Citation Nr: 21016131 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 12-22 951 DATE: March 19, 2021 ORDER Entitlement to service connection for a right knee disability, to include gouty arthropathy, is denied. FINDINGS OF FACT 1. The Veteran’s gouty arthropathy of the right knee was not incurred during, and is not otherwise related to, the Veteran’s period of active service. 2. Symptoms of the Veteran’s gouty arthropathy of the right knee have not been continuous since separation from service and did not manifest to a compensable degree in the year following separation from service. 3. The Veteran’s gouty arthropathy of the right knee is not caused, or aggravated, by any service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a right knee disability, to include gouty arthropathy, have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1991 to September 2003 and from February 2007 to November 2007. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claim was by the Board for additional development in February 2015, November 2017, February 2019, and September 2020. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for a right knee disability In January 2011, the Veteran filed a claim for service connection, in pertinent part, for a right knee disability. This claim was denied in a March 2012 rating decision that the Veteran appealed to the Board. Unfortunately, after review of the evidence, the Board finds that entitlement to service connection for a right knee disability, to include gouty arthropathy, is not warranted. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be awarded if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). The continuity of symptomatology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection for the chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker, at 1331. Additionally, service connection may be granted for disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). "When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may also be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). A Persian Gulf veteran is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e)(2). In this case, the Veteran's records confirm his service in Iraq during a period of active service. Accordingly, the Board finds the Veteran is a Persian Gulf veteran and the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 may apply if the Veteran is found to have a qualifying chronic disability. The term "qualifying chronic disability" means a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome; fibromyalgia, or functional gastrointestinal disorders (including, but not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia). 38 C.F.R. § 3.317 (a)(2)(i). For purposes of this presumption, the term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry: (1) determining the competency of the source; (2) determining credibility, or worthiness of belief, and (3) weighing its probative value. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The Board notes that the Veteran is competent to testify as to his perceived symptoms, such as his complaints of pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence indicates that the Veteran has a diagnosis of gouty arthropathy of the right knee during the period on appeal. The Veteran contends that his current disability is related to one of his periods of active service. In a January 2012 examination, the Veteran stated that he was seen in the service for a right knee strain as a result of training with the Marines for daily runs of three to five miles with over 100 lbs. of gear. He stated that he was not placed on a profile, but he received treatment with an Ace bandage, ice and Motrin. The Veteran stated that his symptoms in his right knee were sporadic and that his problems were with his left knee “95 percent of the time.” He reported pain in the right knee, but denied swelling, stiffness, weakness and instability. In a March 2018 examination, the Veteran reported that he has suffered a continuously debilitating right knee condition ever since striking his knee when his vehicle struck a pylon at Balaad Air Base in Iraq in 2007. Review of the Veteran’s service treatment records indicates that the Veteran was seen for right knee pain in January 1992, February 1992, April 1992 for bursitis, which was treated with NSAIDs, ice, and light duty. In June 2000, the Veteran was also seen for complaints of right knee pain that had persisted for four days. On a Report of Medical Assessment in June 2003 prior to separation from active service, the Veteran reported a history of “knee trouble”; however, the examiner’s summary notes that this report relates to iliotibial band syndrome (ITBS) of the left knee. Further, on a Report of Medical History completed in February 2007 prior to the Veteran’s deployment to Iraq, the Veteran reported a history of “knee trouble” that the comments section also stated was related to ITBS of the left knee. A pre-deployment medical evaluation did not indicate any right knee complaints at that time. On a Post-Deployment Health Assessment in October 2007, the Veteran stated his health stayed the same since his prior evaluation and denied swollen, stiff or painful joints. While the Veteran has a current diagnosis of a gouty arthropathy of the right knee and reported periodic complaints of right knee symptoms during his period of service, the Board finds that the evidence of record weighs against a finding that service connection is warranted on a presumptive, direct, or secondary basis. While arthritis is a chronic condition that warrants presumptive service connection if the condition manifests during service or within a year of separation from active service, the Board finds that continuous symptoms of gouty arthropathy of the right knee did not have onset during service or since within a year of separation from either period of active service. The Board notes that since 2013 the Veteran has sought treatment for swelling of his right knee and had it drained on more than one occasion. During his January 2012 VA examination, the Veteran denied a history of swelling, stiffness, or redness of the right knee. The only recurrent symptom reported was pain. Such symptoms don’t match up with the symptoms reported regarding his gouty arthritis. Moreover, the June 2019 VA examiner stated that the evidence does not demonstrate evidence of symptoms of gout, including acute joint pain consistent with gout, during his active service. As the Veteran’s gouty arthropathy of the right knee did not have onset during service or within a year of separation from active service, the Board finds that presumptive service connection is not warranted. 