Citation Nr: 21014730 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 14-00 347 DATE: March 15, 2021 ISSUE Entitlement to service connection for degenerative joint disease (DJD) of the right knee. ORDER Entitlement to service connection for degenerative joint disease (DJD) of the right knee is denied. FINDINGS OF FACT Degenerative joint disease of the right knee was not manifest during active service, or until many years after service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW Degenerative joint disease of the right knee was not incurred in or aggravated during service and may not be presumed to have been incurred in or aggravated during such service. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309.  REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the United States Army from January 1971 to December 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2018 the Veteran testified before the undersigned Veterans Law Judge at a travel Board hearing. A transcript of the testimony offered at the hearing has been associated with the record. The Board remanded this issue in May 2018 and July 2020 for further development. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the Board will proceed to the merits of the issue on appeal. Service Connection Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also 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). Certain diseases shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service, if they manifest within a specified time period following service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a chronic disease under 38 C.F.R. § 3.309 (a). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339 ), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for degenerative joint disease (DJD) of the right knee. The Veteran contends that his right knee disability is related to his active service. Specifically, the Veteran contends that he suffered a right knee injury in April 1974 during Taekwondo training. Additionally, the Veteran contends that he cut his knee on a footlocker in 1973. The Veteran reported that the 1973 injury resulted in lacerations and stitches and ultimately resulted in a scar. At the January 2018 Board hearing statement, the Veteran testified that he has had continuous pain in his right knee since the 1973 injury. Regarding the first element of service connection, which is a current disability, the Board notes that the Veteran received a VA examination in December 2010. At that time the examiner diagnosed degenerative joint disease of the right knee. This diagnosis was confirmed at a subsequent January 2019 VA examination. As such, the Veteran has met the first criteria for entitlement to service connection. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As to the second criteria of service connection which is an in-service event, service treatment records (STRs) indicate that on April 9, 1974 the Veteran reported being kicked in the right knee during a Taekwondo tournament. At that time, he was diagnosed mild MCL strain. The Veteran's service treatment records are silent as to the 1973 foot-locker injury. However, the Veteran is competent to report observable symptomatology of an injury. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Thus, the Board finds the Veteran’s report of these in-service incidents to be credible and thus the Veteran has also met the second criteria for entitlement to service connection. Id. Turning to the final criteria, there must be a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a). First, in looking to the Veteran’s November 1978 Separation Examination, the clinical examination revealed a scar on his right leg below his knee. The clinical evaluation of his lower extremities was normal, and the Veteran reported that he was in good health. The Veteran was first afforded a VA examination in December 2010. At that time the examiner noted that she reviewed the Veteran’s claim file. Diagnostic imaging revealed mild osteoarthritis changes of the femoral patellar joint. The examiner ultimately diagnosed DJD of the right knee. The examiner discussed both the 1973 and the April 1974 injuries in the Veteran’s medical history. The examiner opined that it was less likely than not that the Veteran’s DJD was related to the right knee injury that the Veteran sustained during active service. In providing a rationale the examiner explained that the Veteran's 1974 Taekwondo injury was acute and transitory in nature, and that there were no further complaints or clinical evidence of a chronic condition. The examiner however did not address the Veteran’s 1973 injury in rendering her opinion. Therefore, the Board remanded this matter in May 2018 for the Veteran to be afforded a new VA examination. In June 2014 Dr. E.H. submitted a letter on the Veteran’s behalf. Dr. E.H. stated that the Veteran was seen in his office in June 2014 and at that time his chief complaint was pain in his right knee which had occurred intermittently since 1978. Dr. E.H. stated that the Veteran had taken non-prescription medications for the pain since. It was the examiner’s opinion that the Veteran was a reliable historian. The Veteran was afforded the Board-directed VA examination in January 2019. At that time the examiner stated that he reviewed the Veteran’s claim file. The examiner confirmed a diagnosis of DJD of the right knee and opined that the disability was less likely than not due to his 1973 or April 1974 knee injuries in service. In providing a rationale the examiner stated that there was no evidence of any medical care for a recurrent right knee disability related to or the result of the Veteran's service. The examiner noted that on April 9, 1974, the Veteran was seen for acute right knee pain after a direct kick from Taekwondo, which lasted for one day. The examiner reported that a review of plain film showed no evidence of an acute injury. The assessment was consistent with acute very mild MCL strain which resolved while in service. The examiner pointed out that there had been no complaints of right knee pain since the Veteran’s separation from service. The examiner said that the Veteran denied having right knee pain on the following PC visits: November 19, 2010, March 4, September 2, 2011, March 15, April 5, May 17, September 4, December 3, 2012, January 9, August 19, 2013, May 8, July 8, November 5, 2014, September 14, November 2, 2015, March 3, 2016, March 6, May 11, August 22, 2017, and May 30, 2018. The examiner also stated that the Veteran had not had hospitalization or surgery for his right knee disability. The examiner however failed to consider the Veteran’s lay statements as it related to his right knee disability in rendering this opinion. The examiner also did not address the June 2014 letter from Dr. E.H. Therefore, the matter was remanded again in July 2020 for the Veteran to be afforded a new