Citation Nr: 21010854 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 10-41 146 DATE: February 25, 2021 ORDER Entitlement to service connection for a left knee disorder is denied. FINDING OF FACT The preponderance of the evidence shows that a left knee disorder is not present in service or until many years thereafter and it is not related to service or to an incident of service origin. CONCLUSION OF LAW The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 1101, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from August 1966 to August 1968. In February 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In November 2011 the Board of Veterans’ Appeal (Board), among other things, remanded the above issues. In a May 2014 decision, the Board denied service connection for an acquired psychiatric disorder including posttraumatic stress disorder (PTSD) and a left foot disorder as well as remanded the claim of service connection for a left knee disorder. As to the acquired psychiatric disorder including PTSD and the left foot disorder claims, the Veteran appealed the May 2014 decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2015 decision issued by Judge Bartley, the Court vacated and remanded the Board decision to the extent that it denied the acquired psychiatric disorder including PTSD and the left foot disorder claims. In April 2016, the Board remanded the claims of service connection for an acquired psychiatric disorder including PTSD and a left foot disorder to comply with the Court’s May 2014 decision. In July 2018, the Board granted service connection for an acquired psychiatric disorder including PTSD and again remanded the claims of service connection for a left knee disorder and a left foot disorder. In July 2020, the Board denied the claim of service connection for a left foot disorder and again remanded the claims of service connection for a left knee disorder. Lastly, the Board notes that additional VA treatment records were added to the claims file since the RO issued the December 2020 VA treatment records. Moreover, some of these records document the Veteran’s post-service complaints, diagnoses, or treatment for a left knee disorder in 2020 and 2021-over 50 years after the Veteran’s 1968 separation from active duty. Tellingly, and as will be discussed in more detail below, the October 2020 VA examination put to rest any question in the record as to whether the Veteran has a post-service left knee disorder. Therefore, the Board does not find these additional VA treatment records pertinent evidence because they just continued to show something that is already known-the Veteran has a current disability. Accordingly, the Board finds that it need not further delay adjudication of this appeal to obtain a waiver of agency of original jurisdiction (AOJ) review of these VA treatment records or remand for AOJ review. See 38 C.F.R. § 19.31 (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). Post-Remand Compliance As to the post-remand development of the left knee disorder, the Board finds that it substantially complied with the Remands. See 38 U.S.C. § 5103; Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order). The Board has reached this conclusion because while the appeal was in remand status all identified and available VA and private treatment records were obtained and associated with the record. The Board has also reached this conclusion because the post-remand record shows that in October 2020 and December 2000 the regional office (RO) obtained new opinions as the diagnosis of the Veteran’s left knee disorder as well as its’ etiology that, unlike the June 2020 VA examination which the Board found inadequate in the July 2020 Remand, included a clear opinion as to why the Veteran’s has a current left knee disorder and why it is not due to his military service and the opinion was provided without any conflicting statements. The Board has also reached this conclusion because the October 2020 and December 2000 VA opinions are supported by citation to the service treatment records that documented the Veteran’s complaints and treatment for a left knee injury but with normal orthopedic findings, the lack of medical records documenting treatment for a left knee problems for more than 40 years after service, and the appellant’s competent and credible lay claims regarding observable symptomatology as well as because it is supported by medical reasoning. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence 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 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 [Board as] adjudicators...”); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board’s statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran’s position). The Service Connection Claim The Veteran claims he has had a left knee disorder ever since he injured his knee while on active duty more than 50 years ago. Specifically, in his testimony before the Board in February 2011 the Veteran asserts that he originally injured his left knee in service when he slipped on wet stirs coming out the barracks and it came out of place. He thereafter testified that while on active duty it slipped out of place two more times and he had frequent problems with swelling. He thereafter testified that he continued to have problems with the left knee swelling and slipping out of place since that time. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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 to a current disability, the post-service record shows the Veteran being diagnosed with left knee arthritis. See, e.g., VA examination dated in October 2020. Next, the Board notes that an October 1966 service treatment record documents the Veteran’s treatment for left knee pain and swelling due to striking the knee the day before while in the field. Likewise, a January 1967 service treatment record noted that the Veteran fell and hurt his leg yesterday. Similarly, a June 1968 service treatment record documents the Veteran’s treatment for his left knee slipping out of place since he first injured it 5 months earlier. Moreover, the records show the Veteran’s left knee being X-rayed in June 1968 because of pain and a history of the it slipping out of place. Additionally, at the June 1968 separation examination the Veteran reported a history of a trick or a locked knee as well as a history of the left knee slipping out of place. The Board also finds that the Veteran is competent to report on the events he experiences while on active duty as well as manifestations of his disability, such as pain, instability, and swelling. See Davidson, supra. However, when seen in October 1966 for the left knee problems the