Citation Nr: 21023220 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-24 870A DATE: April 20, 2021 ORDER Entitlement to service connection for a right knee disorder is denied. FINDING OF FACT The Veteran’s right knee disorder did not manifest during service or to a compensable degree within one year of discharge from active service, and is not otherwise attributable to service. CONCLUSION OF LAW The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from December 1961 to December 1964. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The Board notes that the Veteran’s claim for entitlement to service connection for a right rib disorder was granted in a February 2021 rating decision. Thus, this claim is no longer on appeal and the Board does not have jurisdiction at this time. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2019). This claim was recently remanded in September 2020 for additional development, including to afford the Veteran a new VA medical opinion, which was accomplished in January 2021. A review of the record shows substantial compliance with the Board’s prior remand; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a right knee disorder. The Veteran contends that his right knee disorder is due to his military service. His claim for compensation was received by VA in September 2010. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a “chronic condition” under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was “noted” during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran’s right knee osteoarthritis qualifies as a “chronic condition” under 38 C.F.R. § 3.309 (a). Accordingly, service connection may be granted on a presumptive basis for arthritis if it is shown to be manifest to a degree of 10 percent or more within one year following the Veteran’s separation from active military service. 38 C.F.R. §§ 3.307, 3.309 (a). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Board finds that the Veteran has a current right knee disorder. A May 2019 VA examination report noted diagnoses of right knee strain and right knee osteoarthritis. In addition, there is evidence of an in-service injury or event. The Veteran’s service treatment records (STRs) note a right knee injury in October 1964. Accordingly, the two Shedden criteria are met and are not in dispute. The remaining issue, therefore, is whether there is a causal connection between the right knee disorder and military service. The Board finds a preponderance of the evidence to be against the Veteran. As such, the claim for service connection must be denied. The Veteran testified before the undersigned in August 2017 that he injured his knee as a result of parachute jumps. He had over 60 jumps. He recalled one particularly hard landing in November 1964 when he hit the ground backwards due to high winds. He reported he hit the ground so hard he passed out. He reported he was treated by having fluid and ruptured material withdrawn from his knee. He was on crutches for two weeks after the injury. He did not file a claim for compensation earlier as he did not think he was entitled to. After discharge, his work involved ladders but he did not carry heavy loads. He testified that his knee hurt at discharge and continued to hurt thereafter. A review of the Veteran’s STRs reveal the Veteran experiencing a right knee injury in October 1964. The Veteran reported injuring his right knee when landing from a parachute jump. He also reported pain with walking. Examination noted lateral knee swelling, but full range of motion (ROM) of the knee joint. X-rays revealed no evidence of a knee fracture. Follow up examination in November 1964 found no knee instability and full ROM. There were no subsequent complaints or treatment for any right knee issues in the service treatment records. Clinical examination of the Veteran was normal at the time of entry and separation from military service. A review of the Veteran’s post-service VA and private treatment records demonstrates that the first complaints of right knee pain was in May 2010, many years after his discharge. The Veteran’s private clinician noted that the Veteran had a documented injury during active duty as a paratrooper and he currently had arthritis and chronic pain in the right knee. An August 2017 X-ray study was interpreted as revealing a tiny joint effusion of the right knee, but no evidence of a fracture or degenerative change. A September 2017 MRI imaging study was interpreted as revealing a small superior surface tear of the medial meniscus and a horizontal tearing of the lateral meniscus of the right knee. The Veteran underwent a VA examination in March 2011. The examiner noted the in-service right knee treatment related to a parachute jump. The examiner also noted that the Veteran did not seek medical attention after discharge but he did report knee pain after discharge which he described as being sore. The examiner also noted the Veteran’s post-service occupations of installing telephone equipment and as an electrician. The examiner diagnosed the Veteran with a right knee strain. The examiner then gave a negative opinion that the right knee strain was related to his military service. The examiner found that, while the Veteran did injure his knee in-service, there was no evidence of chronicity following separation and the Veteran never sought medical attention until one year prior to the date of the VA examination. In addition, the examiner found that the Veteran worked very physical jobs for 35 years after separation and that the Veteran’s current knee disorder is likely a result of that work. An addendum VA medical opinion was issued in May 2019. The examiner noted that the Veteran did not report for the examination. The examiner then gave a negative opinion that the Veteran’s right knee disorder resulted from his military service. The examiner noted the Veteran was seen and treated for an isolated right knee injury in-service, with improvements shown with regular follow ups. The examiner found no evidence of chronicity during the Veteran’s remaining active duty period and several years after discharge. The examiner also found no objective