Citation Nr: 21006950 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-13 001 DATE: February 8, 2021 ORDER Entitlement to service connection for osteoarthritis of bilateral knees is denied. FINDING OF FACT The preponderance of the evidence is against finding that osteoarthritis of the bilateral knees began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for osteoarthritis of bilateral knees have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to July 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in April 2019. In November 2019, the Board remanded the issues for further development. That development was completed, and the case has since been returned to the Board for appellate review. 1. Entitlement to service connection for osteoarthritis of bilateral knees The Veteran contends that his bilateral knee condition is due to bumping his knees repeatedly when getting on and off tanks. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral total knee arthroplasty (TKA) due to severe osteoarthritis, and evidence shows that the Veteran had recurrent bumping of the knees getting on and off tanks, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of bilateral TKA began during service or is otherwise related to an in-service injury, event, or disease. The January 2020 VA examination shows the Veteran was not diagnosed with bilateral TKA until May 2017, almost five decades after his separation from service. While the Veteran is competent to report having experienced symptoms of pain over the years, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a bilateral knee disorder. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the January 2020 VA examiner opined that the Veteran’s total TKA due to severe osteoarthritis is not at least as likely as not related to an in-service injury, event, or disease, including recurrent bumping of the knees getting on and off tanks. The examiner noted the Veteran’s medical records support a 1968 profile for internal derangement of the knee and considered the Veteran’s statements of bumping his knees during service while getting on and off tanks. The examiner reasoned that the Veteran’s credible history does not support the conclusion that his severe osteoarthritis documented in 2003 at age 61 is related to his two years in service. The examiner stated that post service the Veteran had a physical occupational career of construction and building log cabins for many years. This physical career along with progressive degeneration of joints with aging is more likely the culprit to the Veteran’s eventual bilateral TKA due to severe osteoarthritis. The VA examiner considered the Veteran’s lay statements and Veteran’s in-service profile for internal derangement of the knee. The examiner addressed the Veteran’s post-service career and other factors, such as aging. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The only other opinion in this matter come from the Veteran. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. Consequently, the Board gives more probative weight to the January 2020 VA medical opinion. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. The Veteran's lay belief that symptoms he has experienced over the years are manifestations of a chronic continuous disease process that had its onset in service rather than separate and distinct responses to post-service events is unfounded. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply and the benefit sought on appeal is accordingly denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.