Citation Nr: 21010453 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-30 469 DATE: February 24, 2021 ORDER Entitlement to service connection for a right knee disability is denied. FINDINGS OF FACT 1. The Veteran's service treatment records (STRs) are unremarkable for complaints referable to his right knee; there also is no clinical evidence of a diagnosed right knee disability for more than four decades after his separation from service. 2. Moreover, the most probative (meaning most competent and credible) evidence is against finding that he has a right knee disability that is etiologically related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a right knee disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from December 1954 to December 1956. This appeal to the Board of Veterans’ Appeals (Board) is from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified in support of this claim during a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. (The transcript incorrectly lists the hearing date as in November 2018.) In February 2019, the Board reopened this claim based on new and material evidence. But, rather than immediately readjudicating this claim on its underlying merits, the Board instead then proceeded to remand this claim back to the Agency of Original Jurisdiction (AOJ) for necessary further development and consideration – including obtaining relevant records and a medical nexus opinion concerning the origin of this disability, particularly in terms of whether related or attributable to the Veteran’s military service. There since has been the required compliance with the remand directives, certainly the acceptable substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for a right knee disability The Veteran has had a total right knee replacement, but, for the reasons and bases that will be discussed, the Board finds that service connection is not warranted for his right knee disability since not attributable to his military service.   In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation (“nexus”) between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Also, pursuant to 38 C.F.R. § 3.303(b), if a chronic disease, per se (such as degenerative joint disease, i.e., arthritis) according to § 3.309(a), a Veteran may establish the second and third elements of service connection by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a Veteran can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Initially, the Board notes that the claims file contains correspondence indicating the Veteran’s service treatment records (STRs), if at the National Personnel Records Center (NPRC) in 1973, are presumed to have been destroyed in a fire there; however, and importantly, his STRs were not at the NPRC in 1973 because they already were with VA due to his 1956 claim for compensation. His STRs were not destroyed and are currently associated with his claims file. The Veteran’s STRs are entirely unremarkable for complaints referable to his right knee. A February 1955 STR shows he reported pain over his left patellar (kneecap), which was tender with pressure; there was no mention or notation as to his right knee or any then current impairment referable to this other knee. Subsequent STRs show complaints of nausea (September 1955), a hurt back while loading a truck (November 1955), dermatitis (December 1955), nervousness (January 1956), a rash (June 1956), a hand contusion (June 1956), and a hand injury (September 1956). Yet, the STRs are entirely unremarkable for complaints referable to the right knee or of either knee (right or left) after February 1955. If the Veteran had sustained a significant injury to his right knee during his service, including involving chronic (i.e., permanent) symptoms and/or having it placed in a cast or using crutches as he has contended, it stands to reason there would have been some record or mention or documentation of that in his STRs – especially given the other occasions that he voiced complaints regarding a variety of then current ailments. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Veteran’s Report of Medical Examination for separation from service reflects that his lower extremities were normal, so including his right knee. He separated from service on December 11, 1956, and rather immediately filed his initial claim for VA compensation later that same month. At that time, he stated that he had “injured both knees [and] right shoulder. Approx. February 1955” at Fort Riley, Kansas, Camp Funston. This February 1955 date at Fort Riley corresponds with the STR noted above; however, that STR was limited to only left knee complaints. A post-service January/February 1957 VA examination report shows the Veteran indicated his knees hurt when he walked. He stated that he was going to play baseball after he got out of the Army, but the he could not “because of the injury sustained while in the army”. Upon objective clinical examination, however, there were no clinical findings of a right knee disability, and an X-ray was negative. The examiner found no pathology to render a diagnosis as concerning the right knee, although there was regarding the left knee. The earliest evidence of a right knee disability, or of post-service complaints, is not for several decades after the Veteran’s separation from service. He established care with a VA facility in December 2002, and at that time he reported having had bilateral knee arthroscopy done in the past. He denied any then current joint or bone pain. A June 2003 record notes that he walks 2.5 miles daily. It also was noted that he was obese but was losing weight. A December 2003 VA clinical record indicates he reported being unable to exercise regularly because of knee problems and was then currently on workman’s compensation disability. As he was walking consistently in June 2003 for exercise but was unable to exercise in December of that same year and was on workman’s compensation at that time, it is reasonable to assume that he possibly had sustained an intervening injury to his knee between June and December 2003. A June 2004 VA clinical record shows he reported that, while running in service, he injured his knee when he tripped over another soldier’s rifle, also that his knee was iced, and that he was placed on light duty restriction until he was able to return to regular duty. He reported that he had never sought service connection for consequent disability, but that he had been suffering with it all his life. A July 2004 VA record reflects that he had had a right knee meniscus repair in April 2004. In December 2007, he had a total knee replacement (TKR). In October 2014, the Veteran filed a claim for service connection for his right knee disability and stated that that it was “injured in Korean war”. See 2014 VA 21-526 EZ). However, there is no competent and credible (so ultimately probative) evidence that he served in Korea during wartime. Thus, further discussion of an injury in combat or in Korea is not required. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The Veteran testified during his January 2019 hearing before this Board that he had injured his right knee when he fell in Hungary, that he was given light duty while in Germany, and that his right knee was placed in a cast. In February 2019 correspondence, he explained that he had not injured his knee in Kansas (as claimed in 1956). Rather, he clarified that, while in Europe, another soldier dropped his rifle and the Veteran’s foot got caught up in the sling of the weapon. He asserted that, since then, “his life has been a painful existence” and that, although his captain asked him if he wanted “out”, he wanted to stay with his fellow soldiers.   