Citation Nr: 21016238 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 11-32 302 DATE: March 22, 2021 ORDER Entitlement to service connection for a bilateral knee disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s bilateral knee disability manifested in service to a compensable degree within the applicable presumptive period; or is otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a bilateral knee disability are not met. 38 U.S.C. §§ 1101, 1110, 1116, 1131; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the Army from September 1978 to June 1982 and December 1990 to September 1991. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. In February 2017 and October 2019, the Board remanded the claim for additional development. In October 2019, the Board remanded the claim again finding the August 2018 addendum opinion failed to explain the examiner’s changed opinion as to whether the Veteran had a current diagnosis related to his bilateral knees. The record showed complaints of knee pain and imaging revealed degenerative changes. The Board sought clarification of the Veteran’s current bilateral knee diagnosis, and then an opinion as to whether there was a nexus between his current disability and his military service. The Veteran underwent a new VA examination in January 2020. Therefore, there was substantial compliance with the October 2019 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a September 2020 post-remand brief, the Veteran’s representative challenged the adequacy of the January 2020 VA examination and the credentials of the VA examiner, a nurse practitioner. The representative argued that instead of providing an opinion on the current diagnosis and how it related to service, the examiner gave a summary of her claims file review and noted that the Veteran did not submit a service connection claim for his knee until 2002. Therefore, the case should be remanded for another opinion by a specialist. The Board finds there is no evidence that the medical provider is not competent or qualified to render a medical opinion in this case. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) (holding that VA examiners are presumed qualified to render competent medical opinion(s)); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). Additionally, the report of the January 2020 VA examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Thus, the Board finds that the January 2020 VA examination report is adequate for purposes of rendering a decision in the instant appeal. Barr v. Nicholson, 21 Vet. App. 303 (2007). The record reflects that the Veteran received a letter in October 2020 advising the Veteran that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, it was found that the Veteran did not have a pending hearing request. He provided testimony in a hearing with a Veterans Law Judge in November 2016. A transcript of that hearing is in the evidence of record and was relied on in adjudicating the claim. Since the October 2020 letter, neither the Veteran nor his representative requested another hearing. Applicable Law and Regulations Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; if they manifested to a compensable degree within a presumptive period following separation from service; or if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 C.F.R. § 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In the absence of presumptive service connection, the right to compensation for a present disability on a direct basis should be considered. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Direct service connection can be established if the Veteran shows (1) the existence of a present disability, (2) an 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. 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Due consideration must be given to all pertinent medical and lay evidence in evaluating a claim for service connection for any disability. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence that does not require the proponent to have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Lay statements can be considered competent to establish a diagnosis when the layperson is competent to identify the medical condition, reports a contemporaneous medical diagnosis, or describes symptoms which support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Once evidence is deemed competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465 (1994). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background In May 1978, the Veteran’s service treatment records showed normal clinical findings. Two years later, he complained of a right ankle injury. He had twisted the ankle during physical training. In May 1982, he reported issues with his eyes and hepatitis. He denied arthritis, rheumatism, and bursitis. His clinical findings were normal. The record showed the Veteran complaining of pain in the right lower leg in June 1986. He was assessed with an apparent muscle spasm due to exercise. He reported neck and shoulder pain in December 1990 and was restricted from lifting heavy weight in June 1991. The record is silent for issues with his knees. He underwent a general medical VA examination in September 1993. Examination found pain in the right knee with running. The right knee flexion was 126 degrees, extension was zero degrees, rotation was zero degrees, abduction was zero degrees, and adduction was zero degrees. The examiner diagnosed pain in the right knee with normal range of motion. The Veteran’s treatment records show an evaluation of the left knee in December 1997. He reported twisting the knee when he slipped on a wet floor. Examination found his joint was stable and there was no pain with passive range of motion. He exhibited mild tenderness to palpation over the quad insertion. An x-ray of the left knee found no evidence of fractures or other acute osseous abnormalities. The bone appeared normally mineralized and to be in an adequate alignment. He was diagnosed with a left knee strain. In June 1998, his treatment records show him complaining of vague knee pain. The Veteran was diagnosed with arthralgia with severe pain in the knees in March 2001. Examination in April 2001 found minimal crepitation in the knees. Doctors noted his pain was possibly due to degenerative joint disease. By October 2001, the Veteran reported the arthritis in his knees was well controlled with ibuprofen and did not limit his normal activities. Physical examination found he had full range of motion in his lower extremities. There was no evidence of crepitus or tenderness. His treatment records continued to note knee pain through March 2004. X-rays of the bilateral