Citation Nr: 21022550 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-25 688 DATE: April 16, 2021 ORDER Entitlement to service connection for degenerative arthritis of the bilateral knees is denied. FINDING OF FACT The preponderance of the evidence demonstrates that it is less likely than not that the Veteran’s degenerative arthritis of the bilateral knees was incurred in service (to include as due to exposure to herbicide agents), manifested to a compensable degree within one year following separation from service, or is otherwise etiologically related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative arthritis of the bilateral knees have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1968 to November 1971, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was most recently before the Board in July 2020, at which time the Board remanded the issue to the agency of original jurisdiction (AOJ) in order to procure an addendum medical opinion addressing the Veteran’s lay statements concerning a continuity of symptomatology. The matter has now been returned to the Board for further appellate consideration. After a review of the record, the Board finds that there has been substantial compliance with the terms of its prior remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board notes that it has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss every piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, regarding the Veteran’s claim. Entitlement to service connection for degenerative arthritis of the bilateral knees Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active duty service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for chronic diseases, including arthritis, listed under 38 C.F.R. § 3.309(a) may be established on a presumptive basis if the chronic disease was shown as chronic in service, manifested to a compensable degree within a presumptive period of one year after separation from service, or was noted in service with a continuity of symptomatology since service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Veteran seeks service connection for degenerative arthritis of his right and left knees, contending that the disability was incurred in service, including as due to exposure to herbicide agents, or that the disability is otherwise related to his military service. See, e.g., VA Form 9, Appeal to Board of Veterans’ Appeals, dated May 24, 2016. The Veteran’s representative has asserted that the Veteran’s lay statements regarding in-service knee pain should suffice to establish a continuity of symptomatology and, further, that the Veteran’s service treatment records (STRs) do not indicate any possible symptoms of the disability because medical knowledge and techniques during the era in which the Veteran served were not sophisticated enough to detect and treat various forms of arthritis. See VA Form 9, dated May 24, 2016. The Veteran’s representative also contends, in essence, that exposure to herbicide agents is scientifically proven to compromise the immune system, which can in turn lead to the development of auto-inflammatory diseases. The record further reflects that the Veteran and/or his representative has provided VA with scientific and medical literature, including, in relevant part, from the National Academy of Sciences (NAS) (suggesting a link between exposure to hazardous chemicals such as those found in herbicide agents and the onset of auto-inflammatory diseases; see document labelled “Third Party Correspondence,” dated March 25, 2015); an NAS Veteran and Agent Orange Update (discussing the extent to which hazardous chemical agents can affect one’s immune system, as well as the function and importance of the immune system; see article contained in document labelled “Third Party Correspondence,” dated July 6, 2016); and an article concerning the rise of instances of military recruits who have reported patellofemoral pain syndrome (discussing the prevalence of servicemen who have experience the disorder; see article contained in document labelled “Correspondence, dated November 4, 2020). As an initial matter, the Board notes that the Veteran has a current diagnosis of degenerative arthritis of the bilateral knees, confirmed by x-ray imaging. See, e.g., VA examination dated August 14, 2019. Additionally, VA has previously conceded exposure to herbicide agents based on the Veteran’s service in Vietnam. Turning to the relevant medical evidence of record, a review of the Veteran’s STRs reveals that neither the Veteran’s enlistment examination nor his separation examination contain references to knee symptoms, either as reported by the Veteran or as documented by a clinician upon physical evaluation of the Veteran. Furthermore, the Veteran’s STRs do not contain any indications that the Veteran complained of, or sought treatment for, symptoms or an injury of the knees. Medical treatment records demonstrate, in pertinent part, that the Veteran sought treatment for knee pain in January 2011. See medical treatment records dated January 22, 2011. At that time, he relayed to a clinician that he had experienced the pain for approximately 20 years. Notably, however, the date on which this statement was made occurred nearly 40 years after the Veteran’s military separation. To assist the Veteran with the development of the Veteran’s claim, VA afforded him a physical examination in August 2019. Radiological imaging of the Veteran’s knees was conducted, indicating mild bilateral patellofemoral osteoarthritis with joint space narrowing and small marginal osteophytes. See VA examination report dated August 9, 2019. The examining physician diagnosed the Veteran with degenerative arthritis of both the right knee and the left knee, noting that the date of diagnosis was 1969, apparently based on the Veteran’s statements that he first began to experience insidious bilateral knee pain beginning in Vietnam at that time. See VA examination dated August 14, 2019. However, the date of diagnosis appears to be incorrect, as the preponderance of the evidence suggests that the Veteran’s symptoms began in the years following his service. For instance, per the Veteran’s own account of his symptoms, he did not begin to experience pain in his knees until approximately twenty years after service. See, e.g., medical treatment records dated January 22, 2011. Concerning a nexus between the Veteran’s disability and his military service, including exposure to herbicide agents, the examiner furnished a negative opinion, reasoning that the evidence of record fails to prove an objective connection between the two, and furthermore, that the Veteran was not diagnosed with the disability within a year of separation from service. The examiner observed that the findings of the most recent radiographs of the Veteran’s knees are more consistent with age-related degenerative changes. Responding to the merits of the NAS article suggesting a link between exposure to herbicide agents and the onset of autoimmune diseases, the physician acknowledged the apparent association but conveyed that there is no evidence to indicate that the Veteran’s degenerative arthritis was caused by or is otherwise affected by an autoimmune disorder. The July 2020 Board remand found the above rationale inadequate, insofar as the physician did not address the Veteran’s statement concerning the continuity of symptomatology he has experienced since service. See Board decision dated July 8, 2020. The Board requested that the AOJ obtain an addendum medical opinion addressing the Veteran’s statement. In October 2020, another VA clinician reviewed the Veteran’s claims file and provided a negative opinion for whether the Veteran’s degenerative arthritis of the bilateral knees was incurred in or is otherwise etiologically related to his military service, to include exposure to herbicide agents, or whether the disability manifested to a compensable degree within one year of the Veteran’s military discharge. See medical opinion dated October 12, 2020. In so finding, the clinician reasoned that many servicemen experience knee pain due to the physical demands of service but that such pain is typically caused by a strain or sprain of a muscle, whereas degenerative arthritis occurs in the knee joints and is caused by mechanical “wear and tear” over a period of many years. The AOJ procured an addendum medical opinion in November 2020. At that time, an examiner reviewed the Veteran’s claims file, including the scientific and medical literature submitted, and furnished a negative nexus opinion. See addendum medical opinion dated November 19, 2020. The examiner remarked that the information he reviewed did not suggest that the Veteran incurred a chronic knee condition during service or that the Veteran’s roughly two-and-a-half years of military service led to the subsequent development of arthritis, referring to the contention as “speculative.” The examiner opined that the disability was most likely sustained in the fifty years following military service, which included a string of physically rigorous job duties in the civilian workforce. In light of the foregoing, the Board finds that entitlement to service connection for degenerative arthritis of the bilateral knees is not warranted, as the preponderance of the evidence weighs against the claim. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise with respect to this claim. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits [...].”); see also Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.