Citation Nr: 21007996 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 20-00 020A DATE: February 11, 2021 ORDER Entitlement to service connection for right knee disability is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s current right knee disability is related to an in-service injury or disease, that it was diagnosed within one year of active duty service, or that the Veteran has experienced continuous symptoms of right knee arthritis since active duty service. CONCLUSION OF LAW The criteria for service connection for right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1977 to June 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Per his January 2020 VA Form 9, the Veteran requested to be scheduled for a Board hearing at his local VA office. However, per a statement from the Veteran received in October 2020, the Veteran requested that his hearing request be withdrawn. Accordingly, the Board deems the hearing request withdrawn. The Board observes that the Veteran has perfected an Appeals Modernization Act (AMA) Direct Review docket appeal of the issues of entitlement to service connection for chronic pain, lumbar strain, absence seizures or petit mal atomic seizures, generalized headaches, and right and left leg pain. See VA Form 10182, received by VA in October 2020. That appeal is being processed by the Board on a separate docket and will not be addressed herein. Instead, it will be the subject of a future Board decision, if otherwise in order. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. 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). Certain chronic diseases, such as arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has a right knee disability that is related to his active service. Specifically, he alleges that he injured his right knee during a baseball game while stationed at Fort Benning, Georgia. The record establishes a current diagnosis of severe right knee tricompartamental osteoarthritis, as shown in a March 2017 VA examination, and established by X-rays. Additionally, the evidence shows that the Veteran underwent a right total knee replacement in February 2019. Thus, a current right knee disability is demonstrated. Additionally, the evidence shows an in-service right knee injury. Service treatment records show that the Veteran sought treatment for pain in his right knee from May 1990 to July 1990 and again in March 1991. See STR – Medical, received by VA in October 2014. The Veteran was diagnosed with retropatellar pain syndrome and was prescribed motion and stretching and strengthening exercises. Accordingly, an in-service injury is established. However, the probative evidence of record does not establish a nexus between the Veteran’s active duty service and his current right knee disorder. In a May 2017 VA opinion, the examiner opined that it was less likely than not that the Veteran’s right knee tricompartmental osteoarthritis was caused by the transient right knee pain reported while in service, or otherwise causally related to service. The examiner explained that there was no continuity of care that indicated that a chronic condition had evolved or that there had been trauma of such severity to result in tricompartmental osteoarthritis. The examiner acknowledged the Veteran’s statements to the effect that his right knee disability was related to an injury incurred during a baseball game while he was in service, but ultimately concluded that it was less likely than his current right knee disability was incurred in or related to the Veteran’s active service. The Board finds the May 2017 VA opinion to be probative, as the opinion was supported by a clear and well-reasoned analysis, was based upon an accurate and thorough review of the pertinent evidence, and also considered the Veteran’s lay statements as to the onset of his right knee disorder. There is no objective evidence of a right knee disorder until many years after service. In fact, the first objective post-service evidence of a right knee disorder in the claims file is shown in a March 2013 medical treatment record, 20 years after the Veteran’s discharge from service. See Medical Treatment Record – Non-Government Facility, received by VA in November 2020. Due to the lack of evidence demonstrating the presence of a right knee disability until more than 20 years after service, the Board cannot conclude that it manifested to a compensable degree within a year following separation to allow for service connection on a presumptive basis in accordance with 38 C.F.R. §§ 3.307 and 3.309. Additionally, the absence of any clinical evidence for many years after service is a factor the Board considers when determining whether the evidence supports a finding that the right knee disorder is etiologically related to active military service. Service connection is also possible for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker, 708 F.3d 1331. Arthritis a chronic disease listed in 38 C.F.R. § 3.309(a) and reports of a continuity of symptoms can support the claim under 38 C.F.R. § 3.303(b). Id. As noted above, the first medical evidence of a right knee disorder is shown in March 2013, 20 years after service discharge. At that time, the Veteran reported a mere one to two year history of right knee symptoms. Additionally, the Veteran has provided no lay statements indicating that he has experienced symptoms of a right knee disorder continuously since active duty service. In the absence of any evidence that the Veteran experienced right knee symptoms continuously since his active duty service, service connection is not warranted based upon continuity of symptomatology. The Board has also considered that Veteran’s statements to the effect that his right knee disorder is related to an injury incurred during a baseball game while he was in service. The Board observes, however, that the record does not demonstrate that the Veteran possesses the medical knowledge or training to provide a competent opinion as to the etiology of his disabilities in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Board must defer to the medical evidence of record regarding the issue. In summary, the most probative evidence of record preponderates against finding that the Veteran’s current right knee disability began during his active service or is otherwise related to an in-service injury or disease. Because the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (Continued on the next page)   The Board notes that the Veteran underwent a total right knee replacement in February 2019; however, medical evidence of record shows that the total knee replacement was due to osteoarthritis in the Veteran’s right knee. See Medical Treatment Record – Non-Governmental Facility, received by VA in March 2019 and July 2019. Therefore, the Veteran’s total right knee replacement is not a new right knee condition asserted by the Veteran, but rather the same condition previously alleged which has been addressed above. Accordingly, the Board has treated the Veteran’s total right knee replacement as a worsening of his osteoarthritis of the right knee. The Board is sympathetic to the Veteran and grateful for his honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.