Citation Nr: 21021939 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-16 307 DATE: April 14, 2021 ORDER Entitlement to service connection for a left knee disorder is denied. FINDING OF FACT The Veteran’s left knee disorder was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for left knee disorder are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army National Guard from November 1988 to March 1989 and active duty in the U.S. Army from April 1990 to March 1992. This appeal arises from a March 2014 rating decision denying service connection for a left knee disorder by the Department of Veteran’s Affairs (VA) Regional Office (RO). This matter was previously before the Board of Veterans’ Appeals (Board) twice, first in January 2019 and most recently July 2020. A review of the claims file shows there has been substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for further consideration under the legacy framework. Service Connection Under the relevant law and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303 (d). For the showing of a 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. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). In this case, “arthritis”, is a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74; Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, 38 U.S.C. § 1154 (a) requires VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a left knee disability. The Veteran contends that his military service aggravated his left knee injury from childhood. He also contends that his left knee was incurred from carrying heavy packs while marching in service. The first element of service connection, a current disability, is met after affording the Veteran the benefit of the doubt. Even though the Veteran does not have a current diagnosis of a specific injury, the Board is mindful that pain resulting in functional impairment can meet the requirement for a current disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, the second element of service connection, an in-service injury, illness, or occurrence is not supported by the evidence of record. Review of the record shows no complains of any knee pain in or within one year of service. See e.g., June 1991 Airborne Examination; March 1992 Reassignment Orders (Reciting that the Veteran is “released from active duty not by reason of physician disability.”) The only evidence of an in-service element is the Veteran’s subsequent testimony provided in the context of his claim for VA compensation. In fact, a 1994 examination found the Veteran’s extremities and their joints to be within normal limits. See September 1994 Phoenix VA Examination. The first complaint of left knee pain is in July 2013, when the Veteran submitted his claim for service connection. At the time, the Veteran claim his military service worsened a childhood of a left knee injury. In his February 2017 hearing testimony the Veteran stated that he had injured his left knee playing football prior to service. However, these assertions are not supported by, and are inconsistent with the objective medical evidence of record. In his July 1988 entrance examination, the Veteran reported, and the examiner noted, a right knee injury playing basketball prior to service. See July 1988 Enlistment Physical. The left knee was not complained of, nor did the Veteran report that he had previously injured it. As such, the Veteran’s statements of his knee injuries are inconsistent with the statements he gave on enlistment. Similarly, the Veteran claimed that he was provided injections to his left knee by the Phoenix VA medical center. A review of those records does not indicate or support any such treatment for his left knee. As stated above, a September 1994 Phoenix VA examination found the Veteran’s extremities to be within normal limits without joint effusions. The Veteran also did not complain of any knee pain at the 1994 examination. Because the Veteran’s testimony and statements at the time of and after filing for benefits are inconsistent with the Veteran’s prior statements and the medical record, they are granted no probative weight. The third element of service connection, a medical nexus opinion between a current disability and service, is also not met. The latest opinion of record is an October 2020 VA addendum opinion which opined that any left knee disorder that the Veteran may have is less likely than not incurred in or caused by the Veteran’s service. All other opinions, while consistent with the October 2020 opinion have previously been found inadequate for one reason or another by the Board. See July 2020 and January 2019 Board Remand Decisions. The October 2020 opinion is based on a review of the entire 4220-page record before the examiner at the time. It considered the Veteran’s lay statements regarding progressively increasing knee pain dating back to in-service physical fitness activities, including the Veteran’s activities while deployed. However, there is nothing other than the Veteran’s statements to support a connection. As noted above, these statements are self-inconsistent and inconsistent with the evidence of record. The examiner opined that it would not be presumptive to assume if the carrying of equipment or physical fitness activities caused knee problems, that there would be some complaints in the record. The Board agrees with the examiner’s opinion because it notes that the Veteran has a history seeking out treatment for injuries sustained shortly after their occurrence both in service and afterwards. For example, the Veteran sought treatment for his injured nose multiple times while in-service. See Veteran’s Service Treatment Records. The Veteran’s contentions of when his knee pain started would have been prior to these examinations but there are no complaints of knee pain. The Veteran also sought treatment for a September 2013 back injury through worker’s compensation right after sustaining the injury. In fact, the Veteran stated to a medical treatment provider that was treating both his back and left knee the same way, with Aspirin. See November 2013 Treatment note. However, there are no complaints or records of the Veteran seeking treatment for his left knee prior to this, including the September 1994 evaluation. Therefore, the preponderance of the evidence shows that the Veteran’s left knee injury is the type of injury that the Veteran would have sought treatment for if it had occurred when and how he described it. Further, for these reasons continuity of symptomatology cannot be established as the Veteran did not start complaining of his left knee until decades after service. Based on the reasons above, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection of a left knee disorder. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt rule does not apply, and the Veteran’s claim must be denied. D. C. JOHNSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.