Citation Nr: 21021421 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-15 889 DATE: April 12, 2021 ORDER Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability, is denied. FINDING OF FACT The most probative evidence is against a finding that the Veteran’s left knee disability is related to service or is caused or aggravated by his right knee disability. CONCLUSION OF LAW The criteria for service connection for a left knee disability, to include as secondary to a service-connected right knee disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from June 1969 to January 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018 and November 2019, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim for further development. After attempted compliance with the associated remand directives, the case is now before the Board for further consideration. The Board notes that following the September 2018 and November 2019 Board decisions, multiple efforts were made by VA to contact the Veteran and obtain a VA examination and needed etiology opinion. See July 2019 Exam Request; October 2020 Exam Request Modification. However, after extensive efforts, it was deemed that the Veteran could not be reached and his phone number and address are no longer valid. See October 2020 VA Form 27-0820 Report of General Information. The Board additionally acknowledges that VA has deemed the Veteran’s current whereabouts unknown. As such, the Board finds that there has been substantial compliance with the Remands and adjudication of his appeal must go forward based on the evidence of record. See 38 C.F.R. § 3.655 (when a claimant fails to report for an examination scheduled in conjunction with a compensation claim, the claim shall be rated based on the evidence of record; Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that that “[t]he duty to assist is not always a one-way street.” If a veteran desire’s help with his claims, he must cooperate with VA’s efforts to assist him, to include reporting for scheduled examinations). Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. Lay 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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). When there is an approximate 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). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background and Analysis The Veteran contends that his left knee disability is related to active service, to include as secondary to his service-connected right knee disability. The Veteran’s service treatment records (STRs) demonstrate the Veteran hurt his left knee while running in service. See July 1969 STRs. In January 2012, the Veteran first underwent a VA examination for his left knee disability. The examiner opined that the Veteran’s left knee disability was less likely than not proximately due to or the result of the Veteran’s right knee disability. In reaching their rationale, the examiner noted the Veteran injured himself while feeding chickens around October 2011 and the clinical encounters at the VA confirm that his medical attention started around that time. Therefore, the current left knee injury appeared to be a recent injury with little evidence that the right knee disability was the direct cause of the left knee injury. In March 2016, the Veteran underwent a second VA examination for his left knee disability. The examiner opined that the Veteran’s left knee disability was less likely than not incurred in or caused by service. According to medical literature, and consistent with the Veteran’s October 2011 medical history, meniscus tears are usually caused by twisting or turning quickly. The examiner found that there was no objective evidence in the record that showed the Veteran’s left knee disability was incurred in, caused by, or permanently aggravated beyond its natural progression by the Veteran’s right knee disability. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a left knee disability to include as secondary to a service-connected disability is not warranted. As there is a current diagnosis of a left knee meniscal tear and left knee cartilage restoration surgery, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Notably, while the Veteran’s service treatment records demonstrate that the Veteran hurt his left knee while running in service in July 1969, the Board notes that the Veteran’s service treatment records are negative for complaints or treatments for a chronic left knee disability to include at his December 1971 separation examination. Additionally, the only medical opinion addressing the etiology of the left knee disability weighs against the claim as the March 2016 VA examiner opined that the Veteran’s left knee disability was less likely than not incurred in or caused by service. None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for a left knee disability is not warranted on a direct basis. Regarding service connection on a secondary basis, the Board again notes that the Veteran asserts that his left knee disability is either caused or aggravated by his service-connected right knee disability. However, the Board finds that the weight of the evidence is against a finding that the Veteran’s current left knee disability is etiologically related to the Veteran’s service-connected right knee disability or by any other service-connected disability. Notably, the only medical opinion addressing the etiology of the left knee disability on a secondary basis weighs against the claim. Specifically, the January 2012 VA examiner opined that the Veteran’s left knee disability was less likely than not proximately due to or the result of the Veteran’s right knee disability. In reaching their rationale, the examiner again noted the Veteran injured himself while feeding chickens around October 2011 and therefore, the current left knee injury appeared to be a recent injury with little evidence that the right knee disability was the direct cause of the left knee injury. None of the competent medical evidence currently of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. The Board again notes that on two occasions additional medical opinions regarding service connection were attempted to be obtained, but the Veteran was unavailable to be scheduled for these examinations. The Board again the Board finds that the RO substantially complied with the September 2018 and November 2019 remand directives, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board’s remand instructions were substantially complied with); Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (holding that “the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). Consequently, entitlement to service connection for a left knee disability is not warranted on a direct or secondary basis. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a left knee disability. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). (Continued on the next page)   The Board notes the Veteran’s contentions regarding the etiology of his claimed left knee disability. To the extent that the Veteran himself contends that a medical relationship exists between his claimed current left knee disability and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that a left knee disability is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran and his representative do not have the medical expertise to provide an opinion regarding the claimed left knee disability etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the VA examiners provided detailed rationales in support of their opinions and cited to the relevant evidence. For this reason, the VA examiners’ opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for a left knee disability. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). James A. DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, Associate 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.