Citation Nr: 21022690 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 20-00 009A DATE: April 19, 2021 ORDER Entitlement to service connection for right knee disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s right knee disability began during active service, manifested to a compensable degree within a first post-service year, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for right knee disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 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 from July 1968 to June 1972 and from June 1973 to July 1976. This appeal to the Board of Veterans Appeals (Board) arose from a January 2019 rating decision. The issue was previously before the Board in April 2020 when it was remanded for further development. Specifically, the Board instructed the agency of original jurisdiction (AOJ) to obtain all outstanding treatment records and afford the Veteran a VA examination to determine the nature of his claimed right knee disability and to obtain a medical opinion as to whether any such disability is related to service. Pursuant to the Board’s remand, all identified outstanding VA and private treatment records were obtained and associated with the claims file, a VA knee examination was conducted in September 2020, and a medical opinion was obtained in September 2020 as to whether the Veteran’s claimed right knee disability was related to service. As explained in more detail below, the Board finds the September 2020 opinion to be adequate and of substantial probative value. Therefore, the AOJ substantially complied with the Board’s remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for right knee disability The Veteran contends that he suffers from a right knee disability as a result of his service. He claims that he suffered from pain and swelling in his right knee while in service, stating that his knee was drained of fluids at the time. See November 2020 VA Form-9. Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, a claimant must show: (1) current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a) (e.g., arthritis). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such 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 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Although entitlement to service connection on any of the presumptive bases noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). The Veteran has suggested that he has experienced continuous right knee symptoms in the years since service. For instance, he reported on a November 2020 VA Form 9 that he experienced right knee swelling and pain in service and that his knee had not “been the same since.” The Veteran is competent to report the history of his claimed right knee disability (including a continuity of symptomatology in the years since service). However, his reports must be weighed against the other evidence of record and their credibility must be assessed. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran’s service treatment records show that he was treated for a right knee lump that was asymptomatic in June 1971. In May 1972, he was treated for right knee pain and was diagnosed as having a strain. There is no evidence of any other complaints of or treatment for right knee problems in the Veteran’s service treatment records and there were no right knee abnormalities noted during his June 1972 or June 1976 separation examinations. The Veteran’s post-service treatment records include VA treatment records from January 2012 showing that he complained of intermittent right knee pain. In June 2012, he was diagnosed with a meniscal tear in the right knee. In September 2018, he was noted to have a diagnosis for unspecified arthritis. Moreover, the Veteran has provided information and statements which are inconsistent with his reports of a continuity of right knee symptomatology in the years since service. As explained above, he has reported that right knee symptoms had their onset in service and that his knee has never been the same in the years since service. However, he reported on a June 1973 report of medical history form completed for purposes of entrance into service and a June 1976 report of medical history form completed for purposes of separation from service that he was neither experiencing, nor had he ever experienced, any “swollen or painful joints,” “arthritis, rheumatism, or bursitis,” or “trick or locked knee.” The Veteran was provided with an examination in September 2020 where he reported that he had a swollen knee in service and “the doctor ‘stuck a needle’ in his knee.” He reported having knee pain “for ‘a long time’ after his discharge.” The Veteran was diagnosed with a right knee meniscal tear and degenerative arthritis. The examiner opined that the Veteran’s right knee disability was less likely than not due to his service because his knee condition in service was acute only. Aside from the two knee complaints in service, the examiner noted that the Veteran’s service treatment records “are silent for a right knee condition until 2004,” which was “32 years after his discharge from service.” The examiner noted that although the Veteran reported that “his right knee was aspirated while in service, there is only documentation of the evaluation of R knee pain and no treatments were ordered at the time.” The examiner added that the Veteran’s medical records include documentation showing that he worked for a moving company after service which “likely contributed to his current diagnosis.” The examiner concluded that since his time in service, “he has been treated intermittently with braces and steroid injections,” but found that “there is not enough documentation in the medical records to support the claim that the injury occurred while on active duty and there is no chronicity of care.” The question for the Board is whether the Veteran has current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of right knee meniscal tear and degenerative arthritis, and evidence shows that an in-service injury occurred, the preponderance of the evidence weighs against finding that the Veteran’s current right knee disability began during service, manifested to a compensable degree within a first post-service year, or is otherwise related to an in-service injury, event, or disease. In light of the fact that the Veteran’s June 1972 and June 1976 separation examinations did not reflect any knee abnormalities, the absence of any clinical evidence of knee problems for many years following his separation from service in July 1976, and the information and statements provided by the Veteran that are inconsistent with his reports of a continuity of knee symptomatology in the years since service, the Board concludes that his reports concerning the history of his claimed right knee disability (including any reports of a continuity of symptomatology in the years since service) are not credible. The Board finds that the September 2020 opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran’s contention that he has not worked for a moving company but is in fact the owner of such company. Accordingly, he claims that he has not had to pick up anything heavier than a “pen to sign payroll check.” See a November 2020 correspondence. Although the September 2020 examiner opined that the Veteran’s disability could have been a result of the Veteran’s work at a moving company, the Board finds that this does not make the opinion less probative. The examiner still provided a negative nexus opinion based on a thorough review of the evidence of record, supported by an adequate rationale. Whether the Veteran worked for a moving company after service would not change the outcome of the September 2020 negative nexus opinion. The Veteran being the owner of a moving company rather than an employee does not provide any evidence supporting the Veteran’s claim that his disability is the result of his service. Additionally, the Board notes that arthritis was not noted while on active duty and the record does not indicate that the Veteran had arthritis of the right knee within one year of his separation from service. The record also does not indicate that arthritis of the right knee manifested to a compensable degree within one year from separation from service. Accordingly, service connection may not be granted on a presumptive basis. 38 C.F.R. § 3.309(a). Further, the Board notes that aside from the Veteran’s own statements, the evidence of record does not contain any evidence suggesting a link between his right knee disability and his complaints in service. Moreover, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, the dispositive question presented in this case (i.e., whether any relationship exists between the Veteran’s claimed right knee disability and service) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d at 1377 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). An opinion as to whether there is a link between the Veteran’s right knee disability and service (where there is no credible evidence of any right knee problems for many years after service) is one requiring specialized knowledge and testing to understand the complex nature of the body systems. The Veteran has not indicated that he has such experience. His opinion on the question of nexus is therefore not competent evidence in this instance. (CONTINUED ON NEXT PAGE) There is no other evidence of a relationship between the Veteran’s right knee disability and service, and neither he nor his representative have alluded to the existence of any such evidence. Thus, the preponderance of the evidence is against a finding that the Veteran’s right knee disability had its onset in service or within a first post-service year, or that it is otherwise related to service. Accordingly, the Board finds that service connection for right knee disability has not been established and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5170; 38 C.F.R. §§ 4.3, 4.7. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.