee disorders to military service. The VA opinion is both probative and persuasive medical evidence as it is based upon a review of the file, including the Veteran's documented history of in-service knee injury. The examiner provided a clear and well-reasoned medical based upon the documented clinical and service history. The VA examiner considered the Veteran's relevant history as contained in medical records from service onward and discussed the Veteran's current symptoms in the context of that history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The claims file contains no competent medical evidence refuting it. The Board acknowledges that the private physician noted several possible etiologies as the source of the Veteran's currently diagnosed right knee disorders, however none of them actually attribute the arthritis and chronic ACL deficiency to military service. To the extent the Veteran argues that his current right knee arthritis represents a continuation of the in-service injuries, such an assertion treads into the realm of medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). In any event, the probative value of his belief is outweighed by that of the VA medical examiner, who clearly does have the education, training, and experience to address etiology. The Board has also considered the supportive statement from the Veteran's daughter. However, a second-hand account of conversations with a physician, dating over 20 years ago, is considered too unreliable to constitute competent medical evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (finding that the connection between what a physician said and the layman's account of what he purportedly said, filtered through a layman's sensibilities, is too attenuated and inherently unreliable to constitute medical evidence). Therefore, her statement does not constitute competent evidence in support of the claim. Accordingly, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Bryant 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.