Citation Nr: 21014204 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-04 588 DATE: March 11, 2021 ORDER Entitlement to service connection for a right knee disability, to include as secondary to service-connected lumbar strain and/or right hip disability, is denied. FINDINGS OF FACT 1. The Veteran did not serve in the Southwest Asia theater of operations during the Persian Gulf War during his period of active service at any time from May 2010 to November 2012. 2. The Veteran has not been shown to have a current disorder or functional impairment attributable to right knee pain at any time since separation from service in November 2012. CONCLUSION OF LAW The criteria for entitlement to service connection for a right knee disability, to include as secondary to service-connected lumbar strain right knee condition, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 2010 to November 2012. In November 2018, the Board restored the 20 percent disability rating for service-connected cervical spine strain from June 1, 2014 to September 14, 2015, denied service connection for a right foot disability, and remanded the issues of service connection for right hip and right knee disabilities for additional evidentiary development. In an October 2020 VA rating decision, the issue of service connection for a right hip disability was granted by the Agency of Original Jurisdiction (AOJ), which represents a full grant of the benefits sought so it is no longer on appeal before the Board. The remaining issue on appeal has been returned to the Board for appellate review. There was substantial compliance with the November 2018 remand directives for the remaining issue on appeal discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Veteran was provided a VA Disability Benefits Questionnaire (DBQ) examination for the right knee in September 2020 and VA DBQ medical opinions in October 2020. The issue was also readjudicated in an October 2020 supplemental statements of the case (SSOC). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regards to the issues discussed below on the merits. 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). Entitlement to service connection for a right knee disability, to include as secondary to service-connected lumbar strain Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021 and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317(a)(1) (2017). In this case, the Board finds that the Veteran is not a Persian Gulf Veteran. Although he served on active duty during the during the Persian Gulf War, his service personnel records do not show he served in the Southwest Asia theater of operations at any time during his period of active service from May 2010 to November 2012. As a result, consideration of whether service connection for the claim below will not be considered on a presumptive basis for a Persian Gulf Veteran. Review of the Veteran’s service treatment records document in May 2010 he was seen for complaints of right knee pain, evaluation revealed tenderness to palpation and pain on motion, assessment with joint pain localized in the knee, and notation of knee joint pain among the list of chronic illnesses. In May 2012, he was seen with complaints of right hip and knee pain causing him to limp and assessment with chronic pain syndrome and right leg gracilis muscle strain of unknown etiology. In June 2012, he reported right inner thigh pain radiating to the posterior medial knee Within one year after separation from active service, the Veteran requested service connection for a right knee disability in February 2013. Review of medical records during the appeal period show complaints for right knee pain. Shortly after separation from service, review of VA treatment records documents the Veteran’s reported knee pain and nerve damage affecting his knee in November 2012, as well as pain at posterior knee and right knee extension less than antigravity in December 2012. In May 2013, the Veteran underwent a VA DBQ examination for knee and lower leg conditions. The VA examiner noted “no right knee condition or complaint [and] no medical evidence that he has or has had one.” Upon clinical evaluation of the right knee, the VA examiner noted the Veteran did not report flare-ups impacting the function of the knee or lower leg nor having any functional loss or functional impairment of the knee. The Veteran demonstrated normal range of motion of the right knee without evidence of pain, tenderness, or pain on palpation. He was able to perform repetitive use testing with at least three repetitions and no additional loss of function or range of motion after such repetitions. The VA examiner explained why he was unable to opine without speculating whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time, and why he was unable to describe without speculating any such additional limitation due to pain, weakness, fatigability, or incoordination in degrees of additional range of motion loss due to pain on use or during flare-ups. Following clinical evaluation, the VA examiner concluded “the Veteran does not have a right knee condition.” At a September 2015 VA DBQ examination for knee and lower leg conditions, the Veteran reported the right knee started “acting up shortly after the hip did [and] it feels like the knee cap is trying to escape [and] tendons in the back of the knee will get extremely tight and feels like they are trying to rip themselves apart.” He characterized typical knee pain is about 5-7 out of 10, pain is worse if he sits still too long or if someone pushes down on the knee, the knee will swell, click, and lock, and reported flare-ups of the knee described as worse pain when sitting too long and swelling. Upon clinical evaluation of the right knee, the Veteran demonstrated limited flexion to 30 degrees and extension to 0 degrees, painful