Citation Nr: 21014911 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 19-08 763 DATE: March 16, 2021 ORDER 1. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected disability, is denied. 2. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected disability, is denied. FINDINGS OF FACT 1. The Veteran’s left knee disability was not manifested in service; arthritis of the left knee was not manifested within a year following his separation from service; and his current left knee disability is not shown to be etiologically related to his service or to have been caused or aggravated by his service-connected back, hip, and/or foot disabilities. 2. The Veteran’s right knee disability was not manifested in service; arthritis of the right knee was not manifested within a year following his separation from service; and his current right knee disability is not shown to be etiologically related to his service or to have been caused or aggravated by his service-connected back, hip, and/or foot disabilities. CONCLUSIONS OF LAW 1. Service connection for a left knee disability, to include as secondary to a service-connected disability, is not warranted. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a), 3.310. 2. Service connection for a right knee disability, to include as secondary to a service-connected disability, is not warranted. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1955 to September 1958 and from November 1959 to November 1962. These matters are before the Board on appeal from a May 2018 Department of Veterans Affairs (VA) rating decision. In July 2019, a Travel Board hearing was held before a Veterans Law Judge who is no longer with the Board; a transcript is in the record. The Veteran was offered the opportunity for another hearing, but did not respond. In July 2020, the matters were remanded for additional development. Service Connection 1., 2. Entitlement to service connection for left and right knee disabilities, to include as secondary to a service-connected disability, is denied. The Veteran contends that he has a current bilateral knee disability that is related (secondary) to his service-connected back and bilateral hip disabilities. Specifically, he contends that pain from his back and hip disabilities caused an altered gait, which either caused or aggravated his knee disabilities. The Veteran’s STRs are silent for any complaints, findings, treatment, or diagnosis regarding the knees. On September 1962 service separation examination, the lower extremities were normal on clinical evaluation; on a contemporaneous report of medical history, he denied any history of arthritis or rheumatism; bone, joint, or other deformity; lameness; or “trick” or locked knee. On July 2001 VA treatment, the Veteran requested medication for his knees after side effects of a different medication (Pravachol) caused joint pain in both knees. It was noted that he underwent left knee surgery in 1969. On February 2007 VA examination, the Veteran reported that both knees felt okay. He had undergone a left knee surgical procedure, and the left knee was now doing quite well. On August 2010 VA examination, the Veteran reported that his knees felt okay; the lower extremity symptoms that he associated with his back were mainly at the hip and thigh bilaterally. On March 2012 VA treatment, the Veteran reported occasional left knee pain that was getting worse. It was noted that in 1969 he had surgery for torn cartilage. On August 2013 VA treatment, he reported having some knee pain; the assessments included chronic knee pain/degenerative joint disease. October 2017 knee X-rays showed bilateral moderately severe narrowing of the medial joint compartment, and patellar spurring with small effusion on the right. The Veteran was informed of these results and offered an orthopedic consult, which he declined. On May 2018 VA examination, the Veteran reported that he injured his left knee in 1967 (after service) with a chainsaw while cutting trees, and he had surgical repair of the injury with an uneventful postoperative course. He reported developing pain in both knees in the early 2000s. Following a physical examination, the diagnosis was degenerative arthritis of both knees, and right knee joint effusion, as shown on X-ray. The examiner opined that the claimed bilateral knee conditions are less likely than not (less than 50% probability) proximately due to or the result of the Veteran’s service-connected back condition. The examiner opined that there is no anatomical relationship between the knees and back. In an August 2018 addendum opinion, the VA examiner opined that the Veteran’s claimed bilateral knee condition is less likely than not (less than 50% probability) proximately due to, the result of, or aggravated beyond its natural progression by his service-connected bilateral hip condition. The examiner opined that there is no anatomical relationship between the knees and back/hips. At the July 2019 Board hearing, the Veteran testified that he has to use a cane to assist walking. He testified that he noticed problems with his knees during service and the knee pain has continued since service. He testified that he first sought treatment for his knees with a private physician in 1967 or 1968, for four or five months; he later sought VA treatment in 2000, with no treatment in between. He testified that he had to change the type of work he did and the way he walked because of his back and hip pain, and he believes his altered gait aggravated his knees. On December 2020 VA examination, the Veteran was noted to have an antalgic gait and used a cane for back, hip, and right knee pain. He reported that he injured both knees in 1957 in a motor vehicle accident in service; he did not remember anything else about how his knees were injured or if he received care for his injuries. The examiner noted that no record of this event was found in the records. The Veteran reported that he drove a truck in service and chauffeured the base commander around. He reported that his right knee hurt, and his left knee was fine; he reported that the sawmill where he worked paid for his left knee surgery following an injury in 1967, and he had right knee arthroscopy for torn cartilage in 1969. He reported that he started having chronic bilateral knee pain in the early 2000s. The examiner opined that the Veteran’s bilateral knee degenerative arthritis is less likely than not (less than 50 percent probability) proximately due to, the result of, or aggravated by, his use of a cane, abnormal gait, and/or pain upon