Citation Nr: 21014430 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-07 053 DATE: March 12, 2021 ORDER Service connection for a left knee disability, including a left knee replacement, is denied. FINDING OF FACT The preponderance of the evidence is against finding that any disability of the Veteran’s left knee, including his left knee replacement, was related to his active duty service. CONCLUSION OF LAW The criteria for service connection for a left knee disability, including a left knee replacement, are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1971 to September 1973 and from March 1983 to March 1988. The Veteran testified at a video conference hearing before Veterans Law Judge in April 2017. A transcript of the hearing is associated with the claims file. In February 2020, the Veteran was notified that the Judge who conducted his hearing is no longer with the Board. The Veteran was provided the opportunity to appear for another Board hearing, but no response was received. Pursuant to the letter, when no response is received within 30 days of the letter, the Board will assume no hearing is requested and proceed with adjudication. In a June 2018 decision, the Board denied the Veteran’s claim of service connection for a left knee replacement. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Court issued a Memorandum Decision, in which it set aside the Board’s June 2018 decision and remanded the matter to the Board for further adjudication consistent with the Court’s decision. Subsequent to that Decision, the Board remanded this matter in August 2020. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases, including arthritis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. 38 C.F.R. § 3.303 (b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Left Knee In this matter, the Veteran contends that his left knee arthritis, which resulted in a total replacement of his left knee, is related to a knee injury and separate left knee diagnoses which occurred while in-service. Service treatment records (STRs) show that that the Veteran sustained a left knee laceration in-service in September 1983 following an accident with a chainsaw. STRs from 1987 also show that the Veteran had complaints of left knee pain beginning in 1986 and was thought to have chondromalacia involving his patella. See February 1987 medical records. An X-ray was noted to show good joint space in both medical and lateral compartments and his bone structure and architecture was noted to look quite well. Medical records from May 1987 showed the Veteran was diagnosed with retropatellar knee syndrome. He was recommended for an arthroscopic evaluation. The Veteran’s September 1987 separation report of medical history showed the Veteran checked trick or “locked” knee and he stated he was told he would need shaving of his left knee at aged 33. The Veteran’s concurrent separation medical examination did not have any findings related to the Veteran’s left knee. Post-service medical records include a February 2006 private left knee X-ray that showed mild medial joint space narrowing and suggestion of a small joint effusion. A June 2010 private record showed the Veteran had complaints of left knee pain. An October 2010 private medical record showed the Veteran had been diagnosed with left knee degenerative arthritis and undergone a total left knee replacement. An October 2020 VA examination found that the Veteran’s development of arthritis and subsequent left knee replacement was less likely than not incurred in or caused by his service injuries, events, or illnesses. At his hearing, the Veteran testified that he had intermittent, seasonal knee pain that increased over the years and treated himself with ibuprofen and a spandex knee brace. He submitted lay statements from his wife and mother. His wife, to whom he has been married since September 1990, reported sporadic knee problems of several weeks three times per year. Similarly, his mother stated that the Veteran mentioned problems with his knee during some visits in the interim between his separation from service and his knee replacement surgery. At the outset, the Board notes that the Veteran was not diagnosed with left knee arthritis until decades after his separation from service and decades outside of the applicable presumptive period. 38 C.F.R. §§ 3.307, 3.309(a). Thus, service connection for the Veteran’s left knee arthritis and resulting left knee replacement cannot be granted on presumptive grounds. Second, though the Veteran was diagnosed with chondromalacia patella and retropatellar knee syndrome in service, those conditions were not diagnosed in the Veteran’s 2010 medical assessment of his left knee or noted to be the causation for his left knee total replacement. See October 2010 medical record. Thus, the evidence of record does not support a finding that the Veteran had a chronic condition in service which led to his left knee total replacement. See 38 C.F.R. § 3.303(b). However, service connection can be granted when there is a showing of continuity of symptoms after service if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) a nexus between the present disability and the post-service symptomatology. After review of the record, the Board finds that the preponderance of the evidence is against finding continuity of symptomology sufficient to warrant a grant of service connection. The record does show that the Veteran had knee conditions noted during service and that he has testified and submitted lay statements which report he suffered from knee pain since his service. However, there is no evidence of record which provides a nexus between the Veteran’s left knee arthritis/replacement and his in-service knee injury/diagnoses or post-service pain complaints. Indeed, the October 2020 VA examination found that the Veteran’s in-service knee syndromes were not etiologically related to his development of arthritis or the resulting left knee replacement surgery. Specifically, the examiner stated that the Veteran’s in-service conditions would not contribute to the development of degenerative knee disease 23 years later. Furthermore, in his June 2010 private medical record, the Veteran reported an onset of knee pain two or three months earlier. The records from this period do not refer to a knee brace. The Veteran has not submitted any treatment records from the intervening decades. In the interim, the Veteran reported a career as a guard with the State of Indiana’s Department of Corrections (DOC), with duties overseeing visits and the kitchen. At his hearing, the Veteran denied undergoing any physical examinations as part of this employment. He also stated that he never was put on light duty due to knee pain during his career with the DOC and at no point had his supervisor notice or commented on visible signs of knee pain. While lack of treatment itself does not preclude a finding of continuity of symptomatology, the lack of any documented medical complaints or treatment is inconsistent with a more than twenty-year history of recurring knee pain running concurrently with a position as a corrections officer. As such, the credibility of these lay statements is diminished and the statements, in and of themselves, do not serve to establish the required nexus between the Veteran’s in-service conditions and his left knee arthritis/replacement. Additionally, the Veteran has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). The Board affords more probative weight to the October 2020 examiner, who conducted an examination of the Veteran, considered his statements regarding his left knee pain, and did a thorough review of the record, which included the lay statements of record. Significantly, the Veteran and his representative have not identified or introduced any objective evidence which supports the claim for service connection. The Board concludes that the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of left knee arthritis, which led to his left knee replacement, began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.