knees in April 2004 revealed very minor degenerative changes at the medial joint space on the right with no significant degenerative changes or other bone or joint abnormalities otherwise seen. The Veteran underwent a VA examination in April 2017. He reported an intermittent, moderate, sharp aching pain in his knees. This pain occurred with prolonged sitting, standing, walking, or running. He was diagnosed with patellofemoral pain syndrome bilaterally. Examination found the right knee had normal range of motion without pain in weight bearing, localized tenderness or pain on palpation, or crepitus. The left knee exhibited decreased range of motion with a flexion of zero to 130 degrees and extension of 130 degrees to zero. He had pain that did not result in functional loss. However, he had no pain with weight bearing, localized tenderness or pain on palpation, or evidence of crepitus. He performed repetitive use testing with at least three repetitions with no additional functional loss or decrease in his range of motion bilaterally. The examination was found neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or during a flare-up. He had no limitation in his functional ability with repeated use over time or during a flare-up due to pain, weakness, fatiguability, or incoordination bilaterally. He retained five out of five strength bilaterally. There was no evidence of ankylosis, recurrent subluxation, lateral instability, or joint instability. There was no pain in passive range of motion testing or non-weight bearing. Imaging of the bilateral knees revealed mild cartilage loss in the medial compartments. The April 2017 VA examiner opined the Veteran did not complain of knee problems and had a medically unexplained chronic multi-symptoms illness of unknown etiology that was a presumptive condition related to gulf war service. It was less likely than not that his bilateral knee disability was incurred in or caused by the undiagnosed illness during service. The VA examiner provided an addendum opinion in August 2018. The examiner opined the Veteran’s military service treatment records did not show any complaints or diagnosis of any knee condition. Therefore, it was less likely than not that the knee condition was incurred in or caused by service. The diagnosis of patellofemoral pain syndrome was given in error because the Veteran did not have a diagnosis of any bilateral knee condition. In January 2020, the Veteran underwent another VA examination. He was diagnosed with bilateral degenerative arthritis of the knees. He reported his knee pain began in basic training. He fell on ice while stationed in Germany in 1979 and went to sick call. He fell again in 1991 out of the back of a truck injuring his neck, shoulders, and knees. He contends that the injury to his neck and shoulders was so severe that he did not realize he was having a problem with his knees until 1993. At that time, he was required to run two miles for his physical fitness test and could not do it. At the time of this examination, he reported intermittent knee pain with movement, weight bearing, and weather changes. The left knee would occasionally give out. Examination found decreased range of motion in both knees. The right knee had a flexion of zero to 120 degrees and extension of 120 to zero degrees. The left knee had a flexion of zero to 110 degrees and extension of 110 to zero degrees. He exhibited no functional loss bilaterally. However, he had mild tibial tuberosity tenderness to palpation, pain with weight bearing, and evidence of crepitus. Repetitive use testing could be performed bilaterally with no additional loss of function or range of motion after three repetitions. The examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time bilaterally. Pain significantly limited his functional ability with repeated use over time. The right knee had decreased range of motion with a flexion of zero to 115 degrees and extension of 115 to zero degrees. The left knee had decreased range of motion with a flexion of zero to 105 degrees and extension of 105 to zero degrees. The examination was not conducted during a flare-up but was found medically consistent with the Veteran's statements describing functional loss during a flare-up. Both knees were assessed to have significant functional limitation due to pain during a flare-up. The right knee had decreased range of motion with a flexion of zero to 115 degrees and extension of 115 to zero degrees. The left knee had decreased range of motion with a flexion of zero to 105 degrees and extension of 105 to zero degrees. He exhibited five out of five muscle strength, had no evidence of ankylosis, no history of recurrent subluxation bilaterally, no history of lateral instability on the right side, and moderate lateral instability on the left side. The right knee exhibited no joint instability. The left knee exhibited 1+ anterior instability but had otherwise normal findings. There was no functional impairment of an extremity such that no effective functions remained other than that which would be equally well served by an amputation with prosthesis. There was no objective evidence of pain in non-weight bearing or in passive range of motion. His passive range of motion was the same as his active. His knee pain impaired his ability to stand or walk for long periods. He was unsure if his knees would prevent him from being able to use the stairs because he had COPD that prevented him from performing such activities. The January 2020 VA examiner opined the Veteran’s bilateral degenerative knee arthritis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted a September 1993 report that found a hernia as well as shoulder and neck issues prevented him from completing a two-mile run. Imaging of the Veteran’s knees in 2004 revealed very minor degenerative changes. The examiner found this was not unexpected for his age and many years of work in a kitchen. The diagnosis of patellofemoral pain syndrome and of no current knee condition by the April 2017 VA examiner appeared to be based on the subjective complaints of the Veteran. However, the January 2020 examiner found the record did in fact show mild degenerative changes in the 2004 knee x-rays. Analysis The Veteran contends that his bilateral knee disability began in basic training. In 1979, he fell on the ice while stationed in Germany and went to sick call. He fell again in 1991 out of the back of a truck injuring his neck, shoulders, and knees. He contends that the injury to his neck and shoulders was so severe that he did not realize he was having a problem with his knees until 1993. At that time, he was required to run two miles