Citation Nr: 21007456 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-03 572 DATE: February 9, 2021 ORDER Entitlement to service connection for a left knee disability is denied. FINDING OF FACT The probative evidence is against a finding that the Veteran’s left knee disability is related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1963 to September 1965, from October 1965 to September 1969, and from October 1970 to September 1985, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). It was most recently before the Board in November 2018, where the claim was denied. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Memorandum Decision, the Court set aside the Board’s November 2018 denial and remanded the matters back to the Board. It now returns for further appellate review. The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2016. The Board also notes that additional VA treatment records have been associated with the record since the last Statement of the Case. However, these records are either cumulative/redundant of records previously reviewed, with the Veteran reporting ongoing bilateral knee pain, or irrelevant to the issue being decided. Thus, initial review of the evidence by the Board with respect to the claim on appeal is appropriate. See 38 U.S.C. § 7105(e); 38 C.F.R. § 20.1305(c). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. Service Connection As the Board determined in its previous decision, the record confirms a current left knee disability as VA examinations during the appeal note a diagnosis of left knee osteoarthritis and a total knee replacement. It is the Veteran’s contention that his knee disability is related to an in-service motorcycle accident. For the reasons that follow, the Board finds the evidence is against his claim. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has also established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service treatment records (STRs) note an October 1981 motorcycle accident where the Veteran injured his left knee, resulting in a 3 by 5 centimeter abrasion over the patella. He also suffered a right elbow injury. Treatment records at the time note no edema, erythema, or ecchymosis, and the Veteran’s knee exhibited good range of motion. After his wounds were cleansed and dressed, he was returned to duty with an antibiotic and home care instructions. Follow-up treatment three days later noted that an unidentified wound was infected and treated. Additional records in the following days suggests it was the Veteran’s elbow that was infected. The Veteran’s STRs show no other complaints, diagnosis, or treatment related to a knee injury after his motorcycle accident. While the Board acknowledges that the record does not contain a separation examination or contemporaneous report of medical history, a physical examination was performed in the year following his accident, in June 1982, which noted no abnormalities relating to the left knee or lower extremities. A left knee disability is not shown by the remaining medical evidence until a diagnosis of osteoarthritis in 2010 and treatment beginning in 2011, many years after the Veteran’s separation from service. As arthritis is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of the Veteran’s left knee arthritis cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran has asserted a continuity of symptomology since service, the Board finds his statements to lack credibility. The Veteran presented for a physical examination in June 1982, in the year following his motorcycle accident. This examination was noted to be a periodic physical examination of the entire body, including his lower extremities. It was not an examination for the purposes of a complaint or injury unrelated to the knees. Evaluation of the knees was performed and was reported as normal. This in-service examination report is more reliable regarding the Veteran’s condition at the time than more recent assertions by the Veteran as it was performed contemporaneous to service and for the purpose of identifying a disability at that time. The Veteran was obviously present for the examination and would have been provided the opportunity to relay medical complaints. This is evident by the notation regarding his medical history related to his blood pressure. This is not information the examiner could have obtained through simple examination, but instead would have required interview of the Veteran. The Board would expect a reasonable person would reveal ongoing knee problems to a military medical examiner as such problems could have a direct effect on the ability to perform duties in the military, to include as a food service specialist, which is a position that requires one to be on their feet for long periods of time. Moreover, the Veteran reported a number of other ailments during service, such as low back pain, foot pain, a sore throat, and an axilla mass. See June 9, 1982; April 4, 1984; April 26, 1984; April 4, 1985 STRs. These are just a few examples. These complaints occurred during the time period after the motorcycle accident and include orthopedic complaints. As the Veteran clearly sought treatment