Citation Nr: 21005416 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-00 239 DATE: February 1, 2021 ORDER Entitlement to service connection for a right knee disability, to include as secondary to a service-connected disability, is denied. FINDINGS OF FACT 1. The Veteran’s service treatment records (STRs) contain mention of complaints referable to a knee, but apparently regarding his left knee rather than right. And, even on the chance they also concerned his right knee now at issue, his complaints were not suggestive of chronic (i.e., permanent) disability as relating specifically to this knee. 2. Moreover, the most competent and credible evidence is against finding that he has a current right knee disability that was caused or aggravated by his service or a service-connected disability, including especially his left knee disability.   CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a right knee disability, either on the premise it is directly related to the Veteran's service, presumptively related (since involving arthritis), or secondarily related by way of a service-connected disability, including especially his left knee disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1964 to September 1986. The Veteran requested a hearing before a Veterans Law Judge of the Board. However, in January 2017, he asked for adjudication of his claim without a hearing, so he withdrew his hearing request. 38 C.F.R. § 20.704(e). This claim was previously before the Board in November 2018 but was remanded for further development and consideration – including especially to obtain all outstanding treatment records relevant to this claim and for a medical nexus opinion concerning the origins the Veteran’s right knee disability in terms of whether directly related to an injury, event or disease during his service or, alternatively, secondary to (caused or aggravated by) a service-connected disability, especially his left knee disability. There has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).   Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation (“nexus”) between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Also, pursuant to 38 C.F.R. § 3.303(b), if a “chronic” disease per se according to 38 C.F.R. § 3.309(a), so including arthritis, a Veteran may establish the second and third elements of service connection by demonstrating continuity of symptomatology since service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a Veteran 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 v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). In addition, according to 38 C.F.R. § 3.310, service connection may be granted as well on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability – although in the latter instance compensation is limited to the extent of disability specifically owing to the aggravation. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran has a service-connected left knee disability, degenerative joint disease, so involving arthritis. It also previously was rated more generally as impairment of this knee, so the Diagnostic Code (DC) is 5003-5257. DC 5003 concerns arthritis, whereas DC 5257 is for “other” knee impairment – including owing to recurrent subluxation or lateral instability. He contends that he has a right knee disability secondary to his left knee disability because he puts more weight and pressure on his right knee to try and guard his left knee. In other words, he says he must overcompensate because of his left knee. See August 2006 orthopedic consult.   A VA record (examination worksheet) posits the Veteran was treated for right knee complaints in service, in January and November 1969; however, based on his STRs, as a whole, those treatments/complaints were with regard to his left knee. Notably, the January 1969 complaints note that he “still” had knee pain and these records are after the 1967 and 1968 STRs noting left knee pain and left knee arthrotomy (see, e.g. August 1968 STR). A December 1969 STR shows he had left knee fluid and was 18 months post right arthrotomy for osteochondritis desiccans with persistent pain and swelling of the right knee. But the Board finds that recording in error because his prior surgery, instead, was on his left knee (i.e., 18 months prior to December 1969 would be mid-1968; the STRs reflect left femur osteochondritis dissecans in November 1967, with arthrotomy of the left knee with excision of osteochondrotic defect in April 1968; the August 1986 Report of Medical History also notes operation on the left knee in 1968 and 1985.) The Veteran has not alleged that he had surgery on his right knee in service. In addition, an April 2011 VA examination report shows he denied injury or trauma to his right knee in service. In sum, any reference in his STRs to his right knee are erroneous since, in actuality, it was his left knee that was symptomatic and required surgery. The Veteran separated from service in September 1986. At time of separation, he filed a VA claim for service connection for his consequent left knee disability; he did not also file a claim for service connection for any right knee disability. However, a December 1986 VA examination report reflects that he complained that his “right knee gives out”; the remainder of the examination report is unremarkable for any right knee impairment. Indeed, there are no clinical records for the next two decades noting any right knee complaints or symptoms referable to this other knee. An August 2006 VA clinical record notes bilateral knee pain that the Veteran believed was from bearing additional stress on his right side trying to protect his left knee. X-rays revealed degenerative change in his right knee. That was some 20 years after his separation from service. That long a lapse of time between his separation from service and the earliest documentation of the disability now being claimed is a factor for consideration in deciding whether the disability dates back to his service or is otherwise related or attributable to his service and tends to refute this notion. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). If he had been experiencing chronic or recurring pain in his right knee or other relevant symptoms since his service, it stands to reason that he would have reported it and that there would be clinical records documenting his complaints and/or he would have sooner filed for service connection for right knee disability – such as when filing his claim for service connection for his left knee disability or sometime between 1986 and 2006. That said, merely because a Veteran files a claim for a specific disability does not necessarily mean that he should also file for any other disability incurred in service or secondary to a service-connected disability. However, here, as both conditions involved the knees, and as he contends they are interrelated, it seems reasonable that, if he had right knee complaints since 1986 or earlier, he also would have filed a claim for service connection for this other knee prior to two decades later. In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of a claimed disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records. In other words, the mere absence of evidence does not necessarily equate to unfavorable evidence. There are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). A December 2007 OhioHealth Grant Medical Center record shows a diagnosis of osteoarthritis of the right knee. It was noted the Veteran had failed conservative treatment for it. He has not provided earlier records supporting a lengthy history (i.e., two decades) of complaints. An April 2011 VA examination report reflects that the Veteran stated that his right knee went out on him in 2007. He also stated that he earlier had injured this knee playing basketball in 1988 and required orthoscopic surgery. Even assuming true, both of those events were after his military service ended in 1986 and even after the one-year presumptive period following conclusion of his service, which ended in 1987, allowing for initial manifestation of arthritis to, in turn, warrant presuming it was incurred during his service. Moreover, that examiner opined that it is less likely than not the Veteran’s right knee disability is due to his service because his STRs are unremarkable concerning this knee and he developed complaints post-service while playing basketball. This examiner found no record indicating a relationship between the Veteran’s service and his then current right knee disability. As already alluded to, the Board since remanded this claim in November 2018 for still more medical comment concerning the origins of the Veteran’s right knee disability, but not just in terms of whether directly related to an injury, event or disease during his service but also, alternatively, whether secondary to (meaning caused or aggravated by) a service-connected disability, especially his left knee disability The January 2020 Disability Benefits Questionnaire (DBQ) since completed contains the opinion of the examiner that it is less likely than not the Veteran’s right knee disability is causally related to, or aggravated by, his left knee disability. This additional examiner pointed out the Veteran developed pain in his right knee after a 1988 basketball incident, and that acceleration of joint degeneration occurs from increased biomechanics stressors and disrupted normal anatomic surfaces during surgery. Thus, according to this examiner, the Veteran’s current right knee condition is due to his 1988 basketball injury and the subsequent surgery. This examiner also explained the Veteran had severe osteoarthritis in both knees in 2006, thus indicating the right knee disability was not aggravated by the left knee disability. Essentially, because both knees had severe osteoarthritis, it can be surmised there is no diagnostic evidence he had used the right knee more than his left knee and caused degeneration. Although the Veteran has maintained that he has put more weight on his left knee, his clinical records do not bear this out since they show a normal gait in August 2014, October 2014, September 2015, May 2016, and June 2016. Ultimately, there is no probative (i.e., competent and credible) evidence that the Veteran has a right knee disability secondary to his left knee disability or owing to any other service-connected disability. Post service, he has been shown to be obese, has obviously aged, and was employed in law enforcement for 6.5 years after separating from the military. Although he has alleged that his right knee disability is due to overcompensating for his left knee disability, this determination is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board, consequently, gives the VA compensation examiners’ medical opinions more probative weight. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). There also is no competent and credible indication the Veteran’s complaint of giving way of his right knee in 1986 was an early symptom or manifestation of a current disability involving this knee or that he had giving way since 1986 until his post-service surgery in December 2007, especially considering the documented intervening (“intercurrent”) injury to this knee. Lastly, the Board has considered that, on his October 2016 VA Form 9, the Veteran stated that his right knee “started bothering [him] following the left knee surgery.” However, his STRs do not support this allegation; there are no clinical records in the two decades after his service noting complaints referable to his right knee continuously since his service (i.e., continuity of symptomatology), and there is no probative opinion relating his right knee symptoms to his left knee disability. The Board finds that, if he had symptoms of arthritis in service (and considering that his first left knee surgery was in 1968), there would have been evidence of this in the next four decades noting chronic complaints over an extended time. Thus, his statement concerning this lacks credibility since there was not. Given the unfavorable medical nexus opinions in 2011 and 2020, the absence of any equally probative contrary medical opinions with adequate rationale, and the lack of treatment records noting chronic complaints, the preponderance of the evidence is against this claim for service connection for right knee disability. Moreover. as the preponderance of the evidence is against this claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.