weightbearing related to his service-connected disabilities of the lumbar spine, left hip/thigh, right thigh, and/or right great toe. The examiner noted that the Veteran uses a cane for back, hip, and knee pain, and opined that there is no evidence that use of a cane, if done properly, causes knee arthritis. The examiner noted that the Veteran’s is antalgic and opined that it is likely due to the combination of back, hip, and knee pain, and that the gait is not likely to have caused his arthritis. The examiner explained that pain on weightbearing is a symptom of his conditions, and not the cause. The examiner noted that the Veteran is overweight and 82 years old, and that arthritis is caused from wear and tear. The examiner noted that the Veteran was a driver in service and then worked at a sawmill, where he retired. The examiner noted that, per the medical literature, 40% of men over age 50 have knee arthritis, and the risk of symptomatic arthritis increases with age; obesity is a large risk for knee arthritis as individuals with a BMI over 30 were 6.8 times more likely to develop knee osteoarthritis than normal-weight controls. The examiner further noted that a heavy physical workload was the most common occupational risk factor for knee arthritis, such as for workers in construction, firefighting, agriculture, fisheries, forestry, and mining. The examiner opined that it is more likely than not that the Veteran’s knee arthritis is due to age, obesity, and occupational wear and tear, noting that the records show he worked in forestry, did construction on his own home, is 82 years old, and has been overweight for many years. Regarding aggravation, the examiner noted that the October 2017 knee X-rays showed moderate to severe medial joint arthritis and patella spurring, and opined that this is not more than she would expect on an X-ray of an obese octogenarian and is natural progression; aggravation beyond natural progression might manifest as tricompartmental arthritis with bone on bone medially and laterally. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after service may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, to include arthritis, may be presumed to be service-connected if manifested to a compensable degree within a specified period postservice (one year for arthritis). 38 U.S.C. § 1137; 38 C.F.R. §§ 3.307, 3.309(a). Nexus of a chronic disease listed in § 3.309(a) to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service connected. VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, and any increase in severity due to the natural progress, from the current level. 38 C.F.R. § 3.310(b). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has established service connection for chronic muscular strain and degenerative instability, lumbar spine; left leg pain in the hip and thigh; bilateral hearing loss; tinnitus; right hip arthritic condition with synovitis; and residuals of fracture, right great toe. Disabilities of the right knee or left knee are not shown to have been manifested in service and are not noted in postservice clinical records in the record prior to 2001. While he has a history of job-related knee injury and knee surgery in the late 1960’s, records of such are unavailable. Notably, his hearing testimony omitted mention of such, but the Board finds his multiple reports in a clinical context to treatment providers and on 2018 and 2020 VA examinations to be persuasive evidence that the work injury and left knee surgery in 1969 occurred. Accordingly, service connection for such disabilities on the basis that any they became manifest in service and persisted, or on a disease presumptive basis (for arthritis of the knees) under 38 U.S.C. §§ 1137; 38 C.F.R. §§ 3.307, 3.309(a) is not warranted. The Board finds that the Veteran’s report [for the first time] on 2020 VA examination that he sustained (undocumented in service and not reported prior to 2020) bilateral knee injuries in a 1957 MVA, with continuing knee complaints since then to be self-serving and not credible; besides being other undocumented, they are inconsistent with by all his previous reports of medical history pertaining to disability, and contradicted by some of those reports. Therefore, it is not shown by the record that the Veteran’s right knee or left knee disabilities are related directly to his active duty service. The earliest documented postservice clinical notation of complaints pertaining to either knee is in 2001, approximately 39 years after service. VA examiners have opined that it is less likely than not that the Veteran’s right or left knee disabilities were incurred during, or caused by, his military service. Regarding secondary service connection, the December 2020 VA examiner opined that it is less likely than not that the Veteran’s right knee or left knee disabilities were caused or aggravated by his service-connected back or hip disabilities. Addressing the stated theory of entitlement, that the knee disabilities are due to an altered gait due to pain from back, hip, and knee disabilities, the examiner cited to factual data and medical principles, noting that while the Veteran did have an antalgic gait due to such pain, and used a cane to assist in ambulation, with proper cane use such would not have impacted on causing or increasing knee arthritis. Regarding aggravation, the examiner, citing to specific recorded clinical findings, explained that the Veteran was not shown to have the type of knee pathology that would appear if there was beyond normal progression of knee arthritis disability. The provider identified (citing to statistical support) more likely, non-service-related, alternate etiological factors for the Veteran’s knee disabilities, including his physical labor occupation in forestry, the aging process and obesity. The opinion is probative evidence in the matter, and the Board finds it persuasive. Whether the Veteran’s low back or bilateral hip disabilities caused or aggravated his right knee or left knee disabilities is a medical question beyond the scope of common knowledge and incapable of resolution by lay observation; it requires medical expertise. The Veteran is a layperson; consequently, his own opinion is not competent evidence in these matters. See Jandreau, supra. He has not submitted a medical opinion in support of these claims (or identified any medical provider who has offered such opinion). The preponderance of the evidence is against these claims, and the appeals in the matters must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.