Citation Nr: 21010134 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 13-05 262 DATE: February 24, 2021 ORDER Entitlement to service connection for left knee disorder is denied. Entitlement to service connection for right knee disorder is denied. Entitlement to service connection for chronic prostatitis is dismissed. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a left knee disorder began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a right knee disorder began during active service, or is otherwise related to an in-service injury or disease. 3. The claim for entitlement to service connection for chronic prostatitis was granted in a December 2020 rating decision with a full grant of benefits. The Veteran has not appealed this finding. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for right knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for dismissal of entitlement to service connection for chronic prostatitis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United Army from June 1968 to July 1978 and from July 1978 to October 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2011 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board issued a remand in September 2019 instructing the RO to obtain outstanding medical records and obtain a VA examination to determine the nature and etiology of his disabilities. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained outstanding treatment records and December 2020 VA examinations. The Board finds the RO substantially complied with the September 2019 remand directives. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for left knee disorder. 2. Entitlement to service connection for right knee disorder. The Board addresses the service connection claims together as they stem from the same factual background and are addressed under the same legal basis. The Veteran contends that his bilateral knee disorder developed as a result of his military service. In a May 2008 statement, the Veteran wrote that he injured his knees while changing a 2-1/2 ton truck tire while assigned to D company 801st Maintenance Battalion, 101st 'Air Bone Division, at Camp Evans, Vietnam. Safety cages, used to put air in tires, came years after his tour in Vietnam. He states that he developed arthritis in his knees that required a five day stay in 121 hospital Yong San, Korea, in 1976. He continued to have problems with his knees and took meds for pain. See also, February 2012 Regional Office Hearing. The Veteran’s service treatment records (STR) showed that he injured his left knee in September 1969 while changing a truck tire. He later received treatment for a boil on his knee that caused his knee to swell in November 1976 which was assessed as cellulitis versus rule out septic arthritis. It was indicated that he would be given a prescription for septic arthritis. These notations are sufficient for meeting the requirement of an in-service injury, event, or illness for the purpose of service connection. In March 2008, the Veteran’s physician, Dr. J.Q., submitted a medical summary of the Veteran’s bilateral knee treatment. The Veteran was diagnosed with bilateral degenerative joint disease. Based on the review the Veteran’s STR, Dr. J.Q. opined that the Veteran’s bilateral knee disabilities were a direct result of his military service, which was aggravated by complications of septic joint arthritis. This notation is sufficient for meeting the requirement of a current disability for The Veteran was afforded several private and VA examinations throughout the period of appeal. However, only the examinations that provided an opinion on the etiology of his disabilities will be included in this decision. In the November 2009 examination, the examiner reported that the Veteran was treated for knee infections during his active service, but the infection was confined to the skin areas above the patella of the knee. It did not spread to the joint spaces. The examiner also stated that any present radiologic findings were therefore unrelated to the infections during his military service. In the October 2010 examination, the examiner opined that the Veteran’s bilateral knee disorders were caused by or a result of his in-service treatment for a left knee injury or bilateral knee infections. The examiner acknowledged the in-service injury, restated the details of the November 2009 examination, and added that the Veteran was provided medications for 3 days after his in-service injury. No other consultations were made. In the July 2012 examination, the examiner opined that the Veteran’s bilateral knee disorders were less likely than not incurred in or caused by the Veteran’s military service. The examiner acknowledged that the Veteran was treated for a left knee injury after changing a truck tire and treated for bilateral knee infections. The examiner reported that knee infections usually affect individuals with kneeling occupations and, if adequately treated with antibiotics, the infection does not result in destruction or degeneration of the knee joint. The Veteran submitted a private medical opinion from Dr. J.D. dated October 2010. The physician stated that the Veteran’s active service had taken its toll on the Veteran’s knees and the record showed the Veteran experienced knee pain during service. A June 2011 private medical opinion written by Dr. E.D. state that the Veteran’s bilateral knee disorders had more likely than not begun during his active service. His disorders did not develop overnight; they developed gradually. Another June 2011 private medical opinion written by Dr. Q. stated that it was unfair to overlook the cumulative effects of the Veteran’s military service on his left knee. The episode of treatment of septic arthritis in service was cited as the cause of the Veteran’s current left knee disorder. In December 2018, the Court of Appeals for Veterans Claims (CAVC) issued a Joint Motion for Partial Remand (JMPR). The parties to the JMPR found that the Board did not adequately consider the “probative value” of private medical opinions which