Citation Nr: 21008161 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-41 113A DATE: February 11, 2021 ORDER Entitlement to service connection for a left knee disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s left knee disability is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1101, 1112, 5103A, 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 in the United States Air Force from August 1956 to December 1964 with additional Reserve and National Guard service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the Veteran’s claims file. In October 2018 and May 2020, the Board remanded the matter to the RO for further development. As an initial matter, the Board notes that additional VA treatment records were added to the record regarding the Veteran’s hospitalization for Covid-19 pneumonia after issuance of the last Supplemental Statement of the Case (SSOC) in November 2020. However, this additional evidence is not relevant to the Veteran’s instant left knee service connection claim. As such, a remand for consideration by the Agency of Original Jurisdiction (AOJ) is not warranted. Entitlement to service connection for a left knee disability The Veteran contends that his left knee disability is related to service, to include from an in-service injury after falling from a ladder/aircraft at Hahn Air Force Base (AFB) in approximately late 1958 or early 1959. See June 2013 Correspondence. Specifically, he argues that he only injured his left knee during service and was informed by a medical professional that his left knee disability is related to an injury. See June 2013 Correspondence, July 2014 Notice of Disagreement, and September 2014 Report of Contact. As such, the Veteran contends that his left knee disability is related to an injury in service and not from normal wear and tear. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active 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 from service, when all the evidence, including that pertinent to service, establishes that the disease was incurrent in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may also be granted for chronic conditions that have manifested continuous symptomology since separation of service. 38 C.F.R. §§ 3.307, 3.309. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board notes that the Veteran has been diagnosed with left knee osteoarthritis and underwent left knee total knee arthroplasty. See February 2017 operative report. As such, the Veteran has a current diagnosis for VA compensation purposes. Therefore, the remaining questions are whether the Veteran experienced an in-service injury, event, or disease and whether there is a nexus or link between the Veteran’s current disability and any in-service injury, event, or disease. Turning to the evidence of record, the Veteran’s service treatment records (STRs) are silent as to any complaints, treatment, or diagnoses related to his left knee disability. The Veteran’s December 1958 separation and re-enlistment Report of Medical Examination reflects that the Veteran’s lower extremities and other musculoskeletal systems were assessed as normal. His November 1964 active duty separation Report of Medical Examination also reflects that the Veteran’s lower extremities and musculoskeletal systems were assessed as normal. At such time, the Veteran was assigned a “1” rating for all categories, including his lower extremities, under the PULHES profile system, indicating his lower extremities were in a high level of fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the “PULHES” profile reflects the overall physical and psychiatric condition of the Veteran assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). Nevertheless, the Veteran asserts that he first injured his left knee in 1958 or 1959, was medically treated, and that x-rays at the time were normal. See September 2014 Report of General Information. He further explained that he was put on restricted duty and in August 1959 was taken off restricted duty. See June 2020 Correspondence. Thereafter, the evidence of record is also silent as to any complaints, treatment, or diagnoses related to a left knee disability during the Veteran’s Air Force Reserve and National Guard service. For instance, his January 1965 National Guard enlistment Report of Medical Examination reflects that the Veteran’s lower extremities and musculoskeletal systems were assessed as normal and in his January 1965 Report of Medical History, he denied having or ever having a “‘trick’ or locked knee” and/or a bone, joint, or other deformity. Likewise, his November 1971 Air Force Reserve enlistment Report of Medical Examination reflects that the Veteran’s lower extremities and musculoskeletal systems were assessed as normal while he also denied having or ever having a “‘trick’ or locked knee” and/or a bone, joint, or other deformity in his November 1971 Report of Medical History. Additionally, his February 1972 Physical Profile Serial Report reflects a “1” rating for all categories under the PULHES profile system. Although his June 1974 Physical Profile Serial Report reflects a “4” rating under the “P” category (standing for physical capacity or stamina), he still had a “1” rating for his lower extremities under the PULHES profile system. Additionally, the November 1973 Report of Medical History further indicates that the Veteran denied any significant changes in his medical history since his last examination