Citation Nr: 21005983 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-25 134A DATE: February 3, 2021 ORDER Service connection for a right knee disability is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s right knee disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including his service-connected left knee disability. CONCLUSION OF LAW The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Army from October 1975 to July 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran presented sworn testimony at a hearing before the undersigned. This matter was previously remanded by the Board in an October 2018 decision for additional development. Service connection for a right knee disability The Veteran contends that his current right knee disability, which has been diagnosed as patellofemoral syndrome and arthritis, is related to his service-connected left knee disability. See February 2011 VA Knees Examination; June 2018 Board Hearing Transcript. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Also, service connection may also be found on a secondary basis where the following criteria is met: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected current disability is either proximately due to or as the result of a service connected disability; or, aggravated by a service connected disability. See 38 C.F.R. § 3.310; see also El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The United States Court of Appeals for the Federal Circuit held that “pain in the absence of a presently-diagnosed condition can cause functional impairment,” which may qualify as a “disability” for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that “a veteran could demonstrate service connection simply by asserting subjective pain” because, to establish that a disability is present, the veteran “will need to show that... pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it “to function under the ordinary conditions of daily life including employment.” Id. at 1363 (quoting 38 C.F.R. § 4.10). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. See Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In February 2011, the VA examiner opined that while the Veteran’s bilateral knee arthritis is likely related to age and senescence, as the disability is worse in the left knee, such may be related to an in-service left knee injury. In July 2013, a VA clinician opined that the Veteran’s current right knee arthritis is related to age and is less likely than not related to service. The clinician reasoned that there is no evidence of right knee complaints in service and no evidence of any chronic ongoing condition associated with military service. The clinician further stated that there is no evidence of aggravation by service or the left knee. See July 2013 VA Knees Examination. In June 2018, the Veteran testified that his right knee has worsened in concert with his left knee, which recently declined to the point of necessitating replacement. See June 2018 Board Hearing Transcript. In the November 2018 Board decision, the Board remanded the matter to afford the Veteran another VA examination to ascertain both whether the service-connected left knee disability causes and/or aggravates the right knee disability and to render an opinion regarding the etiology of all current right knee disorders, as neither the February 2011 and July 2013 VA examiners addressed the etiology of the Veteran’s patellofemoral syndrome. See November 2018 BVA Decision. Subsequently, the Veteran was provided a VA examination for his right knee disability in December 2019. The VA examination rendered a diagnosis of right knee osteoarthritis, which was noted in X-rays in 2011, and the examiner stated the condition is an age-related phenomenon which occurs as the cartilage in the knee becomes thinner over time; a left knee condition will not cause problems in the opposite knee unless that condition is severe enough to cause alteration in gait to the point of causing large shifts in the center of gravity during walking. The examiner held that this has not occurred. An antalgic gait is alone is not abnormal to the degree necessary to cause the changes that occurred. The VA examiner continued and opined that arthritis in one knee does not arthritis remotely in other joints. The examiner stated that patellofemoral syndrome is an overuse disorder and presents as anterior knee pain; if the Veteran’s right knee arthritis were caused by patellofemoral syndrome, it would be expected only the patellofemoral compartment to be affected. This is not the case here, as Veteran has additional changes in the median femoral knee compartment, which is separate from the patellofemoral syndrome in service. It is less likely than not that the arthritic changes currently seen were caused by patellofemoral syndrome. The Veteran additionally opined that given Veteran’s repeated normal gait description in the treatment records over time, and that one knee does not cause the pathology in the other unless the gait is severely affected, it is less likely than not that left knee impairment resulted in added stress on the right knee and altered gait or caused or aggravated the current right knee disability. In addition, the evidence on record does not show that Veteran’s right knee condition is related to service, occurred within one year after service or is related to his service-connected left knee condition. As such, the Board finds that service connection and secondary service connection is not warranted. The Board acknowledges that the Veteran reports that his right knee disability is due to his service-connected left knee condition. Additionally, the Veteran’s medical records shows treatment of his right knee osteoarthritis and patellofemoral syndrome. However, the medical evidence shows that his right knee disability did not have its onset in service and is not proximately due to his service-connected left knee disability. In reaching this determination, the Board observes that questions of whether his right knee disability is caused or aggravated by his service-connected left knee disability involves a complex medical issue to which the Veteran, as a lay person, is not competent to opine. The Veteran is competent to report his belief that a current right knee condition is due to service or to a service-connected disability, but this issue is medically complex, as it requires knowledge of medicine; hence, his statement does provide an indication of a nexus to service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011); 38 C.F.R. § 3.159(a)(1-2). In light of the foregoing, the Board finds the December 2019 VA examination and the absence of medical and lay evidence suggesting a right knee condition in service, or manifestation of symptoms within a year from discharge, or any relation to his service-connected left knee condition, to be persuasive and of the greatest probative value. Therefore, service connection for a right knee disability must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.