noted that the Veteran had been diagnosed with septic arthritis, when he had been treated for knee infections. See December 19, CAVC Decision, p.at 4. Referring to a Mayo Clinic on-line definition of septic arthritis infra, the parties concurred that “knee infections” fall with the ambit of septic arthritis. Id. As the Veteran was treated for “infection of the joint” during active duty service (referencing a November 2, 1976 service treatment record—STR—which discloses a prescription for septic arthritis), the Board failed to provide an adequate statement of reasons or bases which both assesses and weighs the aforementioned private medical opinions, in light of the definition of septic arthritis. Id. Additionally, the Veteran contends that the Board overlooked “favorable” historical knee evidence from February 23, 1994 and April 1, 1994. In the case of the former, the Veteran argues that a consultation report, referenced by the Board in its decision, includes an “observation of crepitus.” In the case of the latter. a follow-up report includes a diagnosis of bilateral patellofemoral joint syndrome (PFJS). Id. Therefore, in compliance with the JMPR, the Board remanded the claim for a new VA examination. A November 2020 VA examination was obtained and an adequate medical opinion was provided. The Veteran’s disability of degenerative arthritis was acknowledged and noted in the examination report to have a diagnosis date of November 2009. The examiner also acknowledged that the Veteran’s left knee was injured by changing a truck tire in service and the Veteran sought care the following day as pain continued. The Veteran stated that when he was sent to the hospital for his left knee "septic arthritis" that he was having problems with his right knee as well; however, the left knee was worse "so they focused on the left knee even though my right knee was in bad shape as well." The examiner wrote that the medical records failed to support that veteran’s claimed left knee disorder was at least as likely as not incurred or caused by the complaints and treatment of knee pain during service. The veteran’s medical records indicate that he received care for knee pain in 1969 & 1970. There was no documented care for evaluation, treatment, or diagnosis of a knee condition or complaints of knee pain from 1970 to 1976 (a six-year period). The next entry for care for knee pain appears to be 1989 - a 13-year lapse of time with no documented care. The next documentation of care was not until 2008 - a 19-year lapse of time without documentation of care for knee pain. A medical certificate dated November 5, 2009, indicates that veteran had been diagnosed with bilateral knee osteoarthritis/DJD. The knee instability was a progression of the DJD - - as the bone structure broke down - the muscles and ligaments are not well supported anymore and become stretched/loose or tear. In 2009, this places the veteran’s age at age 60, which is more consistent with a diagnosis of osteoarthritis/DJD due to the aging process versus trauma/injury to a joint. Generally, osteoarthritis due to trauma is diagnosed before the age of 40. The February 1994 record from Orthopedic and Podiatry services shows a request for an evaluation of the Veteran’s knees because of his history of septic arthritis of the knees. A bone scan revealed no definite abnormality in three phase bone scans of the knee joints. The Board finds the November 2020 VA medical opinion which weighs against the claim to be the most convincing as the examiner offered an extensive and detailed rationale. The Board acknowledges the Veteran's contention that he has a left and right knee disorder that is etiologically attributable to his service-connected disabilities. The Veteran, as a lay person, is competent to report symptoms that he observed; however, he is not competent to diagnose and provide the etiology of his knee disorders for VA compensation purposes. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006). However, the available evidence of record answered this question and failed to support a causal connection between the Veteran’s knee disorders and his military service. While the Veteran was treated for an acute left knee pain and bilateral knee infections during service, he later denied having any knee symptoms in December 1980, April 1986, October 1991, and September 1992. In addition, at physical examinations in December 1980, April 1986, October 1991, and September 1992, the examiner marked the Veteran’s knees as normal. After service, there was no complaint of a knee disorder during the year after separation. The VA examinations individually and collectively found that the Veteran’s knee disorders were not related to his military service. Overall, the evidence of record compels the Board to find that service connection for left and right knee disorder is not warranted. In reaching the above conclusions, 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 the instant appeal. See 38 U.S.C. § 5107 (b). In reaching the above conclusions, 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 the instant appeal. See 38 U.S.C. § 5107 (b). 3. Entitlement to service connection for chronic prostatitis. In September 2019, the Board remanded the claim of entitlement to service connection for chronic prostatitis. While on remand, the Veteran’s claim was granted in a December 2020 rating decision. The Veteran was assigned a 0 percent rating effective August 27, 2010, and a 40 percent rating effective November 30, 2020. The Veteran was provided a December 2020 notification letter informing him that the decision was considered a full grant of benefit sought on appeal. The Veteran nor his representative has submitted correspondence disagreeing with the finding. See e.g., February 2021 Appellate Brief (only left and right knee claims included). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. In this case, there is no claim in controversy. Therefore, entitlement to service connection for chronic prostatitis is dismissed. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.