Citation Nr: 21006568 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 181206-1181 DATE: February 4, 2021 ORDER Entitlement to service connection for right knee disability is denied. Entitlement to service connection for left knee disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran’s current right knee disability had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service. 2. The preponderance of the evidence of record is against a finding that the Veteran’s current left knee disability had its onset during any period of active duty service; manifested to a compensable degree within the applicable presumptive period; had continuity of symptomatology; or is otherwise etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right knee disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for left knee disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army Reserves from November 1976 to December 1976, and from May 1980 to September 1980; as well as, served on active duty in the Army from May 1981 to May 1985. This case comes before the Board of Veterans’ Appeals (Board) on appeal from the October 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges that on August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 155-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Board is honoring the Veteran’s choice to participate in VA’s test program RAMP, the Rapid Appeals Modernization Program. In May 2018, the Veteran selected the Supplemental Claim lane when he submitted the RAMP election form. Accordingly, the October 2018 RAMP rating decision considered the evidence of record and any additional new and relevant evidence submitted within 30 days from the date VA received the RAMP election form. The Veteran timely appeals this RAMP rating decision directly to the Board and requested the evidence submission lane. The Board notes that under evidence submission, the Veteran can submit additional evidence in support of his appeal within the next 90 days from the date of receipt of the Board Appeal (VA Form 10182). Therefore, any additional evidence submitted after this time will not be considered in this decision. In December 2019, the Board of Veterans’ Appeals (Board) issued a decision denying the claims for entitlement to service connection for bilateral knee disability. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in a September 2020 Joint Motion for Partial Remand (JMPR), which remanded the December 2019 Board decision for re-adjudication consistent with its decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence showing (1) current disability; (2) in-service incurrence in or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Certain “chronic diseases” may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service; however, if the evidence of the record is insufficient to establish a disease was chronic in service, and/or manifested within the specified time period, then there must be a continuity of disease symptoms shown after discharge in order to warrant service connection. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 1. Entitlement to service connection for right knee disability. 2. Entitlement to service connection for left knee disability. The Veteran contends that his current bilateral knee disability is directly related to his active duty service, specifically from an in-service injury caused by falling off a ladder. As an initial matter, the Board notes that a review of the record reflects the Veteran was given a diagnosis of osteoarthritis of the left lower leg in June 2009. See June 2009 Private treatment record. As osteoarthritis is considered to be a “chronic disease” under 38 C.F.R. § 3.309(a), the Board finds that consideration of the Veteran’s left knee disability claim for presumptive service connection is warranted. 38 C.F.R. §§ 3.307, 3.309. After review of the record, the Board finds that service connection is not warranted for the Veteran’s left leg osteoarthritis as a chronic disease under the provisions of 38 C.F.R. §§ 3.307 and 3.309, as the medical evidence establishes that this condition was first diagnosed in June 2009, which is more than 24 years after the Veteran’s separation from active duty service. As noted above and in this case, chronic diseases, such as osteoarthritis, are only subject to presumptive service connection if manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Additionally, the record does not reflect that a diagnosis of a chronic left knee condition was noted during service; nor does the record reflect, or the Veteran otherwise contend, that he had a continued condition of left leg/knee arthritis since active duty service [in fact, the record shows the Veteran thought his knees were okay after his service until he noticed left knee swelling after playing tennis in September 2009. See C&P Exam, June 2013]. Therefore, as the Veteran’s left leg osteoarthritis was not incurred until decades after service, with no probative evidence of continuity of symptomatology, presumptive service connection for this disability as a chronic disease is not warranted. Nevertheless, although service connection on a presumptive basis is not applicable, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, the evidence of record does not support a conclusion that the Veteran’s left and/or right knee disability was etiologically related to his active duty service. Service treatment records (STRs) reflect that the Veteran had a bruised right knee, diagnosed as a right knee sprain, caused by a fall through a ladder in September 1981; to which he had follow-up treatment for right knee pain in October 1981. In May 1982, the Veteran complained of and received two treatments for right knee pain, with diagnoses of synovial membrane irritation and possible fluid under the knee given. In November 1983, the Veteran complained of having a sharp stabbing pain in his left knee while trying to walk; and in July 1984, the Veteran received treatment for pain in his left knee due to a fall that occurred a month ago, diagnosed as left knee pain. See STR – Medical. Post-service VA and private treatment records beginning in June 2009 show complaints and treatment for bilateral knee pain, swelling, and crepitus, with the knees reflecting full range of motion; and diagnoses of left knee osteoarthritis and right knee chondromalacia were given. Additionally, it was noted that the Veteran has received several steroid injections for relief of bilateral knee pain, with the Veteran wearing a left knee brace. In June 2013, the Veteran was afforded a VA examination to assess the current nature and etiology of his claimed conditions. Upon examination, the examiner diagnosed the Veteran with bilateral knee internal derangement; however, provided an unfavorable opinion as to these conditions being etiologically related to the Veteran’s active duty service. The examiner rationalized that prior to the Veteran’s discharge, physical exam did not document any knee conditions; however, after discharge, the Veteran only began experiencing knee pain and swelling after playing tennis. The examiner added that there was no evidence to suggest that any knee injuries during the Veteran’s service persisted or existed as the origin of the Veteran’s current knee conditions; suggesting that the Veteran’s current knee pain could be due to soft tissue injury post-discharge, degenerative joint disease, or pain secondary to fibromyalgia. See C&P Exam, June 2013. In May 2018, the Veteran submitted a private medical opinion from a nurse practitioner, who opined that after review of the Veteran’s claims file and his current medical condition, it is possible that his current bilateral knee conditions may be related to his military service. See Third Party Correspondence, May 2018. While the Board acknowledges that the May 2018 private examiner provided an opinion tending to weigh in favor of the Veteran’s claim, the Board finds this opinion to be inadequate for adjudicative purposes, as the examiner’s opinion was solely premised on mere speculation with no rationale provided for the overall favorable conclusion. Therefore, the Board assigns this little, if any, probative weight. Conversely, the Board finds the June 2013 VA medical opinion to be highly probative, as this examiner is a licensed orthopedic physician with more knowledge and expertise on the musculoskeletal system than the May 2018 general nurse practitioner, who provided a clear rationale based on a complete review of the Veteran’s claims file, with adequate consideration of accurate and factual medical and service history, and the Veteran’s lay statements. The Board has considered the Veteran’s lay statements that his current bilateral knee disability is related to his active duty service; however, the matter of etiology is not of lay observation but rather can only be established through objective clinical testing or observations. The Veteran is not shown to have the medical training or knowledge to provide an opinion relating a bilateral knee disability to service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, based on the above, the Board finds that the preponderance of the probative evidence of record is against the Veteran’s claim, and entitlement to service connection for bilateral knee disability is not warranted; and the claims are denied. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its applications. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.