Citation Nr: 21010914 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 16-33 515 DATE: February 26, 2021 ORDER Entitlement to service connection for right knee disability is denied. Entitlement to service connection for left knee disability is denied. Entitlement to service connection for thrombocytopenia is denied. FINDINGS OF FACT 1. The Veteran’s right knee arthritis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and a right knee disability is not otherwise etiologically related to an in-service injury or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has had a left knee disability at any time during or approximate to the pendency of the claim. 3. The Veteran's thrombocytopenia did not have its clinical onset in service nor is it otherwise related to active duty, to include exposure to contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for service connection a right knee disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for thrombocytopenia have not been met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from May 1980 to May 1987. He was stationed at Camp Lejeune from March 1981 to April 1983 during his service. The issues are on appeal from a September 2012 rating decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in March 2019. A transcript of the hearing has been associated with the record. The Board previously remanded these issues in May 2019 for further development. The Board finds there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 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). Entitlement to service connection for right knee disability The Veteran contends that his right knee disability is due to right knee injuries in service. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of right knee arthritis as evidenced in VA clinical records. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Although service treatment records do document right knee injuries and a diagnosis of right knee sprain, the records are silent with respect to any findings of arthritis. Importantly, the April 1987 service examination prior to discharge showed that the Veteran’s lower extremities were clinically evaluated as normal. In his contemporaneous medical history, the Veteran expressly denied a trick or lock knee. In sum, there were no findings of a chronic right knee disability upon discharge. Post-service, the first evidence of a right knee disability is when the Veteran filed his current claim in May 2011, decades after his separation from service and decades outside of the applicable presumptive period. At the August 2012 VA examination, the Veteran reported that he had not sought any treatment for his knees. Moreover, at the Board hearing, the Veteran reported that he began having knee problems around 2011. In sum, there is no medical or lay evidence showing pertinent symptomatology. Further, while the Veteran asserts that the reported symptoms were manifestations of arthritis, he is not competent to determine that these symptoms were manifestations of arthritis as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical knowledge and the ability to interpret complicated diagnostic medical testing]. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which does not show a diagnosis of arthritis until many years after service. Service connection for right knee disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s right leg/knee disorder and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In this regard, the August 2012 VA examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury event or illness. The examiner noted the in-service injuries but found that the bilateral knee sprains or strains had resolved prior to military discharge. Moreover, physical examination findings showed near normal range of motion that is most likely limited due to body habitus of obesity. The examiner observed that the Veteran’s work history showed that he was able to work in moderate type physical activities and had lost no time from occupational duties due to his knee condition. The Veteran also reported having very little pain in the right knee and had never sought treatment post military. The examiner rationalized that there was no nexus of medical care for the claimed condition establishing continuity of care for functional impairment, disability, disease or diagnosis of any knee condition. There are no lay, medical or diagnostic findings of a knee condition post service because the Veteran did not seek medical treatment for a chronic disability or functional impairment. The Board finds that the VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes that his right knee disability is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. Again, this issue is also medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In conclusion, based on the analysis above, a preponderance of the evidence is against the Veteran’s claim for service connection for right knee disability. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). Entitlement to service connection for left knee disability The Veteran contends that he has a left knee disability due to service. In this regard, service treatment records do show a left knee strain and left knee overuse syndrome in 1980. However, follow up records are silent with respect to any further left knee problems. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a left knee disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Again, the Veteran was afforded a VA examination for his left knee condition in August 2012. The examiner stated the Veteran did not have any left knee condition diagnosis. However, the Board previously found that this examination was inadequate as it contained contradictory findings as to whether the Veteran had a left knee disability. Importantly, on remand, the November 2019 VA examiner stated that in response to the remand concerning whether the Veteran suffers from a left knee condition, and if so, whether the disability is etiologically linked to service, the claims file as well as all pertinent records were examined. The examiner also reviewed the entire record of the Remand Case, including but not limited to all lay statements and testimony. The examiner found that the Veteran had no left knee condition at the time of the examination in 2012. The remand references a tendon rupture. The examiner noted that the rupture referred to the right knee and not the left. No other condition of the left knee exists. The imaging findings is not a condition itself; the finding can be the result of arthritis but also be the result of obesity, trauma, inflammatory and /or metabolic conditions. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, significantly, despite consistent treatment, VA treatment records do not contain a diagnosis of a left knee disability. Moreover, in this case, there is no competent medical evidence suggesting functional impairment of earning capacity. Although the Veteran has reported left knee symptoms, the August 2012 VA examiner clearly found no functional impairment pertaining to the left knee. Importantly, again, the November 2019 VA examiner unequivocally found that the Veteran did not have a left knee disability. In sum, there exists no basis for finding that a threshold of functional impairment of earning capacity has been met. Absent such evidence, there can be no finding of a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). While the Veteran believes he has a left knee disability, he not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, to specifically include the November 2019 VA opinion. In conclusion, the Board finds that the preponderance of the evidence weighs against the claim for service connection for left knee disability. Thus, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 Entitlement to service connection for thrombocytopenia The Veteran asserts that his thrombocytopenia was a result of exposure to contaminated water while stationed at Camp Lejeune. Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases to the list of diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. Service records show that the Veteran was stationed at Camp Lejeune in 1954 for approximately two months and, thus, exposure to contaminated water is presumed. The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. Amended 38 C.F.R. §§ 3.307 and 3.309 establish presumptive service connection for Veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) during this period, and who have been diagnosed with any of the following eight diseases: adult leukemia; aplastic anemia and other myelodysplastic syndromes; bladder cancer; kidney cancer; liver cancer; multiple myeloma; non-Hodgkin’s lymphoma; and Parkinson’s disease. In addition, the amendments establish a presumption that these individuals were disabled during the relevant period of service, thus establishing active military service for benefit purposes. This amendment implements a decision by the Secretary of Veterans Affairs that service connection on a presumptive basis is warranted for claimants who served at Camp Lejeune and later develop the certain diseases listed above. As thrombocytopenia is not one of the disorders listed above, the Veteran’s disability is not presumed to be related to his exposure to contaminated water at Camp Lejeune during his service. However, the absence of a disease from the presumptive list does not preclude a veteran from otherwise proving that their disability resulted from exposure to contaminated water at Camp Lejeune. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, the Board will still consider whether entitlement to service connection can be granted on a direct basis. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of thrombocytopenia and evidence shows that the Veteran was exposed to contaminated water at Camp Lejeune, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of thrombocytopenia began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records are silent with respect to any complaints, findings or diagnosis of thrombocytopenia. A September 2012 private opinion indicated that the Veteran had a low platelet count in 2005, which was 18 years after his separation from service. The Veteran himself has not reported ongoing symptomatology and significantly, at the Board hearing, testified that he was asymptomatic. The record contains conflicting medical opinions regarding whether the Veteran’s thrombocytopenia is at least as likely as not related to an in-service injury, event, or disease, including exposure to contaminated water. The September 2012 private examiner stated that based on his review of the evidence, the examiner was certain that the low platelet count is reflective of a bone marrow abnormality due to exposure to the toxins in the water at Camp Lejeune. Although the examiner indicated that he was 100 percent certain, he provided no further rationale for this opinion. Importantly, the April 2015 VA examiner found that the Veteran thrombocytopenia was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner found that the Veteran’s sleep apnea and obesity were the most likely cause of mild thrombocytopenia in this clinical situation. The examiner rationalized that there is no objective evidence that the Veteran's thrombocytopenia is related to his exposure to contaminated water at Camp Lejeune. The records clearly document that the thrombocytopenia is more likely as not a result of his underlying co-morbidities including occult liver disease (nonalcoholic steatohepatitis (NASH)), obesity, sleep apnea and hyperlipidemia. There is no evidence to suggest or support that the thrombocytopenia is related to a distant history of exposure to organic solvents such as trichloroethylene, perchloroethylene, benzene, or vinyl chloride. Nonalcoholic fatty liver disease (NAFLD) is seen worldwide and is the most common liver disorder in Western industrialized countries, where the major risk factors for NAFLD, central obesity, type 2 diabetes mellitus, dyslipidemia, and metabolic syndrome are common. Nonalcoholic fatty liver disease refers to the presence of hepatic steatosis when no other causes for secondary hepatic fat accumulation (e.g, heavy alcohol consumption) are present. In general, alcohol is a known factor in developing steatosis, as well. The examiner continued that the literature was reviewed to assess for the association of fatty liver disease and exposure to organic solvents. Some journal articles have found an association between solvents and the development of fatty liver disease; however, the studies have been small and there has not been evidence for a strong causal effect. It has been difficult to fully assess alcohol use in the small studies which is a significant confounder since alcohol use is a major risk factor for fatty liver disease. The examiner noted that there have been suggestions of a possible link in the literature but these have been case reports and small case-control studies. Also possible links were only found after there had been moderately intense and mixed solvent exposure for more than one year. The role of solvents as hepatotoxic agents under present-day exposure levels in the workplace is still unclear. The purpose of one study involving 99 metal degreasers was to examine dose-response relationships between long-term exposure of mainly trichloroethylene and a battery of liver function tests. The significance of this relationship, however, was not able to withstand a multiple regression analysis, with age and alcohol abuse as confounding variables. The conclusion is that of a non-significant association between solvent exposure and tests screening for early liver dysfunction. Again, the small conducted studies are unable to show a statistically relevant association for or against a relationship between fatty liver and organic solvents. There is much stronger evidence of the Veteran's other known risk factors of obesity, hyperlipidemia, and alcohol use as contributing to the development of NASH rather than solvent exposure. The Board finds that the VA opinion is more probative that the private opinion as the VA examiner addressed the Veteran’s medical history, including known risk factors, and offered a detailed rationale for their opinion. Again, the private examiner offered no rationale and did not address the Veteran’s other risk factors. In sum, the VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that the record also contains medical publications concerning thrombocytopenia and benzene. In this regard, the Board notes that when medical articles or treatise evidence, standing alone, discusses 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, a claimant may use such evidence to meet the requirement for a medical nexus. Wallin v. West, 11 Vet. App. 509 (1998). However, an attempt to establish a medical nexus between service and a disease or injury solely by generic information in a medical journal or treatise “is too general and inclusive.” Sacks v. West, 11 Vet. App. 314, 317 (1998) (a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element). Still, medical treatise evidence can provide important support when combined with an opinion of a medical professional. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor’s statements was “adequate to meet the threshold test of plausibility”). However, as discussed above, the April 2015 VA examiner considered the entire claims file when forming the opinion concerning the Veteran’s thrombocytopenia and still found no such link between the contaminated water at Camp Lejeune and his disability. The examiner also thoroughly discussed the literature on this subject. Moreover, given that this article is general in nature and does not specifically address the Veteran’s disability, it has minimal probative value when weighed against the VA opinion that is specific to the Veteran’s case. In this regard, the examiner thoroughly considered the Veteran’s record and medical history when forming their opinion. The Veteran believes his thrombocytopenia is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. hearing428 (2011). Consequently, the Board gives more probative weight to the April 2015 VA opinion. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for thrombocytopenia. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim for service connection is denied. See 38 U.S.C. § 5107. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.