Citation Nr: 21013081 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-08 364 DATE: March 8, 2021 ORDER Service connection for a right knee disability is denied. Service connection for a left knee disability is denied.   FINDINGS OF FACT 1. The Veteran’s right knee disability is not related to service and not secondary to service-connected condition. 2. The Veteran’s left knee disability is not related to service and not secondary to service-connected condition. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 3.310. 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1976 to January 1977, and from October 2004 to October 2005, with additional service in the Army Reserves and Army National Guard. The case is on appeal from an October 2011 rating decision. The Veteran testified at a Board hearing in December 2014. The claims for right and left knee were previously before the Board in June 2015 and October 2019, and were remanded both times for additional development. Additional evidence has been associated with the claims file since the October 2020 supplemental statement of the case (SSOC), but the Board finds that the additional evidence is not pertinent to the Veteran’s right and left knee service connection claims. Thus, a remand for another SSOC is not necessary. See 38 C.F.R. § 20.1305(c). To the extent an appeal of a sleep apnea claim has been perfected, the Veteran awaits a hearing on the issue, and it will be decided in a separate, future Board decision, when in order. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Service connection for a right knee disability. 2. Service connection for a left knee disability. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Analysis The Veteran is claiming service connection for right and left knee disabilities, either directly as a result of his military service, or secondarily to his service-connected degenerative disc disease (DDD) of the lumbar spine, which was granted service connection due to an injury involving an IED blast. At his December 2014 Board hearing, the Veteran contended that the extensive amount of time he spent running in military boots with a forced altered gait due to his service-connected back condition led to his knee problems. In July 2011, it was determined that the Veteran’s service treatment records (STRs) from September 1976 to January 1977 were unavailable for review, and that all efforts to obtain the needed information had been exhausted, further attempts were futile, and the record is not available. However, the available STRs are silent as to complaints or treatment for either the right or left knee. A VA examiner in May 2011 opined that his knee conditions were less likely related to his service-connected lumbar spine disability, and more likely due to being on his feet and hard surface at his present job. Conversely, in a January 2014 VA medical treatment note, the Veteran’s primary care physician indicated his belief that the chronic knee pain is most likely referred pain from the back, with degenerative joint disease and osteoarthritis components to it. Pursuant to the June 2015 Board remand, the Veteran was afforded a new VA examination in September 2015. The VA examiner opined that the Veteran’s STRs do not support a primary nexus for both knees, noting that aggravation rarely travels down from the back in the absence of paresis, altered gait, a fall, etc. In December 2015, the same examiner also opined that the bilateral knee condition was less than likely aggravated beyond its natural progression by his back problem, as there were no mechanical stressors present to cause aggravation. The Board subsequently requested a Veterans Health Administration (VHA) expert medical opinion. A June 2019 opinion was obtained; however, the Board determined that the physician did not provide an adequate rationale for his opinion, or provide any reasoned medical explanation connecting his negative conclusions to supporting data, particularly with regard to the secondary theory. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In October 2020, pursuant to the Board’s October 2019 remand, the Veteran underwent a new examination by an orthopedic surgeon. The Veteran reported that his bilateral knee pain began when his back was injured during the IED injury in 2005. The examiner noted that the first mention of knee pain in the medical records was in May 2011. The orthopedist determined a current diagnosis of degenerative arthritis and chondrocalcinosis of both knees. He then opined that the Veteran’s bilateral knee condition was less likely than not related directly to service, stating that there is no evidence the knees were injured during service, with a November 2005 normal examination without restriction of motion following service, and no complaints until May 2011, six years later. The examiner also provided opinions as to whether his knee conditions could be secondary to his service-connected DDD. He indicated that as a board certified orthopedic surgeon, he could not find a medical reason for his lower back injury causing his knee diagnoses, but rather, those condition are directly related to the knees themselves. Thus, he opined that the claimed conditions were less likely than not proximately due to or the result of his service-connected DDD. Finally, he opined that the Veteran’s right and left knee disabilities were not aggravated beyond the natural progression due to his back condition. He provided the rationale that on the current evaluation, the Veteran had no altered gait, and that in his professional experience, the back condition has “absolutely no relationship to causing the diagnoses in the knees,” and the chondrocalcinosis and degenerative arthritis are natural progression of the conditions. With respect to the first element, the evidence of record establishes that the Veteran has current diagnoses for both the right and left knees, to include degenerative arthritis, chondrocalcinosis, and osteoarthritis, as documented in his medical records. The Board notes that the Veteran’s Certificate of Release or Discharge (DD214) states that the Veteran’s military occupational specialty (MOS) was infantryman. The DD214 also states that the Veteran received the Combat Infantryman Badge. If an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay or other evidence, and due regard will be given the places, types, and circumstances of service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). However, 38 U.S.C. § 1154(b) does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Consequently, there is no basis to conclude that the Veteran sustained a combat injury resulting in right and left knee injuries in service, or other evidence that supports a nexus. 38 U.S.C. § 1154(b). The Board finds most probative the October 2020 opinions from the orthopedic expert, which are clear and unequivocal, and based on the relevant information, including the Veteran’s STRs, post-service treatment records, personal medical history, and occupational history. Moreover, the examiner’s explanations are logical and follow from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez, 22 Vet. App. at 304. The orthopedic surgeon was unable to find a medical nexus between the Veteran’s bilateral knee conditions to service directly, a nexus linking the knee problems to his back due to an altered gait, or find evidence that his service-connected DDD has aggravated his knee conditions beyond the natural progression of degenerative arthritis and chondrocalcinosis. The Board has considered the January 2014 VA treatment note from the Veteran’s VA physician that his chronic knee pain is most likely referred pain from the back. However, as no further explanation or rationale for this conclusion was provided, it is of little probative weight. In sum, the preponderance of the evidence is against the claims, particularly the direct and secondary nexus elements, and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for a right and left knee condition, either directly or secondarily, is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morford, 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.