Citation Nr: 21009683 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 10-04 291A DATE: February 23, 2021 ORDER Entitlement to service connection for a right knee disability, to include as secondary to service-connected disability, is denied. FINDING OF FACT The Veteran’s diagnosed right knee disability did not originate in service or for years thereafter, is not secondary to service-connected left knee disability and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for right knee disability due to service or service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1972 to October 1974 and from July 1976 to June 1977. The Veteran appealed a July 2009 rating decision by the Agency of Original Jurisdiction (AOJ). In September 2015 and August 2016, the Board of Veteran’s Appeals (Board) remanded the Veteran’s claim for service connection for a right knee disability to the AOJ for further action consistent with the Board’s remand directives. A March 2017 Board decision subsequently denied the Veteran’s entitlement to service connection for his right knee disability, to include as secondary to his service-connected left knee disability. The Veteran appealed that denial to the Court of Appeals for Veteran’s Claims (Court). In November 2018, the Court vacated the March 2017 Board decision and remanded the case to the Board for further proceedings consistent with the Court’s Memorandum Decision. Most recently, the Board remanded the case for a VA examination in October 2020. The case has returned to the Board for review. Entitlement to Service Connection for a Right Knee Disability Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Regulations also provide service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection for arthritis, which is a chronic disease, may be established based on a continuity of symptomatology. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection will be presumed for chronic diseases if manifested to a compensable degree within the year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran was first diagnosed with right knee arthritis in August 2008. The first element under Shedden, current diagnosis, has been met. The Veteran states he ran five miles a day for fitness during service and had to jump from a second story window. There is no evidence to contradict this report and it is certainly reasonable that these events occurred. The second element of Shedden is met as well. As to the third element of Shedden, a causal relationship has not been established. A November 2015 medical opinion states that the Veteran’s right knee arthritis is most likely due to age. The examiner stated current research shows advanced age is one of the strongest risk factors associated with arthritis and that evidence from a number of studies has failed to demonstrate that running increases the risk of arthritis in the knee. Additionally, an October 2016 examination highlighted orthopedic surgical notes indicating that the presence of “early” and “mild” osteoarthritis at the time of examination (May 2016) did “not support the onset over 40 years ago.” It was also observed that there were no x-rays at the time of Veteran’s service or within one year of separation from active service showed onset of right knee arthritis. There again, the examiner stated the Veteran’s arthritis was more likely attributable to age than an in-service injury or event. The Veteran was afforded another VA examination in January 2020. The examiner noted there is no documentation of a right knee injury during service and that the Veteran did not receive treatment for a right knee for many years after his discharge. An October 2020 exam reiterated the previous findings of other exams and once again stated the Veteran’s right knee arthritis is consistent with the Veteran’s age and wear and tear. The medical opinions are based on a substantially accurate review of the evidence of record and have included adequate rationale. The Board notes that the stresses and strains described the Veteran were considered in the November 2015 examination, and that that examiner specifically found that there was no relationship between those events and his active service. It is also noteworthy that four separate opinions have highlighted that there was no evidence of injury in service or disability for many years thereafter, and that the Veteran’s right knee arthritis is consistent with his age. The Veteran’s orthopedic surgeon was even noted to have determined that the presence of “early” and “mild” osteoarthritis at the time of examination (May 2016) did “not support the onset over 40 years ago.” For these reasons, the medical opinions are afforded high probative weight. There are also no competent medical opinions to contrary. Consideration has been given to the Veteran’s personal assertion that running and jumping caused his right knee disability. He is certainly competent to report such events. However, he is not competent to offer an opinion on the etiology of his right knee condition. See Barr v. Nicholson, 21 Vet. App. 303 (2007) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377. The claimed disability at issue is not a condition that is readily amenable to lay diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, their statements are afforded little probative weight. The preponderance of the evidence is against finding that his right knee condition began during service or is otherwise related to an in-service injury, event, or disease.   