Citation Nr: 21013820 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 09-11 435A DATE: March 10, 2021 ORDER Entitlement to service connection for a left knee disability, to include as secondary to the service-connected disabilities is denied. FINDING OF FACT The preponderance of the evidence is against finding that the left knee disability began during active service, had a compensable rating within a year of service, was secondary to (caused or aggravated by) any service-connected disability, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a left knee disability, to include as secondary to any service-connected disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1977 to August 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Entitlement to service connection for a left knee disability, to include as secondary to the service-connected disabilities. The Veteran contends that he hurt his left knee when he fell while carrying a M60 machine gun, and his knees hit a big rock. In the alternative, the Veteran contends that his left knee disability is secondary to his service-connected right knee disability or right achilles tendonitis. The Veteran’s service treatment records are silent for complaint, treatment or diagnosis of any left knee problem. The report of a medical history given by the Veteran in August 1982 for separation from service shows that he gave a history of right knee cap tenderness, but there was no mention of any problem with the left knee. The report of a medical examination conducted in August 1982 for the purpose of separation from service shows that clinical evaluation of the lower extremities was normal. In April 2008, the Veteran was afforded a VA examination for his knees. The Veteran reported that his left knee condition was caused by shifting his weight due to his right knee condition. The Veteran had an x-ray in July 2006 that revealed minimal degenerative changes but no evidence of fracture or effusion. The examiner was unable to make a direct connection to service for the Veteran’s left knee and stated it would be speculative to determine if the Veteran’s left knee condition was aggravated by the Veteran’s service-connected right knee condition. In February 2009, the Veteran’s x-rays show low-grade arthritis. MRI’s show thinning of the articular cartilage and low-grade arthritis, in both knees. In December 2016, the Veteran was afforded a VA examination for his knee conditions, but no medical opinion was offered regarding the Veteran’s left knee. The examiner noted that the Veteran’s left knee had an abnormal range of motion, and pain was noted on the exam, but does not result in any additional functional loss. After the July 2020 remand, on October 8, 2020, the RO sent the Veteran a development letter. The letter requested that the Veteran provide VA with authorization for any additional private treatment records that the Veteran could provide to support his claim. On November 2020, the RO attempted to contact the Veteran by phone, but the Veteran did not answer. The Veteran has not responded to the RO’s request as of the December 2020 statement of the case. In December 2020, the Veteran was afforded an examination for his left knee condition. The Veteran was diagnosed with arthritis in his left knee in 2006. The Veteran reported falling while carrying a M60 machine gun, and his knees hit a big rock. This condition was treated by placing ice on his knee. The Veteran reported that he recollects that his left knee has bothered him since service. He reported he was placed on light duty for two weeks and had military profiles issued periodically from 1978-1982 due to his left knee. The Veteran reported that when he walks a lot it will cause pain in his left knee and it will give out. He is limited in how long he can stand or walk and uses a cane and braces constantly. The examiner opined that it is less likely than not (less than 50 percent) to have had its onset during the Veteran’s periods of active service. As to the rationale, the examiner stated that there are no left knee injuries documented within the Veteran’s service treatment records that would result in a chronic issue. The examiner notes that the August 1982 report of medical examination revealed that the Veteran’s lower extremities were normal, and there were negative responses for swollen or painful joints, no broken bones, no arthritis, rheumatism, or bursitis, no bone, joint or other deformity issues. No lameness was specified. However, the examiner noted that there was a positive response for trick or locked knee, but the 1982 examiner included a notation that it was for the right knee. The examiner indicated that the Veteran’s private treatment records do not demonstrate that he received treatment for a continuation of the same problems as arose during military service. The examiner stated that the Veteran’s March 2018 x-ray revealed mild degenerative changes in both knees, and in 2006 the Veteran had minimal degenerative changes. The examiner discussed the relationship between obesity and knee arthoplasty and stated that 69 percent of knee arthoplasty may be attributed to obesity. The examiner explained that the Veteran’s service records do not demonstrate that the Veteran’s claimed left knee condition was persistent while on active duty. The examiner explained that he determined this by examining the Veteran’s service treatment records, clinical course of the Veteran, and the separation history and physical examination. The Veteran “most likely experienced minor self-limiting conditions