for other orthopedic complaints after his motorcycle accident, the Board finds that knee problems are the type of problem that a reasonable person, to specifically include the Veteran, would report while serving in the military if they were experiencing such problems. Instead, his STRs are absent left knee complaints in the years following his motorcycle accident and, as noted above, a left knee disability is not shown in the record until roughly 25 years after his separation. Finally, as discussed below, a January 2011 private treatment record noted a two month history of knee pain and a March 2011 MRI noted a two month history of knee pain. Both the MRI and the January 2011 report suggest the Veteran did not have continuing knee problems since service, as if he had there could be no new onset of knee pain. The Board recognizes that the Veteran likely had knee pain prior to 2011, especially given that he was diagnosed with osteoarthritis in 2010. However, any knee pain would have been at most episodic, and not continuous, given the Veteran’s statements regarding onset of knee pain in 2011. Regarding a link between the motorcycle accident and the current left knee disability, the Veteran first presented for a VA examination in December 2013, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner noted the Veteran’s in-service motorcycle accident, a November 2010 diagnosis of osteoarthritis, a March 2011 MRI, and an April 2011 total left knee replacement. The examiner indicated that the Veteran injured his knee in a 2011 bowling accident and opined that his left knee disability was therefore unrelated to the knee “abrasion” caused by his in-service motorcycle accident. However, the examiner failed to address his prior diagnosis of osteoarthritis in 2010, which would have been prior to any bowling accident. It is noted that while the Veteran disagrees that there is a history of a bowling injury to his left knee, a private MRI from March 2011 indicates the Veteran had left knee pain for the past two months “STATUS POST BOWLING INJURY.” The private clinician has no reason to inaccurately report the history of injury. Regardless of whether the injury was due to bowling, the March 2011 MRI report is clear that there was a recent injury to the left knee. The Board remanded the Veteran’s claim for an addendum opinion in June 2017, which was provided in September 2017. The examiner reviewed the medical history, including the previous examination report and diagnosis of osteoarthritis in 2010, as well as the Veteran’s lay statements regarding the severity of his in-service injury and symptomology since. The examiner also noted, importantly, a January 2011 private treatment record from Dr. J.J. where the Veteran reported that left knee pain began two months prior and was similar in nature to pain felt during his in-service motorcycle accident. The examiner opined that it was not at least as likely as not that the Veteran’s current left knee disability had its onset in active service or was otherwise causally or etiologically related to the Veteran’s active service. In support of the opinion, the examiner acknowledged the Veteran’s assertions that his initial knee injury was more severe and that he was fitted with a brace, but noted that his first report of left knee pain after service was not until 2010, 29 years after his motorcycle injury, and the subsequent X-ray findings of osteoarthritis noted “no acute process.” Thus, the examiner found this as an indication that the motorcycle injury in 1981 was an acute injury without chronic results and unrelated to his current diagnosis. The Board notes here that the RO determined that the September 2017 opinion did not address the Veteran’s 2011 report of a gradual onset of pain, and as such, deferred the issuance of an additional decision on the Veteran’s claim pending an addendum opinion from a VA orthopedic surgeon. As noted above, however, while the “Conclusion” portion of the September 2017 examiner’s addendum does not specifically address the Veteran’s January 2011 report, this medical record is in fact listed in the evidence considered by the examiner, including the Veteran’s report of a gradual onset of pain. Nevertheless, as the record also reflected a private physician’s positive nexus opinion subsequent to the September 2017 examiner’s addendum, the VA orthopedic surgeon’s addendum opinion was obtained in June 2018 from Dr. M.F. After review of the record, including the Veteran’s January 2011 report of symptomology similar to his in-service motorcycle accident and a gradual onset of pain, Dr. M.F. opined that it was less likely than not that the Veteran’s left knee condition was caused by his in-service injury. He explained that the Veteran’s military medical records, other than the treatment for his initial injury in October 1981, were negative for left knee complaints despite the Veteran’s assertions that his knee injury was more severe than an abrasion, and that post-service records reviewed prior to his 2010 osteoarthritis were negative for left knee complaints. Dr. M.F further explained that the etiology of knee osteoarthritis involves a