In the absence of direct service connection, the Veteran contends that his right knee disability is due to his service-connected left knee disability. Specifically, he contends that his service-connected left knee disability has resulted an antalgic gait which has generated or aggravated the arthritis present in his right knee. In support of this claim the Veteran supplied medical literature suggesting disability in one limb may lead to disability in another, specifically when the disability results in an irregular gait. The Veteran’s 2008 diagnosis of right knee arthritis satisfies the first Wallin element, a current diagnosed disability, has been satisfied. Because service connection for left knee disability has been established, the second element of secondary service connection is also satisfied. The Board now turns to the question of nexus. In support of his claim, the Veteran submitted medical treatise excerpts. As noted by the Board in the October 2020 remand, the article submitted by the Veteran specifically notes that “injury in one extremity ‘rarely causes a problem in the opposite or [uninjured] extremity’ except when damage to the leg results in a major displacement of the [center] or gravity of the body while walking, significant shortening of the injured leg, and the abnormal gait pattern has been present for an extended period of time.” However, the United States Court of Appeals for Veterans Claims has held that a medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Wallin v. West., 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus). The Board places little probative value on the literature submitted by the Veteran as it was written to explain general medical principles, and not an opinion regarding the specific facts of this case. The Veteran was afforded an October 2020 VA examination to evaluate the nature and etiology of his right knee disability to include as secondary to a service-connected left knee disability and to consider the contentions raised by the medical literature provided by the Veteran in support of his claim. During the October 2020 exam, the VA examiner opined it is less likely than not that the Veteran’s right knee disability was caused or aggravated by the Veteran’s service-connected left knee disability. The examiner noted arthritis for both knees was first seen around the same time prior to the Veteran’s service-connected left knee replacement. As such, the examiner stated it is unlikely the Veteran’s right knee arthritis originated or was aggravated by the service-connected left knee disability. Furthermore, the examiner noted there was no functional loss of the right knee, and the Veteran did not report any functional loss at the time of the exam. Additionally, the examiner considered the literature provided by the Veteran. The examiner noted the Veteran’s history of antalgic gait as documented in previous exams and treatment records. However, while the Veteran has a history of antalgic gait, the examiner cited instances where his gait was either steady or he had slight antalgic limp without a cane. The fact that the antalgic gait was not constant served as a basis for determining that the left knee disability had not aggravated the Veteran’s right knee arthritis beyond the natural progression associated with age and wear and tear. In summation, in the opinion of the examiner the nature of the Veteran’s right knee arthritis was not caused by the Veteran’s service-connected left knee disability and has not been aggravated by the Veteran’s service-connected left knee disability. The examiner’s opinion was based upon a substantially accurate review of the evidence of record and has included an adequate rationale. Thus, the medical opinion is afforded high probative weight. There is again no competent medical opinion to contradict these findings. The Board has considered the Veteran’s lay statements, the medical literature he provided, and the opinion of the VA examiner. While the Board is sympathetic to the Veteran’s contentions, the Board finds the opinion of the medical examiner more probative than the medical literature provided by the Veteran in support of his claim. In this case, it is less likely that the Veteran’s right knee arthritis is the result of his service-connected left knee injury. Entitlement to service connection for a right knee disability, to include as secondary to the Veteran’s service-connected left knee disability, must also be denied. Additionally, the Board finds that the weight of the evidence is against a finding of a continuity of symptomatology associated with his right knee disability. The Veteran’s right knee disability was first diagnosed in 2008, roughly thirty years after his separation from service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (proper to consider the veteran’s entire medical history, including the lengthy period of absence of complaint with respect to the condition now raised). His June 1977 separation exam did not reflect right knee complaints. The Board thus finds that the weight of the evidence does not support a finding that the Veteran experienced symptoms of a right knee disability continuously since service. The medical nexus element thus cannot be met via a continuity of symptomatology. Furthermore, as right knee arthritis was not shown within one year following the Veteran’s separation from service, presumptive service connection is not warranted. Accordingly, the criteria for right knee disability have not been met, and the Veteran’s claim is denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.N. Bush, 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.