active motion, pain with weight bearing, and moderate diffuse tenderness, but pain noted on exam did not result in/cause functional loss. He was able to perform repetitive use testing with at least three repetitions and no additional loss of function or range of motion after such repetitions, nor did pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time or with flare-ups. Following clinical evaluation, the VA examiner explained why it was not possible for the Veteran to have a knee condition related to his complaints of pain during service. Most recently, at a September 2020 VA DBQ examination for knee and lower leg conditions, the Veteran reported radiation of pain extending though the thigh and just past the knee on the right side. Upon clinical evaluation of the right knee, the VA examiner noted the Veteran did not report flare-ups of the knee or lower leg nor having any functional loss or functional impairment of the knee. The Veteran demonstrated normal range of motion of the right knee without evidence of pain, localized tenderness, pain on palpation, or crepitus. He was able to perform repetitive use testing with at least three repetitions and no additional loss of function or range of motion after such repetitions. The VA examiner also marked “no” for any finding that pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use of the right knee over a period of time. Following clinical evaluation, the VA examiner concluded there were no findings of additional contributing factors of a knee disability, the Veteran does not have a current diagnosis because there are no findings, signs and/or symptoms to support a diagnosis. Review of more recent VA treatment records shows the Veteran’s reported right knee locks and kneecap shifts, right knee flexion to 100 degrees, and right knee extension to 30 degrees in April 2015, and swelling in the right knee and foot approximately three days after attending a wedding in July 2015. Regardless of an in-service occurrence, as discussed above, review of the record is silent for any probative and competent evidence that demonstrates a diagnosis of a right knee disability or functional impairment attributable to right knee pain at any time since separation from service in November 2012. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Board recognizes the decision in Saunders v. Wilkie that “pain alone can serve as a functional impairment and therefore qualify as a disability.” 886 F.3d 1356 (2018). However, the Court of Appeals for Veterans Claims (Court) in Saunders cautioned that a Veteran cannot demonstrate service connection simply by asserting subjective pain. Id. Rather, the Court stated “[t]o establish the presence of a disability, the veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity.” Id. While the Veteran demonstrated limited right knee flexion to 30 degrees with pain, pain with weight bearing, and moderate diffuse tenderness at the September 2015 VA DBQ examination, the VA examiner concluded such pain on examination did not result in or cause the Veteran’s functional loss. In light of the totality of the medical evidence of record, the Board finds that the most probative evidence of record reflects the Veteran has not been shown to have a current disorder or functional impairment attributable to right knee pain at any time since separation from service in November 2012. Review of the claims file as discussed above does not show a clinical diagnosis of the right knee, separate and distinct from any other disability, has not been rendered by a VA examiner nor VA treating physician, and diagnostic imaging studies of the right knee in September 2015 did not reveal findings of degenerative or traumatic arthritis. The record also does not demonstrate clinical findings for additional loss of function or range of motion after repetitive-use testing, use over a period of time, or during a flare-up due to the Veteran’s reported right knee pain, as noted in the VA DBQ examination reports. Moreover, the Veteran’s current symptomatology of the right knee are separately compensated by the service-connected right hip disability. Specifically, the September 2020 VA examiner concluded, in part, the following: The evidence of record, the [V]eteran[’]s testimony and today’s evaluation provide insufficient evidence to establish a diagnosis of the right knee claimed condition. However, [such evidence] provide sufficient evidence to establish that the [V]eteran suffers from right hip impingement syndrome and cam deformity causing femoral acetabular impingement. A common symptom of this condition is radiating pain to the knee. While this does not represent a separate and distinct knee condition the [V]eteran can experience pain radiation as a consequence of the diagnosed right hip condition. The Board has considered the Veteran’s reported history of symptomatology related to his right knee, including pain, stiffness, tightness, swelling, clicking, and locking, throughout the appeal period. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through one’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to its existence or etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, the Veteran’s report of experiencing such symptomatology, as noted above, is competent and credible; however, as explained above, his current symptomatology of the right knee is currently compensated by the service-connected right hip disability and no separate and distinct diagnosis of a right knee disability has been rendered in this case. Therefore, his assertion is of less probative value than the medical evidence. (Continued on the next page)   In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim on direct and secondary bases, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, 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.