Citation Nr: 21015467 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-32 102 DATE: March 17, 2021 ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. FINDINGS OF FACT 1. The Veteran's right knee disorder did not have its onset during active service, is not otherwise shown to be related to service and arthritis did not manifest within one year of service discharge. 2. The Veteran’s left knee disorder did not have its onset during active service, is not otherwise shown to be related to service and arthritis did not manifest within one year of service discharge. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1975 to April 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision, which denied service connection for a right knee condition and service connection for a left knee condition. The Veteran perfected a timely appeal of that decision. In the Veteran's substantive appeal (VA Form 9), dated in February 2016, he requested a Board hearing in connection with his appeal. However, in a November 2017 correspondence, he canceled his hearing request. In September 2018, the Board remanded the case to the RO for further evidentiary development. Specifically, the Board directed that updated VA treatment records be obtained, that the Veteran be asked to identify all records of ongoing VA or private treatment and that a VA etiology opinion be obtained. Updated VA treatment records have been associated with the record, a July 2019 letter requested that the Veteran complete an appropriate authorization form to allow VA to obtain treatment records on his behalf and a VA etiology opinion was obtained in February 2020. Following the requested development, a supplemental statement of the case (SSOC) was issued in June 2020. The Board therefore determines that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection 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 establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, a presumption of service connection may be applied for certain chronic diseases, including arthritis, provided that the condition manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id., see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a right knee disorder 2. Entitlement to service connection for a left knee disorder The Veteran is seeking service connection for a bilateral knee disorder which he claims developed as a result of an in-service injury aboard the U.S.S. Kitty Hawk. The Veteran indicates that he continued to experience knee pain after service as a result of the injury. Service treatment records indicate that the Veteran was seen in October 1976 with complaints of falling through deck plates and striking both knees; he complained of tenderness on both knees with minimal swelling. The Veteran was diagnosed with avulsion of tibial tubercle. Following an orthopedic consultation on October 27, 1976, the Veteran was diagnosed with a contusion/abrasion. A December 1976 treatment note indicated that an X-ray study of the knees, performed in October 1976, was normal. In November 1978, the Veteran sought treatment for complaints of stiffness to the right knee; the impression was muscle spasm. However, the Veteran's January 1987 discharge examination was negative for any complaints or clinical findings of a right or left knee disorder. The Board has first considered whether the Veteran’s claim warrants service connection presumptively, based on the provisions of 38 C.F.R. §§ 3.307, 3.309(a). However, the Veteran’s condition did not manifest as arthritis within one year of his separation from service. The Veteran’s separation exams revealed no findings of arthritis or any knee issue at that time. Moreover, the Veteran was not diagnosed with bilateral knee pain until March 2015, approximately 35 years after his separation from service. As the Veteran’s arthritis was not manifest during service or within one year of separation, the provisions of 38 C.F.R. §§ 3.307, 3.309 are not for application in this matter. As for direct service connection, a February 2020 VA examiner reported diagnoses of left knee strain, Osgood-Schlatter abnormalities of the left knee and myospasm of the right knee. The examiner opined that the claimed conditions were less likely than not incurred in or caused by the claimed inservice injury, event or illness. The examiner noted that during service, the condition was acute only and there was no evidence of chronicity of care. The examiner noted that the Veteran bruised his left tibia bone over a prominence which is below the knee joint called the tibial tubercle in October 1976 and that the Veteran has a historical diagnosis of left knee strain, contusion and abrasion, as well as a historical diagnosis of right knee myospasm. The examiner stated that all four diagnoses are typically acute and not chronic in nature. The examiner explained that a lack of knee-related disability is upheld by a lack of chronicity of care, as evidence by a vast majority lack of post-injury service treatment record knee complaints/treatment and the lack of recent/current Primary Care knee complaints/treatment. The examiner further explained that a lack of disability is upheld by the fact that Osgood Schlatter type injury, as bone bruising (a.k.a. contusion, specifically of the tibial tubercle) with inflammation, is a self-limited process and more likely than not was an acute, and not chronic, disease process; he noted that this is upheld in the medical literature. Lastly, the examiner noted that a lack of disability is upheld by the fact that the Veteran, as recently as 2018, did not want to pursue knee treatment. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no contrary opinion of record. The Board notes that a March 2015 VA etiology opinion is also of record. However, the Board found this opinion to be inadequate as it was internally inconsistent. Therefore this opinion is being afforded little, if any, probative weight. The Board acknowledges the Veteran's contention that he developed a bilateral knee disorder as a result of a fall aboard the ship resulting in injury to his knees. Lay testimony can be competent regarding features or symptoms of injury or disease, including its origin, when the features or symptoms are within his personal knowledge and observations and the questions are not complex. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In the instant case, however, the Board finds that the question regarding the relationship between a current bilateral knee disorder and any instance of his military service to be complex in nature. The Veteran has not demonstrated that he has expertise in medical matters. As such, his opinion is not competent evidence. Put simply, the evidence does not establish that the Veteran had a chronic bilateral knee disorder during active service or that a current bilateral knee disorder is otherwise related to active service. Because there is no approximate balance of positive and negative evidence, the rule affording the Veteran the benefit of the doubt does not help the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. The appeal as to these issues must be denied. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Suzie S. Gaston, 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.