Citation Nr: 21007071 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-19 688A DATE: February 8, 2021 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. REMANDED Entitlement to service connection for a psychiatric disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence weighs against associating a left knee disability with any incident of service. 2. The preponderance of the evidence weighs against associating a right knee disability with any incident of service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to April 1971. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In August 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. During the course of the appeal, an August 2020 rating decision established service connection for a lumbar spine disability, representing a full grant of that benefit sought. That issue is no longer on appeal. This case was previously remanded for further development. In light of the treatment records that have been obtained and associated with the record, the obtaining of the requested medical opinions, and the further adjudicatory actions taken by the Agency of Original Jurisdiction, the Board finds that there has been substantial compliance with the remand requests concerning the issues of entitlement to service connection for left and right knee disabilities. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection 1. Entitlement to service connection for a left knee disability 2. Entitlement to service connection for a right knee disability Service connection will be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection will also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Furthermore, service incurrence will be presumed for certain chronic diseases if manifest to a compensable degree within the year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran contends that he has a current bilateral knee disability as the result of service. The Veteran has not alleged a specific in-service event or disease that he believes caused the alleged disability, but that a current knee disability is related to marching during active service. The service medical records do not contain complaints, treatment, or diagnosis of any knee condition. The April 1971 separation examination found that the lower extremities were normal. On an accompanying Report of Medical History, the Veteran indicated that he did not experience arthritis, rheumatism, or “trick” or locked knee, but he did experience swollen or painful joints. A July 1978 private radiology report shows that the Veteran had no right knee fractures, dislocations, or other bone or joint abnormalities. A January 1994 private treatment record shows that the Veteran injured both knees while on a scaffold three weeks previously. On VA examination in July 2013, the examiner diagnosed osteoarthritis of the bilateral knees and status-post right knee meniscectomy. The Veteran reported that he experienced bilateral knee pain from repetitive stresses during service. The examiner opined that it was less likely than not (less than 50 percent probability) that the claimed knee disabilities were incurred in or caused by any claimed in-service injury, event, or illness. The examiner supported that conclusion by stating that there were no records of knee injury or condition resulting in a current knee condition and that degenerative arthritis etiology was multifactorial. At an August 2019 Board hearing, the Veteran stated that he could not remember any specific incident in service when he hurt the knees. He remembered that his knees swelled and gave him problems when he was running in service. On VA examination in January 2020, the examiner diagnosed right knee status post meniscal repair for tear, and osteoarthritis of both knees. The Veteran told the examiner that during basic training, he was running and was knocked to the ground. The examiner opined that it was less likely than not (less than 50 percent probability) that the claimed knee disabilities were incurred in or caused by any claimed in-service injury, event, or illness. The examiner supported that conclusion by stating that the separation examination only noted a back injury, and did not mention a knee condition, nor did the entrance examination. The examiner also mentioned that the record did not show a knee condition during service and knee complaints were only found after leaving service starting in the late 1970s. On VA examination in August 2020, the examiner diagnosed degenerative arthritis of both knees, and meniscal tear of both knees. The Veteran told the examiner that he developed pain and swelling in the knees while he in service. The examiner noted that the Veteran underwent a right knee meniscectomy in 1974. The examiner opined that the Veteran’s left and right knee disabilities, to include arthritis, were less likely than not (less than 50 percent probability) incurred in or caused by any in-service injury, event, or illness. The examiner found that there was no pattern of chronicity of the Veteran’s knee problems beginning in service and persisting to the present. The examiner stated that there was insufficient evidence to support a relationship between the claimed knee disabilities and service. The examiner further indicated that there was no evidence of arthritis within one year after the Veteran’s separation from service. The Veteran has a current diagnosis of left and right knee disabilities. The Board finds that the preponderance of evidence is against a finding that current knee disabilities were caused or aggravated by active service. The Veteran has sought ongoing medical treatment with VA. However, none of the Veteran’s medical treatment providers has given any indication that the left and right knee disabilities could be related to active duty, and there were no findings of arthritis within one year following separation from service. The only evidence which provides any connection between the Veteran’s left and right knee disabilities and service comes from the Veteran’s own statements. It is to be noted that the Board is not free to substitute its own judgment for a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran’s lay statements. Although laypersons are competent to provide opinions on some medical issues, as to the specific issue in this case, whether the Veteran’s knee disabilities were caused by active service, that issue falls outside the realm of common knowledge of a layperson due to the presence of multiple possible etiologies. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For example, the July 2013 VA examiner remarked that the etiology of arthritis was multifactorial, and the post-service treatment records document a bilateral knee injury in January 1994. As a layperson, it is not shown that the Veteran possesses the medical expertise to provide an etiology opinion, and there are no competent etiology opinions are of record that support the claim. The Board places the most probative weight on the opinions offered by the July 2013, January 2020, and August 2020 VA examiners. The VA examiners are objective medical professionals, who have the medical training and knowledge to perform and interpret the necessary medical tests. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for left and right knee disabilities, and the claims must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disability is remanded. In June 2020, the Board remanded the issue of entitlement to service connection for a psychiatric disability to schedule the Veteran for a VA examination. The requested examination was performed in August 2020. The examiner diagnosed persistent depressive disorder with anxious distress (PDD). After reviewing the service and post-service treatment records, the examiner opined that it was less likely than not that PDD was directly due to service. However, the examiner opined that it was more than likely that PDD was secondary to back and knee injuries. Service connection is in effect for a low back disability, but the knee disabilities are not service-connected. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Remand is necessary for clarification regarding whether any current psychiatric disability was incurred in service, or is due to or aggravated by any service-connected disability. The matters are REMANDED for the following action: 1. Obtain all VA treatment records not already associated with the claims file. All attempts to locate records must be documented in the claims file. 2. Then, schedule the Veteran for a mental disorders examination. The examiner must review the claims file and should note that review in the report. After reviewing the August 2020 examination report and the claims file, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any current psychiatric disability (1) is related to service or any event, injury, or disease during service, (1) is due to or caused by any service-connected disability, or treatment for any service-connected disability, to include a back disability with bilateral lower extremity radiculopathy, or (2) has been aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability, or treatment for any service-connected disability, to include a back disability with bilateral lower extremity radiculopathy. The examiner should be informed that while service connection has been established for a back disability, service connection has not been established for any knee disabilities. The examiner should address the Veteran’s lay statements, including hearing testimony, regarding the claimed psychiatric disability and its etiology. The examiner must consider and discuss the lay statements and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for each opinion should be provided. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Layton, 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.