in November 1971. The post service treatment records also do not reflect any treatment, complaints, or diagnoses related to his left knee until over 45 years after his service. In this regard, an October 2012 VA left knee MRI report and treatment record reflect that the Veteran had left knee pain for about a week. Likewise, another October 2012 VA treatment record reflects that the Veteran reported left medial knee pain for approximately two weeks. In April 2013, the Veteran complained of left knee pain and swelling. See April 2013 private treatment record. He reported his left knee had never significantly bothered him but had significantly flared up over the past week. That same month, he reported that he occasionally has a sore spot on his left knee medially and that his knees always pop but there was no history of trauma ever to the knee. See April 2013 VA treatment record. An April 2013 VA MRI report of the left knee for pain and swelling also indicates the Veteran reported no injury. In May 2013, at a VA orthopedic surgery consultation, the Veteran reported left knee pain that gradually came on and reported having an injury to his knee when he was active in the military. Another May 2013 VA orthopedic surgeon note reflects that the Veteran reported his knee first became painful two months prior. Thereafter, an August 2013 VA treatment record reflects that an orthopedist diagnosed the Veteran with osteoarthritis of the left knee and that the Veteran reported he injured the knee on active duty when he was stationed in Germany in 1959. The VA physician noted that osteoarthritis of the right knee may have been exacerbated by the remote injury. The Board notes that although the treatment record indicates the right knee may have been exacerbated, this appears to be a mistake and the Board will assume that the physician intended the note to indicate the left knee may have been exacerbated by the remote injury. In September 2014, the Veteran reported that he first injured his left knee in 1958 or 1959 and did not have problems with his knee again until 2012, when he was treated at the VA medical center. See September 2014 Report of General Information. However, a February 2017 private presurgical left knee evaluation reflects that the Veteran reported having some pain in his left knee for approximately 59 years. He did not remember a specific injury, but notations reflect the “left knee is an old hurt.” He also had arthroscopic surgery on his right knee several years prior by a private physician and was told he had the cartilage of a young man. The private evaluation further reflects that radiographs of the bilateral knees showed severe degenerative joint disease with near complete collapse and bone on bone configuration sclerotic changes of the left knee with moderately advanced changes in the medial compartment of the right knee. At the December 2017 Board hearing, the Veteran testified that he injured his knee during service and had a severe sprain. See December 2017 Board hearing transcript, p. 5. He further testified that within a couple of weeks, “it just kind of went away” and that he did not think about this incident until he started having knee problems a couple years ago. See id. Specifically, he confirmed that his left knee started bothering him between approximately 2010 to 2012. Id. a pp 8-9. The Veteran later asserted that that the force of twisting his left knee in service when he slipped from the ladder caused permanent damage to his left knee and that from the early 1960s his left knee would pop or snap every time that he would stand after sitting. See June 2020 Correspondence. In support of his claim, the Veteran also submitted several online articles on how arthritis/post-traumatic arthritis can occur due to injury to the joint, to include a Cleveland Clinic article explaining that post-traumatic arthritis is caused by the wearing out of a joint that has any kind of physical injury and that such injuries can damage the cartilage and/or the bone, changing the mechanics of the joint and making it wear out more quickly. See March 2020 Correspondence. The Board notes that the record also contains several opinions regarding the nature and origin of the Veteran’s disability. In this regard, there are three VA opinions and one private nexus opinion. The Veteran was first afforded a VA opinion in September 2014 wherein the VA examiner opined that the Veteran’s left knee osteoarthritis was less likely than not related to service and noted a discrepancy in the history provided by the Veteran. Although the VA examiner provided a negative nexus opinion, as discussed in the October 2018 Board remand, given that the VA examiner relied on the lack of documentation of an injury in service without adequately addressing the Veteran’s contentions, the opinion was inadequate. As such, the Board will assign no probative weight to this opinion. In December 2017, the Veteran’s private treating physician opined that because the Veteran does not have arthritis or issues elsewhere in his other knee, there is a 51 percent chance or greater that his arthritic changes in his left knee over time could be related to the severe injury he sustained in 1959. Thereafter, and following the October 2018 Board remand, the Veteran was afforded another VA examination in September 2019. At the time of the examination, the Veteran reported that he injured his left knee in 1958 during service, that his