which resolved as expected of such injuries. Consequently, it would not be likely that complications from the military service events would be expected to resurface later on in life.” The examiner explained that the considerable amount of time after the Veteran’s separation from the military without a continuity of the same complaints would have severed any causal connection to the current issue. The examiner states that an alternative explanation does not exist. The Veteran is obese, and the medical literature indicates that obesity is a strong risk factor in the development of degenerative arthritis of the knee. The examiner also stated that the lack of accelerated progression of degenerative findings is inconsistent with the expectation that the Veteran’s left knee would decline more rapidly. Specifically, the examiner stated, “the recent evaluation(s) do/does not demonstrate that this is the case. Rather the recent results seen actually represent the gradual progression associated with aging. Therefore, these facts refute the influence associated with the in-service episode.” The examiner opined that the Veteran’s arthritis unlikely manifested within one year of his separation from either period of active service. As to the rationale, the examiner stated, “The imaging studies cited above confirm that his arthritis occurred many years after he left the military service. Had such an imaging study been performed within one year of leaving the [service], then it is very likely that degenerative changes of the left knee would not have been discovered.” Presumption The Board acknowledges the Veteran’s contention that he hurt his left knee when he fell while carrying the M60 machine gun, and his knees hit a big rock. 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 arthritis as evidenced by a July 2006, x-ray. 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. VA treatment records show the Veteran was not diagnosed with arthritis in his left knee until July 2006, decades after his separation from service, and many years outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of left knee pain since service, he is not competent to provide a diagnosis in this case, or determine that these symptoms were manifestations of degenerative arthritis in his left knee as the Veteran has not demonstrated the necessary medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The record does not provide competent, credible evidence of ongoing, persistent, or continuous complaints or symptoms of a left knee disability, as required under 38 C.F.R. § 3.303. The Board weighed the medical VA examinations, VA treatment records, and the Veteran’s testimony and found the most probative evidence is the December 2020 VA examination, due to its thoroughness, in the evaluation process, and the consideration of the Veteran’s medical history. The examiner opined that the imaging studies confirm that the Veteran’s arthritis occurred many years after he left military service. The examiner also stated that, “Had such an imaging study been performed within one year of leaving the [service], then it is very likely that degenerative changes of the left knee would not have been discovered.” Thus, service connection may not be presumed here based on continuity of symptomatology under 38 C.F.R. § 3.303. Service connection for a left 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 left knee disability 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. Direct Service Connection 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 degenerative arthritis, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of degenerative arthritis began during service or is otherwise related to an in-service injury, event, or disease. Here, the Veteran is unable to demonstrate that there is direct service connection because there is no nexus between his left knee disability and service. Consideration has also been given to the Veteran’s personal assertion that he injured himself when he fell and hit his knees on a rock. However, as discussed above, the Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a current diagnosis. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. The Board also considered the Veteran’s service treatment records VA medical opinions, and treatment records which were consistent in establishing that the Veteran’s degenerative arthritis is not at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s contention that he hurt his knees when he fell on a rock while carrying a machine gun. As to the rationale, the examiner explained, 1.) that the Veteran most likely experienced minor self-limiting conditions which resolved as expected of such injuries; 2.) the Veteran is obese, and the medical literature indicates that obesity is a strong risk factor in the development of degenerative arthritis of the knee; 3.) that it would be expected that the Veteran’s knee would deteriorate more quickly if his injury was the result of service and the recent results seen represent the gradual progression associated with aging. Therefore, these facts refute the influence associated with the in-service episode. The Board concluded that the most probative evidence is the December 2020 VA examination because the examiner based his opinion on an accurate medical history and provided an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In summary, service connection is unwarranted on a direct basis. Secondary Service Connection In the alternative, the Veteran contends that his left knee disability is secondary to his service-connected right knee disability or right achilles tendonitis. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by the Veteran’s service-connected disabilities The Board concludes that, while the Veteran has a current left knee degenerative arthritis disability the preponderance of the evidence is against finding that the Veteran’s left knee degenerative arthritis is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected disabilities. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). In December 2020, the Veteran was afforded an examination for his left knee condition. The examiner opined that, The Veteran’s left knee degenerative arthritis disability is less likely than not (less than 50% probability) proximately due to or aggravated by his service connected right knee strain or any other service connected disability which includes; limitation of extension with arthritis of the right knee; right achilles tendonitis; tinnitus; and left ear hearing loss. The examiner explained that there are no functional abnormalities of the right knee that would result in an impairment of the Veteran’s ability to ambulate or create an unsteady gait. The examiner stated that, the Veteran’s service-connected right knee joint would not have resulted in a shift of weight, it would not have caused the Veteran to shift his weight to cause an extra weight burden on the Veteran’s left knee. There would be no extra stresses that would result in chronic wear and tear of the opposite unaffected joint. Thus, no degenerative process would develop. The examiner stated that “since there was no evidence of an unstable knee joint, one would not expect falling episodes to happen that would injure the unaffected opposite left knee joint.” The examiner also noted that the medical literature does not support the theory that an injured knee would adversely impact the unaffected knee. The examiner stated, The question of arthritis or an injury of the one knee which causes or aggravates the other knee due to the favoring of the unaffected extremity is a common one. The review of the medical literature reveals no generally accepted studies that support such a causal relationship nor is there any reasonable scientific logic, therefore. The examiner cited several examples illustrating the point that the Veteran’s service-connected disabilities would not impact his left knee. The examiner summarizes the studies as, “there would be no extra burden added to the unaffected joint. Therefore, no extra stresses would be placed on the left knee so as to promote degenerative changes. There are other more plausible reasons for its development. The examiner points to the fact that the Veteran is obese, which is a strong contributor for degenerative joint disease. The examiner also states that the Veteran being obese in addition to the “cumulative effects of wear and tear from aging would have predisposed the veteran to develop his degenerative changes of the left knee.” Finally, the examiner states that the rest of the Veteran’s service-connected disabilities (tinnitus/left ear hearing loss etc.) would not play a significant role in the development of his current left knee mild arthritis as other factors were much more likely to impact the Veteran’s left knee. As to aggravation, of the left knee by any of the service-connected disabilities, the examiner stated, The imaging study of the left knee only shows mild degenerative changes. Such findings reflect the gradual progression of wear and tear from the veteran’s obesity and cumulative effects of aging rather than forceful traumatic changes. Had an aggravation been present one would expect advanced degenerative changes rather than mild ones. Therefore, an aggravation has not arisen from the right knee joint or any other service-connected disability. The Board considered the Veteran’s service treatment records, VA medical opinions, and treatment records which were consistent in establishing that the Veteran’s left knee degenerative arthritis disability is less likely than not (less than 50% probability) proximately due to or aggravated by his service connected disabilities. The Board concludes that the most probative evidence is the December 2020 VA examination because the examiner based his opinion on an accurate medical history and provided an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 295. The Board notes, that there is no evidence in the record that contradicts the December 2020 examiner’s findings. Accordingly, the Board affords the December 2020 VA medical opinion substantial probative weight. While the Board has considered the Veteran’s contention that his left knee degenerative arthritis is caused or aggravated by his service-connected disabilities, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires specialized medical education and expertise. Jandreau, 492 F.3d at 1377. Consequently, the Board gives more probative weight to the competent medical evidence that uses clear conclusions and supporting data. In summary, the probative evidence of record indicates that it is less likely than not that the Veteran’s left knee degenerative arthritis disability is directly related to his active service, had a compensable rating within a year of service, or that the left knee degenerative knee disability is proximately due to or aggravated by his service-connected disabilities. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for his left knee degenerative arthritis disability. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 49. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.