Citation Nr: 21010207 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-41 682 DATE: February 24, 2021 ORDER Entitlement to service connection for a right knee disability, to include as due to a service-connected disease or injury is denied. FINDING OF FACT A right knee disability diagnosed as osteoarthritis was not manifest in service and is not otherwise attributable to service, and is not caused or aggravated by a service-connected disability; arthritis did not manifest within one year of separation from active service. CONCLUSION OF LAW A right knee disability was not incurred or aggravated during service, nor may it be presumed to have been incurred therein, to include as secondary to service-connected left knee. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty as a commissioned officer in the U.S. Army from July 1975 to July 1977 and from September 1980 to June 1992. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge sitting at the RO in March 2018; a transcript has been associated with the claims file. The Board most recently remanded this issue in October 2020 to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran 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” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service-connected. 38 C.F.R. § 3.310(b). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a right knee disability, to include as due to a service-connected disease or injury The Veteran contends that he is entitled to service connection for a right knee disability. The Veteran’s service treatment records (STRs) are associated with the claims file. The Veteran’s STRs document a motor vehicle accident (MVA) that occurred in October 1976. The Veteran reported neck and left knee pain. The Veteran was diagnosed with a neck strain. Subsequent treatment from the accident reflects that the Veteran experienced shoulder and neck pain. The Veteran sought treatment specifically for left knee pain in June 1984. A July 1984 examination determined that the Veteran’s lower extremities were normal. September 1986 records show that the Veteran denied any chronic medical issues. The Veteran completed a Report of Medical History form in March 1988 and explicitly denied trick or locked knee, neuritis, or arthritis and reported that he was in excellent health. A corresponding examination found his lower extremities to be normal. An April 1992 separation examination is also in the claims file. The examination determined that the Veteran’s lower extremities were normal. On the corresponding Report of Medical History form, the Veteran reported pain and swelling in his knees following exercise, as well as trick or locked left knee symptoms. November and December 1997 private treatment records reflects that the Veteran sought medical attention for his left knee following a basketball injury. He reported “no real history” of trauma. He did not mention any right knee pain. November 2010 private treatment records reflect that the Veteran’s right lower extremity did not reveal joint or limb tenderness to palpation, no edema and no ecchymosis. He denied joint pain, swelling, weakness, arthralgias, or myalgias. The Veteran sought private treatment for back and hip pain in March 2011 and May 2011. He did not report knee pain and explicitly denied joint pain, arthralgias, joint swelling, muscle pain, myalgias, or muscle cramps. In October 2011 correspondence, the Veteran stated that his had a bilateral knee injury due to an in-service MVA. VA treatment records reflect treatment for bilateral knee pain from this point forward. January 2012 private treatment records reflect that the Veteran’s gait was normal and examination of his joints, bones, and muscles were normal. In February 2012 correspondence, the Veteran reported that he had been in a MVA in October 1976 and injured his, “knee, back, shoulder, neck and ankle.” In February 2012 correspondence, the Veteran reported that his bilateral knee pain began in service and had been a “continual problem.” March 2013 private treatment records reflect that the Veteran had bilateral knee osteoarthritis. In June 2013 correspondence, the Veteran clarified that following the October 1976 MVA, he was treated for a left knee injury. He stated that the in-service daily running and marching aggravated his both of his knees. May 2014 private treatment records reflect that the Veteran was diagnosed with bilateral patella chondromalacia. The Veteran attended a VA examination in August 2014. Following an examination and review of the claims file, the VA examiner determined that the Veteran’s knee condition was not caused by the October 1976 MVA or the extreme physical training during his 14 years of service. In November 2014 correspondence, the Veteran stated that it was unreasonable to conclude that the daily running and marches did not cause any damage to his joints. During October 2015 VA treatment, the Veteran attributed his knee disabilities to an active duty injury in 1979. On his February 2016 VA Form-9, the Veteran stated that several doctors told him that if someone has one bad knee it causes more pressure and wear on the undamaged knee. The Veteran attended a Board hearing in March 2018. He testified that he served as a training officer for 14 months and that it was a very physically demanding role. He believed the wear and tear in the military caused his knee disabilities. He clarified that only his left knee was injured during the October 1976 MVA. The Veteran stated that he did not always seek treatment for pain given his role as a company commander. In March 2018 correspondence, the Veteran stated that his bilateral knee disabilities were not from normal wear and tear, but instead caused by the “physical accident” and “extreme physical requirements” of the Army. The Veteran submitted a private opinion in March 2018 which determined that if the Veteran’s had in fact been in an in-service MVA, it could have started the process and lead to his current knee conditions. The Veteran attended another VA examination in September 2019. He told the examiner about the 1976 MVA and excessive repetitive use in service as a basic training officer. Following an examination and review of the claims file, the examiner determined that the Veteran’s right knee degenerative arthritis was less likely than not related to his service. He explained that the Veteran’s STRs did not specifically reflect treatment for right knee pain or treatment. Instead, the STRs revealed treatment for left knee pain. The examiner explained that the Veteran sought treatment several times since his separation for his left knee, and it wasn’t for many years following discharge that the Veteran reported right knee pain. Another VA opinion was obtained in November 2020. Following a review of the claims file, the VA examiner explained that the Veteran’s right knee disability was not caused or aggravated by the Veteran’s left knee disability because arthritis does not transfer from one joint to another