Citation Nr: 21007999 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 13-14 700 DATE: February 11, 2021 ORDER Service connection for a bilateral knee disorder is denied. Service connection for a bilateral leg disorder is denied. FINDINGS OF FACT 1. The Veteran’s bilateral knee disorder did not manifest in service, was not continuous since service, was not shown to a compensable degree within one year of separation from service and is not etiologically related to his active service. 2. Throughout the appeal period, the Veteran has not been diagnosed with any condition concerning the lower extremities, other than osteoarthritis of the bilateral knee. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a bilateral knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. 2. The criteria to establish service connection for a bilateral leg disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1976 to May 1978. This matter was previously before the Board of Veterans’ Appeals (Board) in December 2019. The appeal was remanded for further development in accordance with an April 2019 joint motion for partial remand (JMPR) from the Court of Appeals for Veterans Claims (Court). Further development having been completed as instructed in the December 2019 Board remand and in accordance with the April 2019 JMPR; the matter is once again before the Board. Service Connection Service connection may be granted for a current disability resulting from a disease or injury incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires (1) 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Further, where the Veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). As arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology and of 38 C.F.R. § 3.307 pertaining to presumptive service connection for chronic disease apply to the issue of arthritis. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With regard to the competency of lay evidence, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed through the use of his senses, not medical expertise. See Layno, 6 Vet. App. At 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Service connection for a bilateral knee disorder is denied. 2. Service connection for a bilateral leg disorder is denied. The Veteran contends that he has bilateral knee and leg disorders that are related to his service. For the reasons set forth below, service connection is not warranted for bilateral knee and leg disorders. The Veteran’s July 1976 entrance examination indicates that he was in good health and does not indicate any knee or leg condition. Service treatment records (STRs) reflect that the Veteran reported left knee pain in October 1976. In February 1977, the Veteran again reported pain in the left knee for two days after falling over a tripod. The Veteran’s April 1978 separation examination indicates that he was in good health and does not indicate any knee or leg condition. A July 2010 VA medical record indicates that the Veteran had a magnetic resonance imaging (MRI) in 2006 of the left-knee showing degeneration of the posterior horn of the medial meniscus and suspected partial tear. In December 2011, the Veteran reported that he injured his right knee when he fell on rock while running in-service in Hawaii. In a June 2012 VA examination, the Veteran again reported that he injured his right knee when he fell while running in Hawaii in-service. The examiner diagnosed osteoarthritis of both knees. In a July 2012 VA addendum opinion, the examiner opined that the bilateral knee disability was less likely than not related to service because the Veteran’s osteoarthritis is in symmetrical fashion and, therefore, neither the claimed right leg injury in 1977 nor favoring the left leg is related to the subsequent development. The examiner opined that the minor incident in 1977 was not the proximate cause of the development of arthritis of the knees 35 years later. A November 2013 VA medical record indicates a right knee medial meniscus tear and cysts of the proximal right tibia. A November 2013 VA medical record indicates a left knee medial meniscal tear, severe sprain, and partial tear of the ACL. In an October 2014 VA examination, the examiner repeated the same rationale as the July 2012 VA addendum opinion. However, the July 2012 and October 2014 VA opinions have been determined to be inadequate. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994)). Pursuant to the December 2019 Board remand, the Veteran was afforded a VA examination in February 2020. The examiner was asked to identify whether the Veteran’s bilateral knee and leg disorders were incurred in-service or caused by an in-service injury, event or illness. The examiner was also asked to identify, to the extent possible, the likely etiology of the Veteran’s bilateral knee and leg disorders. In the February 2020 VA examination, the examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. A diagnosis of bilateral knee osteoarthritis was noted. No other diagnoses were indicated, and the examiner specifically noted that the Veteran does not have any other pertinent physical findings, complications, conditions, signs or symptoms related to his bilateral knee or leg. The examiner opined that the Veteran’s bilateral knee disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner also opined that the Veteran’s bilateral leg disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran was discharged from service in April 1978 and that no knee condition was noted on his separation examination. The examiner also noted that there are no medical records that pertain to an ongoing knee condition in the years immediately following separation from service. The examiner noted that the Veteran was first assessed for a knee condition in 2006, approximately 28 years after his separation from service. The examiner noted that the Veteran’s current diagnosis is consistent with bilateral knee osteoarthritis, which is a degenerative condition that progressively occurs over time, secondary to normal wear and tear. The examiner noted that osteoarthritis develops independently of the acute and self-limiting injuries to the left knee that occurred approximately 43 years ago during service. Given this, the examiner opined that the current bilateral knee osteoarthritis is less likely than not incurred in and/or caused by an in-service injury, event, or illness. There is no medical evidence of record suggesting that the Veteran's bilateral knee or leg disorders were incurred in or caused by his service. Medical evidence of record show that the Veteran has a diagnosis of bilateral knee osteoarthritis, but there is no indication, other than the lay assertions of the Veteran, that his bilateral knee or leg disorders were incurred in-service. (Continued on the next page.) While the Veteran is competent to report bilateral knee and leg symptoms, he is not competent to opine on the etiology of his bilateral knee and leg disorders, as that requires medical testing and expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran’s claims for service connection for bilateral knee and leg disorders are denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.