VA examination. In November 2020 a Medical Opinion and Disability Questionnaire was completed. The examiner stated that she reviewed the Veteran’s claim file and conducted an in-person examination of the Veteran. She opined that it was less likely than not that the Veteran’s DJD was related to the claimed in service incidents. The examiner explained that as it related to the Veteran’s right knee scar which he has asserted is related to the 1973 footlocker injury, this injury did not cause any significant disruption to his knee joint. The examiner noted that there was no evidence that a surgical intervention was required, which indicated that the laceration did not penetrate his knee joint or lacerate any of the knee joint muscles or tendons. When explaining that the Veteran’s DJD was not related to his mild MCL strain in April 1974 the examiner explained that the injury was self-limiting and had resolved. The examiner further explained that the MCL is located on the medial side of the knee joint but does not involve the patella or articulating surfaces or the tibia or fibula, where the Veteran’s DJD is located. The examiner stated that even accounting for the Veteran’s report of his personal recollection of the history of his knee injury, without any evidence that the knee required treatment from his discharge in 1978 until his 2010 VA examination, it is not possible to attribute the DJD to subjective complaints of pain or his acute MCL strain. The examiner reviewed the letter from Dr. E.H. however she determined that that letter did not change her medical opinion. Turning to an analysis of the opinions of record, the Board first looks to the June 2014 private treatment letter provided by Dr. E.H. The Board notes the examiner only provided a brief and conclusionary rationale when determining that the Veteran was a reliable historian in reporting that he has had pain in his knee since 1978. The only reasoning provided by the examiner was based on a review of the Veteran’s self-reported history which was made in June 2014. Significantly, Dr. E.H.’s opinion is in direct contradiction to the Veteran’s own report that his disability began after his footlocker injury in 1973. Moreover, it did not take into consideration the fact that the examination of the Veteran’s lower extremities in November 1978 upon separation from service produced normal findings. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As the June 2014 opinion was conclusory in nature, and unaccompanied by a sufficient explanatory rationale the Board affords this opinion limited probative value. In contrast, the Board finds the opinion of the November 2020 VA examiner to be highly probative. The examiner’s opinion considered the Veteran's contention, the claims file, and clinical medical evidence, which included the June 2014 letter from Dr E.H. as well as the Veteran’s reports of right knee pain since service, before providing a negative opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The examiner's negative etiological opinion was supported by a sufficiently clear and well-reasoned rationale and was consistent with the verifiable facts regarding the Veteran's contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). For example, the examiner explained that as there was no indication that surgical intervention was required based on the 1973 incident, this indicated that the Veteran’s knee joint, muscles or tendons were not lacerated as a result of that injury. Additionally, the examiner explained that the area of the Veteran’s knee which was injured during the April 1984 incident did not involve the area of the knee where the current DJD is located. There is no evidence that the November 2020 VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds that it is entitled to significant probative weight as to the etiology of the Veteran's right knee disability. See Nieves-Rodriguez, Id. The Board acknowledges that the Veteran is competent to provide statements as to his beliefs that his right knee disability is related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; "[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran is competent to provide statements about his symptoms relating to his claimed right knee disability. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of such a condition of any kind. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. In addition, the Board finds that the gap in time between the Veteran's last date of active service, in December 1978, to his initial evaluation by any medical provider regarding his back in December 2010 to be probative of a lack of nexus between the diagnosed current disability and active service. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). With regard to presumptive service connection for the right knee disability, the weight of evidence shows no chronic symptoms of this condition during active service, no continuous symptoms of the condition since service, and that the conditions did not manifest to a compensable degree within one year of service. The Board notes that the Veteran has provided inconsistent statements with regard to the onset of his symptoms. Additionally, based on the evidence of record, the Board notes that the continuity of symptomatology is not shown by the most probative evidence of record. Thus, characteristic manifestations sufficient to identify the disease entity in service or within one year following discharge have not been shown. The Board finds that the Veteran’s right knee disability was first manifest years post-service and that there is no nexus to service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Upon review of the record, the Board concludes that entitlement to service connection for a right knee disability is not warranted. The Board notes a current diagnosis of degenerative joint disease of the right knee, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran's contentions, and the Veteran's post-service statements are noted. However, the record documents normal examination findings upon separation in 1978 and is silent for any mention of a right knee disability until the December 2010 VA examination, when the Veteran was first diagnosed DJD of the right knee. There is no competent evidence to tie the current assertion to any in-service disease or injury. The Board thus finds the Veteran fails the third prong of the test for entitlement to service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. (Continued on next page.) In summary, the medical evidence in this case outweighs the Veteran's assertions that his current right knee disability is of service origin. For these reasons, the preponderance of the evidence is against the claim and service connection for degenerative joint disease of the right knee is denied. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Nettey, 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.