for his physical fitness test and could not do it. The Veteran was diagnosed with bilateral degenerative knee arthritis, which is a chronic disease under 38 C.F.R. § 3.309(a). However, this condition was not shown in service or shown to manifest to a compensable degree within one year of his release from active service. His service treatment records showed normal clinical findings in May 1978 and May 1982. He denied arthritis, rheumatism, and bursitis. In June 1986, he complained of pain in the right lower leg, and was assessed with an apparent muscle spasm due to exercise. The Veteran reported neck and shoulder pain in December 1990. However, his service treatment records were silent for issues with his knees. The Veteran underwent a general medical VA examination in September 1993. The examination noted pain in the right knee with running. The examiner diagnosed knee pain with normal range of motion. His bilateral degenerative knee arthritis was not shown by the evidence of record to manifest in service or to a compensable degree within one year of his release from active service. 38 C.F.R. §§ 3.309(a). As such, the Board analyzes service connection for bilateral degenerative knee arthritis under a direct basis. The Veteran has a current disability of bilateral degenerative knee arthritis. Therefore, the first Shedden element is met. The Veteran is competent and credible to establish an in-service injury to his knees. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran contends that his knee pain began in basic training. He reported a fall on the ice in 1979 while stationed in Germany, and again in 1991 out of the back of a truck injuring his neck, shoulders, and knees. He reported that the injury to his neck and shoulders was so severe that he did not realize he was having a problem with his knees until 1993. At that time, he was required to run two miles for his physical fitness test and could not do it. In his November 2011 Form 9, the Veteran reported he went to desert shield/storm. He had problems over there and returned home. His national guard service ended because he was unable to complete the two-mile run in under 18 minutes. However, he did not indicate if this was due to his knees. Giving the Veteran every benefit of the doubt, the undersigned finds he sustained an in-service injury to his knees. However, there is no causal relationship between the Veteran’s bilateral degenerative knee arthritis and his falls in service. His service treatment records showed normal clinical findings in May 1978 and May 1982. He denied arthritis, rheumatism, and bursitis. In June 1986, he complained of pain in the right lower leg, and was assessed with an apparent muscle spasm due to exercise. The Veteran reported neck and shoulder pain in December 1990. However, his service treatment records were silent for issues with his knees. The Veteran underwent a general medical VA examination in September 1993. The examination noted pain in the right knee with running. The examiner diagnosed knee pain with normal range of motion. He was diagnosed with knee arthralgia in March 2001. X-rays of the bilateral knees in April 2004 revealed very minor degenerative changes at the medial joint space on the right with no significant degenerative changes or other bone or joint abnormalities otherwise seen. The Board acknowledges the Veteran’s assertion that his bilateral degenerative knee arthritis was related to service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, as to the etiology of a particular claimed disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's bilateral degenerative knee arthritis was related to service, the Board finds that evidence was not competent as the Veteran was not shown to have the required training to diagnose the disability and opine as to its’ etiology. The Veteran underwent a VA examination in April 2017. He was diagnosed with patellofemoral pain syndrome bilaterally. Imaging of the bilateral knees revealed mild cartilage loss in the medial compartments. The examiner opined the Veteran did not complain of knee problems and had a medically unexplained chronic multi-symptoms illness of unknown etiology that was a presumptive condition related to gulf war service. It was less likely than not that his bilateral knee disability was incurred in or caused by the undiagnosed illness during service. The VA examiner provided an addendum opinion in August 2018. The examiner opined the Veteran’s military service treatment records did not show any complaints or diagnosis of any knee condition. Therefore, it was less likely than not that the knee condition was incurred in or caused by service. The diagnosis of patellofemoral pain syndrome was given in error because the Veteran did not have a diagnosis of any bilateral knee condition. Neither the April 2017 nor the August 2018 VA examinations were found adequate. The Board remanded the claim for clarification of the Veteran’s current bilateral knee diagnosis, and then should a current diagnosis be found an opinion as to whether there was a nexus between his current disability and his military service. Therefore, the April 2017 and August 2018 opinions were given low probative weight. In January 2020, the Veteran underwent another VA examination. He was diagnosed with bilateral degenerative arthritis of the knees. The examiner opined the Veteran’s bilateral degenerative knee arthritis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted a September 1993 report that found a hernia as well as shoulder and neck issues prevented him from completing a two-mile run. Imaging of the Veteran’s knees in 2004 reveled very minor degenerative changes. The examiner found this was not unexpected for his age and many years of work in a kitchen. The diagnosis of patellofemoral pain syndrome and of no current knee condition by the April 2017 VA examiner appeared to be based on the subjective complaints of the Veteran. However, the January 2020 examiner found the record did in fact show mild degenerative changes in the 2004 knee x-rays. The VA examination was highly probative evidence, as it relied on sufficient facts and data, and provided a rationale for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Hence, the probative evidence weighed against finding the Veteran’s bilateral degenerative knee arthritis was related to service. Based on the evidence of record, the Board finds that the third element of Shedden is not met. Consequently, entitlement to service connection for bilateral degenerative knee arthritis is not warranted. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Byers 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.