impression was no significant injury. Likewise, when seen in January 1967 nothing was said about the left knee but instead the examination only discussed the left ankle. Similarly, when seen in June 1968 the examiner opined that there was no objective evidence of anything wrong with the left knee. Moreover, the June 1968 left knee X-ray was negative despite the pain and the history of the knee slipping out of place. Furthermore, the subsequent and earlier service treatment records, including the June 1968 separation examination, are otherwise negative for complaints, treatment for symptoms, and/or a diagnosis of a left knee disorder. In fact, while at the June 1968 separation examination the Veteran reported a history of a trick or a locked knee, it was opined that his lower extremities were normal despite the history of the joint slipping out of place and this medical opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Accordingly, the Board finds, as the June 1968 separation examiner found, that the Veteran’s left knee injury and symptoms were transient in nature and resolved by the time he separated from service. See Owens, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused his current left knee disorders despite the injury and symptoms seen on a few occasions while on active duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In this regard, the Board finds that the detailed service record, which documents the Veteran’s complaints, diagnoses, or treatment for a number of other problems and the negative findings by the examiners when the Veteran sought treatment for his left knee pain and slipping as well as the negative left knee X-ray, weights against his current claim. See Owens, supra. Overall, the Board must finds the service records provide highly probative evidence against this claim. Similarly, the post-service record does not show the Veteran being diagnosed with arthritis in the left knee in the first post-service year. Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) do not help the Veteran establish service connection for a left knee disability. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. More importantly, the record does not show that the Veteran had a continued problem with a left knee disorder in and since service. In fact, as noted above, the October 1966 and June 1968 examinations were negative for a diagnosis of a left knee disorder, the June 1968 left knee X-ray was negative, and the June 1968 separation examiner opined that his lower extremities were normal; providing highly probative evidence against the claim. Likewise, and more importantly, the post-service is negative for any complaints, diagnoses, or treatment for a left knee disorders until, at the earliest, 2004-over 35 after his 1968 separation from active duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b); Also see VA treatment record dated in May 2004; Dr. Edward C. Rabbitt letter dated in July 2010. This fact would seem to support the findings of the examiner in service who provided evidence against the claim, as noted above. Given this record, the Board finds that the service medical records and the post-service medical evidence provides highly probative evidence, overall, against this claim. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with a left knee disorder in and since service despite the documented injury and symptoms seen on a few occasions while on active duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b). For the reasons noted above, the Board finds that the post-service medical records provide highly probative evidence against this claim. The Board also finds that the preponderance of the evidence shows that the Veteran’s current left knee disorder is not due to his military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, in July 2010 Dr. Rabbitt opined that the Veteran’s currently left knee disorder is at least as likely as not related to injuries while in the service. However, the Board finds that this opinion lacks much probative value because, while service treatment records document the Veteran’s complaints and treatment for left knee problem on several occasions, Dr. Rabbitt does not provide any rational for his conclusion. See Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). The Board also finds that Dr. Rabbitt’s opinion lacks probative value because he does not account for the fact that neither the October 1966 nor the June 1968 service treatment records that documented the Veteran’s treatment for his left knee found/diagnosed any disability (i.e., in October 1966 it was reported that the impression was no significant injury and in June 1968 it was opined that there was no objective evidence of anything), the June 1968 left knee X-ray was negative, the June 1968 separation examiner finding his lower extremities were normal despite the Veteran’s claim of his knee slipping, and the post-service record being negative for complaints, diagnoses, or treatment for a knee disorder until at least 35 years after service. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). On the other hand, the October 2020 and December 2000 VA examiners opined that the Veteran’s left knee disorders was not due to his military service. Moreover, the Board finds the VA examiners opinions both competent and credible as well as the most probative evidence of record because, unlike Dr. Rabbitt’s opinion, they were provided after a review of the record on appeal as well as supported by citation to evidence found in the record including the instances of treatment for a left knee injury while on active duty, the negative left knee diagnoses and X-ray while on active duty, and the many decade gap between the Veteran’s separation from service and hid first seeking medical treat for the left knee post-service. See Owens, supra; Guerrieri, supra. In addition, the Board finds that the Veteran, his wife, and his brother are not competent to provide the missing nexus opinion because they do not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused his current left knee disorder). See Davidson, supra. Therefore, the Board finds that the most probative evidence of record also shows that the Veteran’s left knee disorder is not due to his military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d); also see Rabideau, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for a left knee disorder. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. Simply stated, the service records, the post-service treatment records, and the best medical opinion evidence in this case provides highly probative evidence against this claim that the Board can not ignore. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.