Citation Nr: 21014870 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-24 797A DATE: March 16, 2021 ORDER Entitlement to service connection for left knee disorder, to include as secondary to service-connected disability, is denied. FINDING OF FACT The Veteran’s left knee disorder is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for left knee disorder are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1977 to July 1987. The Veteran thereafter served in the reserve for many years. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an August 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2017, the Veteran testified at a Board hearing before a Veterans Law Judge who has since retired. A transcript of the hearing has been associated with the claims file. The Board notified the Veteran of the Veteran Law Judge’s retirement with the option for an additional Board hearing in a June 24, 2020 letter. No response has been received. Accordingly, the Board may proceed with appellate review. In June 2018 and August 2020, the Board remanded the issue on appeal for further development. It now returns for appellate review. 1. Entitlement to service connection for left knee disability The Veteran contends that his left knee disorder is due to the difference in the length of his legs due to right ankle surgery. The Veteran also reported his knees took a pounding while running/walking on steel decks. The Veteran reported a flight deck accident around 1981, where he had to dive into the safety net to avoid a cable. The Veteran also reported that the surgeon who repaired the meniscus tear in his left knee stated his knee looked like it had years of damage that went untreated/undiagnosed. See July 2014 Form 9 and October 2017 Hearing Transcript. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995); 38 C.F.R. § 3.310. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). As noted above, this case was remanded by the Board previously. Specifically, in June 2018, the Board in part, remanded the claim for another examination with opinion. A VA examination was scheduled in October 2019, but the Veteran did not appear or respond to an attempt to contact him. In August 2020, the Board again remanded the claim for an examination with opinion. However, following the August 2020 Board remand, the Veteran again did not report for a scheduled examination and two attempts were made to contact the Veteran to reschedule the VA examination without success. Additionally, the Veteran has not requested that the examination be rescheduled. As noted above, while VA has a statutory duty to assist in developing evidence pertinent to a claim, a veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA’s duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565 (2008). As such, remand to reschedule the examination is not warranted and there has been substantial compliance with the Board’s prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Turning to the evidence of record, a February 1987 examination was normal except a right fibula fracture sustained in 1984 was noted. The Veteran complained of pain in the ankle. At the July 1987 separation examination the Veteran’s lower extremities were noted as normal, but with a scar on the right ankle. A March 1995 examination was normal including lower extremities, but a history of broken right ankle and spinal misalignment were noted. Private treatment records show that in January 2012, the Veteran was diagnosed with acute medial meniscus tear after reporting left knee medial pain onset a week prior without injury. In February 2014, the Veteran underwent left knee arthroscopy to repair the left knee medial meniscus tear. The July 2013 VA examiner opined that the claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition. As a rationale, the July 2013 VA examiner explained the Veteran had an acute medial meniscus tear of the left knee with medial knee pain and history of a car accident in which he was rear-ended in October 2007, and that his neck pain was most likely a result of that motor vehicle accident, and the knee pain was due to the meniscal injury as documented. The July 2013 VA examiner further explained there was no documentation of any medical connection between a lumbar strain and the Veteran’s knee pain and neck pain, and that lumbar strains were muscular ligamentous injuries and did not normally affect other bones and joints. There are no contrary or supporting opinion of records, and as noted above, the Veteran did appear for previously scheduled examinations. Based on the evidence currently of record, the Board concludes that, while the Veteran has a current diagnosis of acute medial meniscus tear of the left knee the preponderance of the evidence weighs against finding that the Veteran’s left knee disorder began during service or is otherwise related to an in-service injury, event, or disease. As discussed, private treatment records show the Veteran was not diagnosed with acute medial meniscus tear of the left knee until January 2012, decades after his separation from service. Additionally, based upon the evidence currently in the record, the Board concludes that, while the Veteran has a current disability, the preponderance of the evidence is against finding that the Veteran’s left knee disorder is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. § 1131; Allen, 7 Vet. App. at 448-49; 38 C.F.R. § 3.310(a). As discussed, the July 2013 VA examiner opined that the Veteran’s left knee disorder was less likely than not due to service-connected disability and was instead more likely due to documented meniscal injury in 2012. 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 acute medial meniscus tear of the left knee, or were secondary to service-connected disability. These issues are medically complex, as they require interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make these determinations. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Further, the Veteran also stated a surgeon told him his knee looked like it had years of damage that went untreated/undiagnosed. However, the Veteran did not report a specific diagnosis but described what surgeon explained as to the etiology of the disability, and the Board finds that a layperson’s account of what a doctor purportedly said as to this type of complex matter, filtered as it was through a layman’s sensibilities, is simply too attenuated and inherently unreliable to hold any probative value. Robinette v. Brown, 8 Vet. App. 69 (1995). Moreover, there is no indication that the surgeon who proffered such a finding reviewed the relevant records, including the Veteran’s service treatment records. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also, the surgery occurred in February 2014 and the Veteran was first diagnosed two years prior in January 2012, which was also decades after discharge from service. Consequently, the Board gives more probative weight to the July 2013 VA examiner’s opinion, which is supported by rationale and based on an examination. Accordingly, the preponderance of the evidence is against the claim for entitlement to service connection for left knee disorder, to include as secondary to service-connected spine disability and/or right ankle disability. Therefore, the benefit of the doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 55. M. ESPINOZA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sowden, 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.