Citation Nr: 21022013 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-30 332 DATE: April 14, 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 Veteran’s left knee disability is not secondary to a service-connected disability, and is not otherwise related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for a left knee disability have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1993 to June 1998. This matter comes to the Board of Veterans’ Appeals (Board) from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a left knee disability. The Board most recently remanded the claim in November 2020 for further development. The Veteran seeks service connection for a current left knee disability, diagnosed upon VA examination during the appeal osteoarthritis. Thus, the question becomes whether this left knee disability is related to her military service. As an initial matter, there is a question as to whether the Veteran’s left knee disability preexisted her military service, as an October 1990 surgical record notes a repair of her anterior cruciate ligament (ACL) in the left knee. A veteran is presumed sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.§ 1111; 38 C.F.R. § 3.304(b). If no preexisting condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Importantly, however, the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether the disease or injury preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). While the aforementioned October 1990 surgical record notes surgery on the Veteran’s left knee, her service treatment records (STRs), including her entrance examination, suggest a pre-service right knee surgery. While an April 1993 in-service evaluation also suggests this pre-service surgery was actually on the left, the evaluation at the time referenced the right knee. A VA examiner concluded in November 2020 that, based on review of the Veteran’s medical records, while the operative report in October 1990 indicates the surgery was completed on the left knee, this appeared to be an error, and the Veteran’s pre-service knee surgery was in fact on the right knee. Regardless, the most competent and credible evidence of record shows that her current left knee disability did not manifest during the relevant period of military service. The Veteran’s STRs are negative for an in-service treatment relating to her left knee, only her right knee for which service connection is already in effect. The record is absent indication of any left knee disability until the Veteran reported injuring her left knee playing basketball in July 1999. While an X-ray was negative, left knee chondromalacia was diagnosed in September 1999, with an arthroscopy subsequently performed. The operative report specifically notes the Veteran reporting an onset of left knee pain after playing basketball a month anda half prior. Diagnostic testing in 2007 again revealed severe chondromalacia of the left knee, and X-ray testing in 2012 showed mild osteoarthritis of the left knee. VA examinations afforded to the Veteran in July 1998, one month post-service, are negative for complaints regarding the knees. Therefore, the presumption of soundness does not attach here. See Gilbert, 26 Vet. App. 48, 52 (2012). Instead, the Board will adjudicate the appeal as one for direct service connection. Generally, to establish service connection, a claimant must show: (1) 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Again, the Veteran’s STRs are negative for left knee complaints. As the Veteran reported other ailments during service (including right knee concerns), and knee problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems with her left knee during service the Board would expect that she would have reported these problems to medical professionals. As a chronic left knee disability is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of the Veteran’s left knee disability cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s STRs, which are absent left knee complaints. It is the Veteran’s assertion, however, that her service-connected right knee disability caused or aggravated her current left knee disability on a secondary service connection basis. 38 C.F.R. § 3.310. The Veteran first presented for a VA examination in November 2018, where the examiner provided the positive opinion that the current left knee disability was at least as likely as not proximately due to the service-connected disability because “the severity of the service-connected condition warrants by proximity association of the claimed secondary condition and that the claimed disorder began subsequent to the service-connected condition as the direct result of the antecedent condition.” As the Board noted in its November 2020 remand, however, this opinion failed to provide a sufficient rationale in support of its conclusion. Additional opinions, however, are of record from February 2019 and November 2020, with both examiner’s opining that the left knee disability was less likely than not caused or aggravated by the service-connected right knee disability. Both examiners essentially explained that the Veteran’s left knee disability was initially the result of her post-service basketball injury, and could therefore not be caused by the right knee. The February 2019 examiner specifically noted that knee trauma and chondromalacia (the Veteran’s post-injury diagnosis) are both known causes of osteoarthritis (the Veteran’s current disability). As to whether the left knee osteoarthritis was at least as likely as not aggravated beyond its natural progression by the right knee disability, the February 2019 examiner stated that unless the surgery carried out on the right knee resulted in a significant limp over a long period of time, it was unlikely there would be an aggravation of the arthritis of the left knee, as medical documentation indicated at most a slightly antalgic gait, which was not severe enough to affect the progression of the left knee condition. Further, the November 2020 examiner, after noting that the current severity of the left knee osteoarthritis was greater than the baseline, noted that an MRI in 2007 showed severe chondromalacia of the left knee, and X-rays in 2012 showed mild osteoarthritis of the left knee. Chondromalacia and abnormal patellar tracking, the examiner continued, are known risk factors for patellofemoral osteoarthritis, and osteoarthritis can be progressive, with progressive articular cartilage damage and bony changes. Here, the examiner concluded, there is insufficient medical evidence in the available medical documentation to indicate that the right knee condition caused the left knee injury, the left knee osteoarthritis, or progression of the left knee osteoarthritis, and it is more likely that the left knee injury in 1999 and anatomic factors caused the progressive left knee osteoarthritis. The Board finds these opinions highly probative as they were made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinions. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. The Board has considered the Veteran’s statements, to include her assertions that her left knee disability is related to her right knee disability. As the Veteran is not shown to have medical education or experience, she is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., knee pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, her lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by a trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.E. Bresler, 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.