Citation Nr: 21022502 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-42 874 DATE: April 16, 2021 ORDER Entitlement to service connection for a right knee disorder is denied. REMANDED Entitlement to service connection for a right shoulder disorder is remanded. FINDING OF FACT A right knee disorder of service origin has not been demonstrated. CONCLUSION OF LAW The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2008 to September 2014. The Veteran appeared at a videoconference hearing in February 2019. A transcript of the hearing is of record. The Board remanded this matter for further development in June 2019. This matter was again remanded for further development in December 2020. Right Knee Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Other specifically enumerated disorders, such as arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service treatment records do not reveal any complaints or findings of a right knee disorder. At the time of a May 2014 predischarge/VA examination, normal findings were reported of the right knee with full muscle strength and no instability. There was no diagnosis rendered at that time. In a May 2015 letter, the Veteran’s private physician, K. W., M.D., indicated that right knee symptoms and exam were consistent with patellofemoral syndrome. Dr W. stated that he had given the Veteran an exercise handout. He also noted that they had discussed activities that he should avoid (kneeling and squatting). The Veteran was afforded a VA examination in August 2020. Following examination of the Veteran and review of the claims folder, the examiner opined that the claimed condition was less likely than not incurred or caused by a claimed inservice injury, event, or illness. As rationale, the examiner indicated that no chronic diagnosis was made for right knee disability. She stated that objective examination was normal with only subjective symptoms. A nexus had not been established. She noted that a letter submitted from the Veteran’s private physician stated "symptoms are consistent with patellofemoral pain syndrome." He was given an exercise handout. It was discussed that he should avoid kneeling and squatting. She stated that although the letter from his clinician stated he had patellofemoral pain syndrome in 2015, his current examination was not consistent with a chronic diagnosis. He did not have pain. He reported intermittent popping sensation in his right knee. Right knee x-rays were normal. There was no current treatment for a knee condition. Furthermore, the letter from the clinician did not include examination and treatment records. The letter did not relate his condition to military service. The service treatment records did not show a right knee condition. A nexus was not established. In its December 2020 remand, the Board noted that the examiner did not address the Court’s holding in Saunders that the Veteran could be considered to have a disability where there was also functional impairment. The Board observed that although the examiner indicated that the Veteran denied having pain, he did report having popping and cracking sensations in his knee. It further observed that the Veteran also testified as to taking Ibuprofen for his knee problem and using an ace wrap. The Board indicated that given the foregoing, the claims folder should be returned to the August 2020 VA examiner and she should be requested to address the Court’s holding in Saunders as it related to the Veteran’s use of Ibuprofen and knee wraps. The examiner was to also address what functional impairment, if any, resulted from the Veteran’s knee popping and cracking. In a February 2021 addendum report, the examiner opined that the claimed condition 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 stated that no chronic diagnosis was made for right knee disorder. Objective examination was normal. Symptoms were subjective only. Service treatment records were silent for any complaints, treatment, or diagnosis of right knee disorder/condition. The May 2015 from Dr K. W. was noted wherein it was indicated that the right knee knee-symptoms and exam were consistent with patellofemoral syndrome and that he had given the Veteran exercises and a handout, should avoid kneeling and squatting. The examiner observed that this letter was from 2015 and did not state the clinical course of the knee pain such as onset. The examiner observed that subsequent VA examination in August 2020 stated normal right knee as did the 2014 VA examination, with no pain on examination. The examiner indicated that this did not support a current chronic diagnosis of patellofemoral pain syndrome that was related to his time in the service. A nexus had not been established. As to the question of whether the current right knee condition manifested with the first year of service, the examiner noted the May 2015 letter from Dr. W. She observed that this was within one year of his separation from service but there was no current chronic diagnosis since that letter in 2015 to support that he had a chronic diagnosis of patellofemoral syndrome. She noted that the 2020 VA examination stated right knee was normal with Veteran's subjective complaints of pain and no medical records since 2015 to support that he was self-treating or being treated for his right knee pain. This was a 5 year time span of no treatment for complaints of right knee pain with a normal examination in 2020. As to continuity of the same symptomatology since service, the examiner observed that the service treatment records were silent for any complaints, treatment or diagnosis of right knee pain/condition. The only mention of right knee pain was in letter from PCP in 2015. There were no further complaints of right knee pain in the post discharge medical records. As to the Court’s holding in Saunders that a disability may exist even in the absence of a specific diagnosis, and that pain can constitute disability if it causes impairment