Citation Nr: 21011222 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-24 881A DATE: March 1, 2021 ORDER Service connection for a right knee condition, claimed as secondary to service-connected left knee degenerative joint disease, is denied. FINDINGS OF FACT 1. The evidence is insufficient to establish that the Veteran has a diagnosed condition of the right knee or that his right knee symptoms impair earning capacity. 2. The evidence is insufficient to establish that any right knee disability is proximately due to or aggravated by the Veteran’s service-connected left knee degenerative joint disease. CONCLUSION OF LAW The criteria for service connection for a right knee condition, as secondary to service-connected left knee degenerative joint disease, have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably, including active duty service from September 1976 to May 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Following an August 2019 Board decision denying the claim for service connection for a right knee condition, a September 2020 order of the US Court of Appeals for Veterans Claims (the Court) vacated that decision and remanded for compliance with the terms of the parties’ joint motion for partial remand (JMPR). The JMPR found that the Board failed to discharge VA’s duty to obtain updated VA treatment records, based on the Veteran’s statement at a May 2019 Board hearing that he had recently seen a VA-contracted clinician for his knee. At present, VA treatment records up to the date of the Board hearing and several months afterward are associated with the record, and therefore the Board finds that VA’s duty to obtain VA treatment records has been discharged. Moreover, there is no evidence of record identifying or indicating VA treatment records have been generated since the date of the most current VA treatment records. 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2). The Board will now consider the merits of the Veteran’s contention that he has a right knee disability secondary to his service-connected left knee disability. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a current disability which is proximately due to or aggravated in severity beyond its natural progression by a service-connected injury or disease. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Based on review of the evidence of record, the Board finds that service connection is not warranted in this case, for two reasons. First, the Board finds the evidence is insufficient to establish a current disability. The Veteran filed the service connection claim in June 2014. Of record is an August 2014 VA primary care note that found the Veteran “with pseudolocking and instability L>R,” “patient c/o grinding sensation both knees,” and “MCD both knees,” with an impression of “DJD knees” and an order for x-ray imaging. In the following month, the x-rays were reviewed by the doctor, who wrote “Impression: Normal right knee.” In the VA treatment records for the period in which the Veteran indicated he had seen a new doctor for his knees, the Board finds no new evidence that supports the existence of a diagnosed right-knee condition. The Board does find repeated records of the findings of the August 2014 primary care note—for example, the Veteran cites to a February 2016 VA treatment note that noted “pseudolocking and instability L>R,” “patient c/o grinding sensation both knees,” and “MCD both knees,” but the Board finds this is simply a February 2016 record that included the Veteran’s treatment history note from August 2014. As discussed above, following the August 2014 visit, the Veteran’s right knee was ultimately found to be in normal condition. The Board does not find new VA treatment records that show a newly diagnosed condition of the right knee. The Veteran argues that his testimony at the May 2019 Board hearing of recurring pain and instability since “basically just before [he] had th[e] left knee replaced” in January 2016 can constitute evidence of a current disability under the holding of the Court in English v Wilkie, 30 Vet. App. 347 (2018). In English, however, the Court went only so far as to hold that a Veteran is competent to testify to the symptom of knee instability and that his or her testimony should not de facto carry less probative weight than medical evidence. Id. at 352-53. Thus, English does not in and of itself support the Veteran’s proposition that he may self-diagnose as a current disability his right-knee symptoms. See id. Instead, as held in a series of other recent appellate decisions, it is evidence that the symptoms impair earning capacity that ultimately establishes existence of a current disability. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020) (holding that the Federal Circuit’s decision in Saunders is “applies broadly to include more than just pain”); Wait v. Wilkie, 33 Vet. App. 8, 15-16 (2020) (holding that a symptom must be shown to impair earning capacity to constitute a disability); see also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this case, the Veteran has made no allegation that his right knee symptoms impair his earning capacity, and therefore the Board finds that his testimony of symptoms alone is not sufficient to establish a current disability for service-connection compensation purposes. See Wait, 33 Vet. App. at 15-16. The second reason service connection is not established in this case is that there is insufficient evidence to support that any right knee disability is secondary to the service-connected left knee condition. The Veteran’s theory is that “over the years, the right knee started to be affected by . . . favoring his injured left knee,” but the only support for this etiology is this bare assertion. The Board acknowledges this contention from the Veteran but notes that there is no evidence of record to establish the Veteran has education, training, or experience that would make him competent to opine on the etiology of his right knee symptoms, which is a medically complex issue beyond observation by the senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Accordingly, the Board finds that there is insufficient competent evidence of record to support that any right knee disability would be proximately due to or aggravated by the Veteran’s service-connected left knee disability. See 38 C.F.R. § 3.310(a). Given the insufficient competent evidence regarding a connection between the Veteran’s service-connected left-knee disability and the right knee, the Board likewise finds that there is insufficient evidence to raise an indication that the Veteran’s right knee symptoms are linked to the left-knee disability. Therefore, there is no duty to provide a medical examination. McLendon v. Nicholson, 20 Vet. App. 79, 83, 86 (2006) (applying 38 U.S.C. § 5103A(d)); see also 38 C.F.R. § 3.159(c)(4). On this point, the Board acknowledges the Veteran’s testimony at the May 2019 Board hearing, as related in the JMPR, that he had persistent or recurrent symptoms of a right knee disability. Such testimony, however, relates only to the first criterion for a duty to provide a medical examination. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The duty would only exist, however, where the evidence additionally indicated that the claimed symptoms may be associated with the Veteran’s service-connected disability, and here the Board does not find there is sufficient competent evidence to raise such an indication. 38 C.F.R. § 3.159(c)(4)(i)(C); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2006) (reaffirming that the Board’s role is to assess the weight of all evidence). Given that the evidence is insufficient to support that the Veteran has a current disability or that any current disability would be secondary to his service-connected left knee disability, service connection for a right knee disability must be denied. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, Associate 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.