Citation Nr: 21021114 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 09-46 537A DATE: April 9, 2021 ORDER Entitlement to service connection for a left knee condition, claimed as secondary to service-connected diverticulitis and exposure to toxic herbicides is denied. FINDING OF FACT The Veteran’s left knee condition is not a result of his military service nor secondary to his service-connected diverticulitis. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee condition, claimed as secondary to service-connected diverticulitis and exposure to toxic herbicides have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from July 1958 to March 1981. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in November 2019 and is now ready for adjudication. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Additionally, when aggravation of a Veteran’s nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). Entitlement to service connection for a left knee condition, claimed as secondary to service-connected diverticulitis and exposure to toxic herbicides The Veteran is seeking service connection for his left knee condition. He has asserted that his left knee condition is due to running double time in service and as a result of an injury he sustained on the treadmill while recovering from an operation for diverticulitis. The record does not reflect that the Veteran’s left knee condition began in service or is otherwise directly related to service. In fact, while the Veteran indicated “yes” for swollen or painful joints during his January 1981 separation examination, he indicated “no” for knee problems. Further, the Veteran’s post service treatment records do not reflect evidence of knee pain until a 2004 note from a visit to the GI clinic, which was approximately 23 years after the Veteran left service. Given the gap in time between the Veteran separation from service and the diagnoses of his left knee condition, the Board determines that continuity of symptoms cannot be established based upon the evidence of record. As discussed above, the Veteran asserts that his left knee condition is a result of an injury sustained on the treadmill while recovering from a diverticulitis operation. Therefore, the Board must determine whether his left knee condition is secondary to the Veteran’s service-connected diverticulitis. However, after a review of the evidence, the Board finds service connection must be denied, as the preponderance of the evidence is against such a finding. As part of this claim, the Board recognizes the statements regarding the Veteran’s history of symptoms. In this regard, while the Veteran is not competent to diagnose a condition such as arthritis, as they may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is “medical in nature,” he and others are nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is insufficient to warrant service connection on the Veteran’s statements alone. The Veteran reported that he has experienced left knee symptoms since service. In this case, the Board finds that the weight of the evidence does not support the Veteran’s contentions and the clinical evidence of record does not demonstrate a diagnosis of a left knee condition until February 2009, approximately 28 years following service. Next, service connection may also be granted when the evidence establishes a medical nexus between his claimed disorders and either his active duty or another service-connected disability. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s left knee condition to active duty or another service-connected disability, despite his contentions to the contrary. The Veteran underwent several VA examinations to address his left knee condition. A January 2009 examiner opined that he could not resolve the issue of the Veteran’s left knee condition without sorting to mere speculation. In support of this statement, the examiner stated that there is no medical documentation concerning his left knee until 2008 which is 27 years post service and ten years post reported but undocumented incident in 1998. During a VA examination in July 2016, the examiner opined that the Veteran’s left knee condition was less likely than not related to his military service or a result of his diverticulitis. In support of his opinion, the examiner noted no evidence of a left knee condition in the Veteran’s service treatment records. Further, he stated that based on a review of STRs, private medical records, history and physical exam, no clear relationship has been established between the Veteran's service-connected gastrointestinal condition and his left knee condition. The Veteran was provided with additional VA examinations in October 2017, January 2019, and January 2020. The October 2017 VA examiner opined that the Veteran’s left knee condition was less likely than not incurred in or caused by the claimed in-service injury event or illness. In support of this opinion, the examiner stated that “After a literature search there is no objective evidence to sufficiently link osteoarthritis to exposure to herbicidal agents or diverticulitis. There is no objective evidence showing complaints of or treatment for knee condition during service that would lead to his current condition. Further, there is more than a 25- year gap from time of service until x-ray diagnosing arthritis in 2008 without documentation of treatment for knee condition. Therefore, a nexus is not formed. The January 2019 examiner opined that the Veteran's left knee disability is less likely than not caused by or aggravated by diverticulitis, and/or diverticulitis due to "toxins released in the Veteran's body as a result of diverticulitis, and/or exercise necessitated by diverticulitis, and/or a mixture of exposure to herbicide agents in Vietnam and diverticulitis. In support of this opinion, the examiner stated that if the Veteran's left knee condition were caused by "exercise necessitated by diverticulitis," we would expect the condition to be bilateral and symmetric. After all, the Veteran uses both knees approximately equally when standing, walking, exercising necessitated by diverticulitis, etc. We would thus expect the Veteran to have severe arthritis in both of his knees and bilateral knee replacement surgeries. This is not the case. Further, the examiner stated that a review of the current list of "diseases related to Agent Orange" provided by the U.S. Department of Veteran's Affairs includes no conditions related to the knees or musculoskeletal system (with the exceptions of multiple myeloma and soft tissue sarcomas that are not applicable here) or the gastrointestinal system. Finally, the January 2020 VA examiner opined that the Veteran’s left knee condition was less likely than not related to his military service or an injury sustained on the treadmill as a result of treatment for diverticulitis. In support, the examiner stated that one injury during treadmill activities cannot be opined as the proximal cause for development of his OA nor are toxins the cause for OA of knee joints unless there was a knee joint infection that might accelerate early development of normal aging knee OA. There is no service data that a knee condition developed earlier than is usual or any event or illness or injury was the proximal cause of his left knee OA. Additionally, the examiner stated while the duties and physical training in service can contribute to development of knee joint OA this opinion would be mere speculation. Most persons develop some degree of knee joint OA as normal part of aging by early 50 age and a general statement like this cannot be individualized to any one person. Further, there is no service data that a knee condition developed earlier than usual or any event, injury, or illness was the proximal cause of his left knee OA. In addressing the Veteran’s claims, the Board has also considered the statements made by the Veteran relating his left knee condition to his military service and service-connected diverticulitis. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). The Board notes the December 2009 statement from the Veteran’s treating physician relating his knee pain to his diverticulitis. The physician noted that the Veteran reported with increased exercise, he experiences increased knee pain. However, there was no clinical evidence attached to this statement, and no indication that the Veteran’s claims file or any other submitted evidence was examined in the preparation of the opinion. As such, the Board finds the VA examiner’s opinions more probative, as the examiner reviewed the record and provided a thorough and well-reasoned opinion, citing and quoting pertinent medical authority in support of the opinions proffered. In this case, the Veteran is not competent to provide testimony regarding the etiology of a knee condition. See Jandreau, 492 F.3d at 1377, n.4. Because a knee condition is not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the Veterans statements, by themselves, are insufficient to establish service connection. Therefore, a preponderance of the evidence is against a finding that any left knee condition is caused by the Veteran’s diverticulitis or is otherwise related to service in any way. Accordingly, service connection for a left knee condition, to   include as secondary to service-connected diverticulitis or exposure to toxic herbicides must be denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Erica Vample, 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.