in earning capacity and as it relates to the Veteran's use of Ibuprofen and knee wraps, the examiner indicated that the September 2020 examination of the Veteran stated there was no impact on the Veteran's ability to perform any type of occupational task. As to the question of what functional impairment, if any, resulted from the Veteran's knee popping and cracking, the examiner indicated that the VA examination of the knee in September 2020 stated there was no impact on the Veteran's ability to perform any type of occupational task. Popping and cracking were sounds that did not interfere with range of motion/muscle strength according to the September 2020 VA examiner when examining the knee. The Veteran had full range of motion of the right knee. Congress, as a general rule, limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C. § 1110, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C. § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, the general rule is that in the absence of proof of present disability there can be no valid claim. Based on the above, to the extent that the medical evidence addresses whether the Veteran has a right knee disorder, it indicates that he does not. The Veteran is competent to report his current symptoms, but his reports must be weighed against the medical evidence of record. See Grover v. West, 12 Vet. App. 109, 112 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran has indicated that he currently has a right knee disorder, the medical evidence showing an absence of such a disability is of greater probative weight than the Veteran's reports made during the course of his claim for VA benefits. The weight of the evidence is against a finding that the Veteran currently has a right knee disorder. A necessary element for establishing service connection-evidence of a current disability-has not been shown. The Board does note that the Veteran was reported to have symptoms consistent with patellofemoral syndrome in 2015; however, there are no treatment records available to support those findings. Moreover. the Veteran has not been found to have right knee problems on several VA examinations, including in September 2020. Moreover, the VA examiner addressed the 2015 findings when rendering her opinion that the Veteran did not have a right knee disorder. The examiner also addressed the Court’s findings in Saunders indicating that the Veteran’s right knee had no functional limitations. For the foregoing reasons, the claim for service connection for a right knee disorder must be denied. In reaching this 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. REASONS FOR REMAND In its December 2020 remand, the Board noted that while the Veteran was afforded the requested examination in August 2020 and the required opinion was obtained, the examiner did not address the Veteran’s denial of any post-surgery residuals upon entrance in to service and his June 2008 entrance examination, at which time the Veteran was able to do pushups and the examiner found the Veteran’s right shoulder disability not disqualifying for service. The Board further observed that the examiner also did not address in-service adult prevention and chronic care flowsheet notes, which reported chronic right shoulder pain along with the Veteran’s claimed compensation for right shoulder instability prior to separation from service, all of which were noted in the Board remand. The Board indicated that it erred as a matter of law when it failed to ensure compliance with the instructions of its prior remand. While the examiner provided a February 2021 addendum report, the examiner again did not address and discuss service treatment records in which the Veteran denied any post-surgery residuals upon entrance into service and his June 2008 entrance examination, at which time the Veteran was able to do pushups with the examiner finding the Veteran’s right shoulder disability not disqualifying for service. The examiner also did not address in-service adult prevention and chronic care flowsheet notes which noted chronic right shoulder pain or the Veteran’s claimed compensation for right shoulder instability prior to separation from service as was required in the prior remands. The Board errs as a matter of law when it fails to ensure compliance with the instructions of its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). The matter must be remanded for compliance with the directives of the prior Board remands. The matter is REMANDED for the following action: Return the file to the examiner who provided the February 2021 addendum opinion with regard to the right shoulder disorder. When discussing the below requested opinions, the examiner must discuss and address service treatment records in which the Veteran denied any post-surgery residuals upon entrance into service and his June2008 entrance examination, at which time the Veteran was able to do pushups with the examiner finding the Veteran’s right shoulder disability not disqualifying for service. The examiner must also discuss and address in-service adult prevention and chronic care flowsheet notes which noted chronic right shoulder pain along with the Veteran’s claimed compensation for right shoulder instability prior to separation from service. The examiner must opine whether the Veteran’s right shoulder disability clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that the Veteran’s right shoulder disability was aggravated (non-temporary increase in severity) by service, the examiner must opine whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. If the examiner finds that the Veteran’s right shoulder disability was not incurred in or otherwise related to service, the examiner must opine whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability, including a left shoulder disability. Complete detailed rationale is required for each opinion that is rendered. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.