complex interaction of multiple factors, including obesity (which the Board notes the Veteran has a history of), genetics, heredity, aging, repeated microtrauma, and progressive degradation of cartilage, and noted medical treatise evidence in support of this rationale. Based on the foregoing, the Board denied the Veteran’s claim in November 2018. After review of the evidence again, including the Court’s Memorandum Decision, the Board continues to find the probative evidence is against a finding that the Veteran’s current left knee disability is related to his military service. The medical evidence indicates no more than an acute in-service abrasion of the left knee, with no diagnosis or treatment of a left knee disability again until many years later. The Board acknowledges that the Veteran testified during his hearing before the undersigned that his in-service knee injury was more than a mere abrasion, and that his knee was placed in a brace. Further, while a VA examiner in December 2013 related the Veteran’s left knee disability to a post-service bowling injury, the Veteran has disputed this. However, as detailed above, the Board finds the Veteran’s assertion of continuing left knee problems since the motorcycle accident to be lacking credibility. The Board further finds the assertion that his knee pain has progressively worsened since service to be in conflict with the medical record. Of note, despite the Veteran reporting other complaints to providers in the medical record that dates back to 2007, including back pain and lower extremity edema, the Veteran did not report left knee pain to treatment providers until 2010. If a reasonable person sought treatment for back pain, the Board would also expect that person to seek treatment for knee pain as they are both orthopedic problems that can affect physical functioning. Additionally, the Veteran did not report to Dr. J.J. in January 2011 that the left knee pain began in service and gradually worsened since. Rather, Dr. J.J.’s notes state that his symptoms have worsened since their onset, an onset that the Board has already noted began two months prior according to the Veteran in the same encounter. Moreover, to interpret Dr. J.J.’s notation of “[p]rior injuries similar in nature: Motorcycle accident back in 1980” to mean that his in-service symptoms have continued since would be tenuous at best. Instead, the Board finds this statement to mean that the Veteran reported having an injury in the area of the knee in 1980 and not that symptoms from the 1980 injury continued until the present. It would be illogical to note an onset of knee pain two months prior to the January 2011 encounter if the knee pain had continued since service. The June 2018 VA orthopedic surgeon considered these private treatment records in his addendum opinion, as well as the Veteran’s lay statements that his in-service accident was worse than his STRs memorialize, and still provided a negative nexus opinion. Moreover, the Veteran has not provided any probative medical evidence in significant conflict with the VA examination reports. While the Board acknowledges the positive opinion provided by Dr. D.W. in 2017 that his disability is more likely “post traumatic,” and due to his motorcycle accident, it is afforded no probative value as no supporting explanation or rationale was given to support the conclusion reached and the opinion was provided without review of the medical record. Regarding the in-service motorcycle accident, Dr. D.W. simply states that the Veteran told him he had a motorcycle accident in 1981. It is unclear if Dr. D.W.’s opinion would be the same if he had reviewed the treatment records surrounding the motorcycle accident and the subsequent normal evaluation of the lower extremities during a periodic examination. As such, the Board does not agree that the September 2017 was somehow inadequate due to the fact that it was provided without consideration of this non-probative opinion. In contrast, the VA examiners’ observations and rationale were based, as a whole, on an in-person examination, review of all available records, and consideration of the Veteran’s lay assertions. In sum, as the probative evidence remains against the Veteran’s claim, service connection for a left knee disability must again be denied. While the Board acknowledges the Veteran’s statements, to include his assertions that his current left knee disability is related to his in-service accident, he is not shown to have medical education or experience. The Veteran is a lay person, and competent to report (1) symptoms that are observable to a layperson, e.g., knee pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent, however, to independently opine as to a specific diagnosis and the etiology of a condition as these are medically complex issues, and as such, his lay assertions do not constitute evidence upon which service connection can be granted. The Board ultimately assigns greater probative weight to the medical evidence of record, including the opinions rendered by trained medical professionals, including an orthopedic surgeon, based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.