38 C.F.R. §§ 3.307, 3.309. The Board also finds that presumptive service connection is not warranted based upon diagnosis of a “qualifying chronic disability” that became manifest since service in the Southwest Asia theater of operations. The evidence does not support that the Veteran has a “qualifying chronic disability” resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms. Rather, the Veteran has a diagnosis of gouty arthropathy of the right knee that has been explained by the October 2020 examiner as having been caused by a buildup of urate crystals due to high levels of uric acid in the Veteran’s blood. As the Veteran’s symptoms are caused by a diagnosis of a known condition that is not a medically unexplained chronic multisymptom illness, presumptive service connection of a “qualifying chronic disability” is not warranted. 38 C.F.R. §§ 3.317. The Board also finds that the evidence of record weighs against a nexus between the Veteran’s current right knee disability and any period of active service on a direct basis. The Board finds probative the opinion provided by the June 2019 VA examiner that the Veteran’s right knee disability was less likely than not caused by either period of the Veteran’s active service. The examiner provided a thorough rationale that is supported by the evidence of record, including consideration of the Veteran’s lay statements, his service treatment records, and his medical records since service. The examiner noted that there is no medical documentation of symptoms of gout during the Veteran’s active service and that examinations at separation in 2003 and 2007 did not demonstrate gout or right knee disability. As such, the Board finds the June 2019 VA medical opinion to be highly probative evidence weighing against a relationship to between any current right knee disability and any period of the Veteran’s active service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent that the Veteran has provided an opinion that his current right knee condition is related to his period of service and his training as a field medic makes him competent to provide such an opinion, the Board finds the opinion provided by the 2019 examiner to be of greater probative value. Specifically, the Board finds that the Veteran’s opinion lacks credibility as his reports regarding the onset of his condition changes significantly between January 2012 and March 2018. During the Veteran’s 2012 examination, the Veteran did not report any relationship between his right knee symptoms and his service in Iraq in 2007. Instead, he reported periodic symptoms since training with the Marines in 1992. At that time, the Veteran denied symptoms consistent with his current gouty arthropathy and specifically denied any history of swelling, stiffness or redness. Then, in 2018, the Veteran only discussed a history of recurrent pain related to trauma during service in 2007. Based upon the inconsistencies in the Veteran’s reports, the Board finds any opinion provided by the Veteran to be of little probative value. See Caluza v. Brown, 7 Vet. App. 498 (1995). Additionally, the Veteran’s opinions that his right knee condition is due to in-service trauma in either 1992 or 2007, is outweighed by the opinion provided by the October 2020 examiner that gouty arthropathy is not caused by an injury or trauma, but rather is due to buildup of urate crystals due to high levels of uric acid in the bloodstream and that the Veteran’s service treatment records do not provide evidence of symptoms of gout. None of the other competent evidence of record provides evidence of a nexus between the Veteran’s current right knee disability and any period of active service. Accordingly, the Board finds that the weight of the probative evidence of record is against a nexus between any current right knee disability and either of the Veteran’s periods of active service. As such, the Board finds that service connection for a right knee disability, to include gouty arthropathy, is not warranted on a direct basis. 38 C.F.R. §§ 3.102, 3.303. Finally, the Board finds that service connection for a right knee disability is not warranted as secondary to any service-connected disability, including his service-connected left knee disability. The Board finds probative the opinions provided by the October 2020 VA examiner that the Veteran’s right knee arthropathy was less likely than not caused, or aggravated, by his service-connected left knee disability. The examiner explained that injury to the Veteran’s right knee from the service-connected left knee would not cause the Veteran’s condition as gouty arthropathy is not caused by trauma, but buildup of urate crystals in the bloodstream. As this opinion was thorough and considered the medical principles at issue, the Board finds it to be of significant probative value. See Nieves-Rodriguez. Additionally, the Board notes that an opinion linking the Veteran’s right knee disability to his service-connected left knee disability has not been provided, but rather merely raised by the Veteran’s representative in an August 2020 Informal Hearing Presentation. Accordingly, the Board finds that the probative evidence of record weighs against a finding that the Veteran’s right knee disability was caused, or aggravated by, any service-connected disability. 38 C.F.R. §§ 3.102, 3.310. (Continued on the next page)   In summary, the Board finds that the preponderance of the evidence weighs against a finding that any current right knee disability, to include gouty arthropathy of the right knee, was caused by either of the Veteran’s periods of active service or was caused, or aggravated by, any service-connected disability. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.M. Johnson, 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.