left knee got better, and that it started hurting again in 2012. The September 2019 VA examiner opined that the Veteran’s left knee disability was not related to service because there was no evidence of chronicity of care. The examiner explained that 54 years had passed since the date of the Veteran’s claimed in-service injury to the date of his left knee surgery in 2017 and that his osteoarthritis could be due to other risk factors such as age or obesity. The May 2020 Board decision found this opinion inadequate because the VA examiner failed to consider all the lay evidence of record including the articles submitted by the Veteran, as instructed to do so in the October 2018 Board remand, and did not adequately address whether the Veteran’s current disability is a result of his in-service physical injury. Given these inadequacies, the Board will assign the September 2019 opinion no probative weight. In November 2020, a VA examiner reviewed the Veteran’s claims file and documented the relevant medical evidence, to include the May 2013 and August 2013 VA treatment records indicating reports of injury while in the military and the December 2017 private physician opinion. The VA physician opined that the Veteran’s left knee disability was not related to the in-service injury or event. She reasoned that the Veteran’s left knee strain during service was acute and there is no evidence of chronicity of care. Specifically, she explained that the Veteran’s in-service injury was acute because review of the STRs do not show ongoing left knee treatment or pain nor do the STRs indicate residual symptoms following his injury. She noted the multiple medical examinations performed during his active duty, reserve duty, and national guard service, which do not document any injury to the left knee or ongoing left knee symptoms and noted that, in fact, the Veteran indicated a negative history of joint injury or pain on multiple occasions throughout these periodic health examinations. The examiner further explained that the evidence of record does not reflect left knee pain until 2012 and that he developed arthritis decades after his reported in-service injury. She concluded that the Veteran’s left knee disability was more likely due to elevated body mass index and aging of the knee. The November 2020 VA examiner also addressed the multiple articles provided by the Veteran discussing the causes of knee arthritis and that he and the articles he submitted accurately note that trauma is a cause of arthritis and is frequently the main culprit in arthritis that develops at a younger age. She explained that trauma, however, is not the only cause of arthritis, which is also described in the articles, and that additional causes of arthritis include elevated body mass index, typical aging, and inherited predisposition to joint wear. She further concluded that although trauma is a potential cause of arthritis, it is not likely the case for the Veteran. In this regard, she explained that post-traumatic arthritis is common after ligamentous and meniscal injuries but that the Veteran did not have a ligamentous injury to his knee evidenced by his MRI and 2017 operative report. She also explained that it would be unlikely that any significant injury to the knee would have resolved after a brief time period with no significant symptoms for 50 years because typically post-traumatic arthritis appears within 10 to 15 years following injury, which is why the referenced articles discuss it as a cause in young and middle age individuals. As such, the Board finds that the VA examiner sufficiently addressed the Veteran’s contention that that he believed his current problems are due to his in-service fall because this was the only injury to his left knee because she explained the reasons for her belief that the Veteran’s current left knee disability was not related to trauma or his in-service injury. The Board finds that the November 2020 VA examiner also sufficiently addressed the evidence indicating that the Veteran’s left knee disability may be related to service because she explained that although the providers found that the Veteran’s left knee arthritis is more likely than not post-traumatic because the Veteran’s right knee is normal and because the Veteran reported he does not have other joint arthritis, this rationale is inaccurate. She explained that the medical records reflect the Veteran has right knee issues, including as shown on his 2017 x-ray. She noted that while his arthritis is more severe in his left knee, the arthritis is not only in the left knee. Accordingly, this opinion highly probative evidence against the claim because the VA examiner reviewed the Veteran’s claims file, considered the Veteran’s reports, considered the other theories in the case, and based her opinion on rationale with clear conclusions and supporting evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In light of the above evidence, the Board finds that the preponderance of the evidence is against finding that the Veteran’s claimed condition was manifest during service or was shown to have developed as a result of an in-service injury. Specifically, the probative medical evidence of record does not indicate that his current left knee disability is related to his time in active service. In this regard, the medical evidence of record does not show any complaints or symptoms related to the Veteran’s left knee disability until over 