The claims file includes 2015, 2017, and 2019 opinions from Dr. S.M. linking the current right knee disability to the Veteran’s military service; but these opinions fail to provide adequate rationale – which is where most of the probative value of a medical opinion is derived, and do not reflect that Dr. S.M. was aware of the 1956 military examination noting no relevant abnormalities, or a 1957 normal VA examination noting no diagnosis, or a post-service workman’s compensation injury and meniscus repair. Dr. S.M.’s opinions, therefore, are insufficient grounds upon which to grant service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The claims file also includes March 2020 correspondence from Dr. A.E. Dr. A.E. stated that the Veteran related that, during the Korean conflict in 1956, he tripped over a rifle and had immediate pain, swelling, and inability to bear weight. He reported that he was treated with a wrap and crutches with restricted activity for over one month, and subsequently treated with medication and injections, but the knee was never the same. Dr. A.E. further opined that it is well established that a trauma to the joint, such as described by the Veteran, can directly lead to the development of post-traumatic arthritis and that this condition can often take years to reach its end stage when a surgery is needed. Dr. A.E. surmised that, given the Veteran’s history, it is more likely than not that his arthritis is due to his injury in 1956. Dr. A.E. added that he had done a successful total knee replacement in 2006; however, the surgery records indicate it was in December 2007; thus, it does not appear that Dr. A.E. reviewed records when rendering his opinion. The probative value of medical opinions is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guarneri v. Brown, 4 Vet. App. 467, 470-71 (1993). There is no requirement that additional evidentiary weight be given to the opinion of a medical provider who treats a Veteran; courts have repeatedly declined to adopt the "treating physician rule." See White v. Principe, 243 F.3d 1378, 1381 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The opinions of the private clinicians are based on the Veteran’s less than credible self-reported history as to a significant injury in service with chronic residuals. Again, though, the Board highlights that he was clinically seen in service, including in 1956, and there are no STRs noting complaints referable to his right knee (as opposed to left knee). He was seen in January 1956 for nervousness, on two occasions in June 1956 for a rash, again in June 1956 for a hand contusion, and in September 1956 for a finger/hand injury. His December 1956 Physical Condition form states that, since his September 1956 examination, there had been no change in his physical condition – except for an injured finger on his right hand. Based on the notations in his STRs, and the dates of treatment in 1956, the Board finds that, if he had been placed on crutches and given restriction of duties for a month or more, it seems highly probable that it would have been noted in his STRs, but it was not. The Veteran is competent to state that he injured his right knee in service and that he has had right knee symptoms ever since his separation from service; however, competency and credibility are not the same thing. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The Board sees the Veteran has been observed to have memory problems (see February 2007, July 2010, and August 2010 VA clinical records). In addition, he has stated that he first sought post-service treatment for his knee in approximately 2007, when he had the TKR; but the evidence reflects that he had an arthroscopy sometime prior to December 2002, and an arthroscopy meniscus repair in April 2004. He also has stated that he is a Vietnam War Veteran, which is inaccurate based on his years of service, that his knee was injured in the Korea War, which is inaccurate as well, and he has given conflicting recounts of when he allegedly injured his knee (February 1955 in Kansas or in 1956 in Hungary). The Board resultantly finds that any allegation of a significant injury to the right knee in service is less than credible, given the record as a whole. In making this lack of credibility finding, the Board is not insinuating that the Veteran has any intent to deceive. Rather, he simply may be mistaken in his recollections due to the fallibility of human memory for events that occurred many years, indeed many decades, ago. Opinions, such as the private opinions mentioned, which are not based on a complete review of the pertinent evidence lack significant probative value. The mere recitation of a Veteran's self-reported lay history does not constitute competent medical evidence of diagnosis or causality. See LeShore v. Brown, 8 Vet. App. 406 (1996). In addition, medical opinions premised upon an unsubstantiated account of a claimant are of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). In essence, the private opinions lack probative value because they apparently rely mostly, if not entirely, on a history recounted by the Veteran that has not been shown to be true. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his right knee disability, himself, including in terms of whether related or attributable to anything that occurred during his time in the military. This determination is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). The claims file includes an October 2020 Disability Benefits Questionnaire (DBQ) containing a contrary medical opinion it is less likely than not the Veteran has a current right knee disability causally related to his service. This examiner’s opinion was based, in part, on the lack of STRs noting complaints in service, the normal x-ray of this knee in 1957, and the lack of clinical records noting complaints even during the next four decades. It is true the mere absence of evidence, such as during those many intervening years (in fact, more than 40 years), does not necessarily equate to unfavorable evidence. Indeed, there are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Federal Circuit Court also has held however that, while the absence of contemporaneous records (such as treatment records) does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 (“Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.”). Moreover, although the Board cannot reject a claimant’s statements merely because he is an interested party, the claimant’s interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that “the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias....”). Here, the record as a whole does not support the Veteran’s contention of chronic symptoms in service and continuity of symptoms since his separation from service. In this regard, the Board also points out that clinical records document he reported having played professional baseball for a Triple A team for three years, which would have been post service. If he had experienced chronic symptoms since service, it seems unlikely to the Board that he would have been able to play baseball at a level just one below the major leagues (which necessarily involves running and sliding) for three years. If, in the alternative, he did not play professional baseball for three years, post-service, but nevertheless reported such, it again would tend to show that he is less than credible in his recollections.   In sum, the Veteran’s STRs are unremarkable for complaints referable to his right knee, and, although he complained of right knee pain shortly after his separation from service, he had a normal examination that included normal X-ray findings, and there are no complaints referable to this knee for the next four decades. The October 2020 DBQ opinion is against a finding of entitlement to service connection for any current right knee disability. And, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.