and arises independently in any given joint. He went on to explain that simple gait accomodation for the left knee would not cause or aggravate arthritis in the right knee, with the rare exceptions of chronic, exaggerated gaits or a leg length discrepancy. He therefore concluded that it was less likely than not that the Veteran’s right knee disability was caused or aggravated by his left knee disability. In December 2020 correspondence, the Veteran stated that both his right and left knees endured the same conditions in service. He argued that it didn’t make sense for his left knee to be service-connected and his right knee not to be service-connected. After consideration of all the evidence of record the Board finds that the weight of the evidence is against finding that service connection for a right knee disability is warranted. The Board concludes that service connection for a right knee disability is not warranted as the Veteran’s current right knee disability was not caused by service. The Veteran’s lay statements and testimony regarding his current symptoms are credible. However, his report of continued pain since his separation warrants less probative weight as he denied any right knee abnormalities several times. While the Veteran reports that his current right knee disability is related to his in-service MVA and excessive use, and his ongoing symptomology is related to his current right knee disability and service, the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service and as such the Veteran is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and credible than the lay opinions of record. The competent medical evidence, including specifically the VA examinations taken cumulatively, is entitled to significant probative weight. The examiners noted an extensive and thorough review of the claims file including the Veteran’s in-service injury, lay statements and current right knee symptoms. The August 2014 and October 2019 VA examiners found that it is less likely than not that the Veteran’s currently diagnosed right knee condition was incurred in or caused by the Veteran’s service, to include the excessive physical use from running and marching or the 1976 MVA. The examiners noted that the Veteran did not seek treatment for right knee pain during his service, but did report left knee pain. Further, examiners determined that the post-service treatment records revealing explicit denials of right lower extremity pain or issues to be highly persuasive. The October 2019 VA examiner noted that the evidence of record supports that there were no documented problems with his right knee until the Veteran filed a claim for compensation, which was 20 years after separation from service. Additionally, the record reflects that the Veteran did not report any symptoms when there were opportunities to report any chronic manifestations for evaluation at earlier times. The Board finds it highly probative that the Veteran sought treatment for left knee pain several times, both in and out of service, and failed to mention right knee pain. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Reporting of a long history of chronic pain since service would have been important to his treatment after the post-service excessive use. Therefore, the Board assigns low probative weight to the lay evidence of continuity since service. The Board has considered the March 2018 private opinion which states that “if” the Veteran did have an in-service MVA, it “could have started” the process in his knees. The Board does not afford this opinion any probative value. The private physician clearly did not review the STRs, which only show a left knee injury. Furthermore, the language used does not suggest that the private physician believed the MVA more likely than not cause the right knee condition. The Board has also considered the Veteran’s argument that both his right and left knees endured the same conditions in service, and therefore it only makes sense that his right knee should also be service-connected. The Board disagrees. The record clearly reflects that the Veteran injured his left knee and not his right knee in the 1976 MVA. Following separation, the Veteran received treatment for his left knee specifically. Accordingly, the record reflects that the Veteran had an in-service left knee injury, and continued to receive treatment for his left knee following his separation. This is not the case for the right knee. The STRs do not reflect that the right knee was injured in the 1976 MVA, and the Veteran did not report any right knee pain in post service treatment for his left knee until 2011. The Veteran reported knee pain following exercise during his April 1992 report of medical history in preparation for separation. However, the Board finds it highly probative that the Veteran sought treatment several times in service for left knee pain and never mentioned right knee pain. Furthermore, his right knee was determined to be normal at his separation examination. Again, as pointed out above, he denied any right knee pain for nearly 20 years following his discharge. The Board has considered the Veteran’s lay statements and testimony however, the Board gives more probative weight to the VA examinations. As such the Board finds the Veteran’s current right knee arthritis is less likely than not caused by active service. Additionally, there is no evidence that the Veteran’s right knee arthritis manifested to a compensable degree within a year of service to allow for presumptive service connection for a chronic disease. This is supported by the November 2010 private treatment record, which reflects that the Veteran denied joint pain, swelling, weakness, arthralgias, or myalgias. There is also no probative evidence of record that the Veteran’s right knee arthritis is caused or aggravated by his left knee disability. Considering the evidence of record directly applicable to this claim, the VA November 2020 opinion is detailed and well supported by not only reference to the Veteran’s record but also to accepted medical literature. Provided the opinion includes an adequate statement of reasons or bases, the Board may favor one opinion over another. Wray v. Brown, 7 Vet. App. 488 (1995). Because it is informed by knowledge of the Veteran’s health as evidenced in the report, is not inconsistent with the documented record, and cites to critical facts in the record, the Board finds the November 2020 VA opinion to be highly credible and probative of the issue of secondary service connection. For these reasons, the examiner’s conclusions in November 2020 VA opinion are found to be probative evidence of record regarding secondary service connection, and they are unfortunately not favorable to the claim. (continued next page) In conclusion, the Board finds that the weight of competent and credible evidence is against the Veteran’s claim for service connection for a right knee disability. The benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.