45 years after his service. The Board notes that this delay, while not conclusive, weighs against the establishment of service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board’s denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Moreover, the Board finds the November 2020 VA opinion probative evidence of the medical nexus question and assigns this opinion more probative weight than the December 2017 private positive nexus opinion and the August 2013 VA treatment record noting that the knee may have been exacerbated by the remote injury. In this regard, the November 2020 VA opinion was based on a review of the Veteran’s documented medical history, STRs, assertions, examinations, and research articles submitted in the record while it is unclear if the December 2017 private physician reviewed all of the Veteran’s medical records prior to providing the positive opinion. Likewise, it is not apparent that the August 2013 VA treatment provider reviewed the Veteran’s claims file and the provider did not provide any rationale for his conclusion that the Veteran’s knee may have been exacerbated by his remote injury. Without any rationale, this conclusion is afforded little probative weight. Critically, the November 2020 VA examiner explained that the private positive opinion, which found that the Veteran’s left knee arthritis is more likely than not post-traumatic because the Veteran’s right knee is normal, was based on inaccurate rationale as the evidence documented that the Veteran experienced right knee problems. As such, the Board affords significantly more probative weight to the November 2020 VA opinion and again finds this opinion probative evidence against the Veteran’s claim. The Board acknowledges that the Veteran is competent to report the symptoms that he experienced in service. Indeed, the Board finds credible the Veteran’s report of falling off a ladder and injuring his left knee during service as such is consistent with the circumstances of his military occupational specialty as an Aircraft Radio Repairman while serving at Hahn AFB in Germany. As such, the Board concedes an in-service injury. However, the Veteran is not competent to opine that the symptoms that he experienced, as well as any injuries from his in-service fall, are related to specific diagnoses. These issues are medically complex, as they require specialized medical education and interpretation of medical test results. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the Veteran is not shown to have appropriate training and expertise, he is not competent to render a persuasive opinion as to such matters. See id. Moreover, while the Veteran reported ongoing left knee pain for approximately 59 years during his February 2017 private presurgical left knee evaluation and in June 2020 correspondence reported that since the early 1960s his left knee would pop or snap every time he would stand after sitting, these reports appear internally inconsistent with his other lay statements of record. For instance, in September 2014 he reported that he did not have problems with his knee until 2012 after injuring it in service and during the December 2017 Board hearing, he testified that he started having knee problems a few years prior. In light of the above reported inconsistencies, the Board assigns less probative weight to the Veteran’s reports of ongoing left problems/pain and finds the contemporaneous medical evidence to be more probative evidence in this case. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (finding that contemporaneous evidence was more probative than history as reported by the claimant). The Board also acknowledges the Veteran’s contention that his current left knee disability is related to service because a VA medical professional told him that he must have injured his left knee and because he only injured his left knee in service and did not injure it after service. See June 2013 Correspondence and December 2014 VA Form 9. While the Veteran, as a layperson, is competent to relay conversations he has had with medical professionals regarding his symptoms and conditions, the Board finds the November 2020 negative nexus opinion more probative evidence as the examiner addressed the Veteran’s contention that his left knee disability is related to a post-traumatic incident and explained, with rationale, why she believed the Veteran’s condition was not related to any past trauma, to include his reported in-service injury. Again, the Board finds this is persuasive evidence against the claim and when weighting the medical and lay evidence of record, including the contemporaneous medical records that do not reflect reports of left knee pain until decades after service, the preponderance of the evidence shows that the Veteran’s current disability is not related to service or any in-service injury. Finally, as noted above, the record does not reflect that the Veteran’s current left knee disability manifested during the Veteran’s active duty service or within one year after his separation from service. As such, presumptive service connection for this disability, on the basis of a chronic disease, is not warranted. Accordingly, the record does not indicate that the Veteran has a left knee disability that is related to service. As the weight of the evidence is against the claim, entitlement to service connection for a left knee disability is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.