evidence of a right knee disorder’s onset during service or shortly after discharge. The examiner noted the Veteran’s complaints of right knee pain approximately 45 years after discharge. The examiner then reviewed the May 2010 private nexus opinion and found that it was rendered without a review of the Veteran’s STRs and was based on speculation and presumption. The Veteran underwent a second VA examination in May 2019. The examiner noted the Veteran’s history of his in-service right knee injury. He also stated that he was first seen for his right knee problems in 2010, remarking “as we get older, [I] notice pain in [my] right knee...” The examiner also noted the Veteran’s post-service employment history as a telephone installer, a car waxer, and an electrician. Clinical examination revealed decreased ROM with pain noted on examination, but did not result in functional loss. Normal muscle strength and joint stability was found. The examiner also noted the Veteran’s occasional use of a cane for ambulation. Imaging studies revealed degenerative arthritis of the right knee. The examiner found that the previous VA addendum opinion also from May 2019 (given by the same examiner) did not change as a result of the Veteran’s in-person examination. A second addendum VA opinion was issued in January 2020. The examiner gave a negative opinion that the right knee disorder was the result of military service. The examiner noted that the STRs revealed that the Veteran incurred a right knee injury in October 1964. However, follow up examination in November 1964 revealed no knee instability and likely resolved as subsequent records were silent for any knee issues. The examiner noted that the separation examination was negative for knee issues and that there was a 46 year gap from separation to the first complaints of knee pain. The examiner then noted that the most common cause of early onset of osteoarthritis is due to a direct bone fracture or trauma which the Veteran did not have. In addition, the examiner stated that a sprain does not tend to last for 46 years as this sprain condition heals within three months’ time. The examiner further noted that the Veteran was found working post service installing telephone equipment and as an electrician which is mostly on his knees and feet and can likely contributed to the right knee strain. The examiner finally stated that several factors are linked to the Veteran’s right knee condition and strain such as post military occupation, body habitus of 40 (can put load on the knees and causes sprain) and the Veteran’s age, played a significant association to the right knee condition and less likely from a single medical complaint found in service. A third addendum VA opinion was issued in January 2021. The examiner gave a negative opinion that the right knee disorder was the result of military service. The examiner stated that there was no evidence of a chronic knee condition in service. The separation exam was noted to be negative for knee conditions which included the Veteran’s history and physical exam. The examiner also noted that the separation questionnaire was specifically marked negative for knee conditions and it is unlikely that a knee condition would have been missed or unreported. The examiner further stated that despite the Veteran's reports of onset in service with chronic symptoms since service, the medical evidence does not support these claims. The examiner noted that there was no evidence of care post-service, until August 2017. The examiner noted that the Veteran did report a right knee injury in the 1960s; however, there was no evidence, as discussed above. The examiner noted that X-ray interpretation revealed showed very minimal degenerative changes. Furthermore, the examiner noted that degenerative joint disease (DJD) is considered a natural aging process due to normal wear and tear over time and was highly unlikely to have been present within one year of service, based on the Veteran's age and pathophysiology of the condition. Additionally, the examiner noted that a September 2017 MRI report revealed medial and lateral meniscus injuries and chondromalacia, making it more likely than not to have been a recent onset. Finally, the examiner noted that it was highly unlikely that the Veteran could have gone a span of 50 years without requiring care if the conditions arose in service. The Board finds the VA opinions persuasive. The examiners noted the Veteran’s self-reported medical history, indicated a review of the claims file, and based this opinion on the Veteran’s interview, the claims file review, and the VA examination results. Further, the opinion is based on the evidence summarized earlier, which indicates no right knee problems for approximately 45 years following service. The most recent opinion takes into account the Veteran's reports of continuity of symptomology and addresses why these are found not to be persuasive. The Board finds the rationale adequate and give more probative weight to the VA examiner who assessed the Veteran's testimony but cited to instances in the record which contradict the testimony and also cited to medical principles which also weigh against continuity. The STRs demonstrates that the Veteran’s right knee injury resolved, with no evidence of subsequent complaints of, diagnosis of, or treatment for right knee complaints. The first complaints of right knee issues post-service were in May 2010. There is a long period of time between discharge and the first evidence of right knee complaints. The prolonged period without treatment factors against the Veteran’s claim. The Board finds the lack of contemporaneous evidence of chronic right knee problems and the VA examiner’s analysis of why there is no continuity outweighs the probative value of the Veteran’s testimony and allegations. As such, the Board finds the VA opinions of probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999)(the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Further, the VA opinions are the only adequate medical opinions of record that addresses the issue of medical nexus. The Veteran submitted a May 2010 medical nexus opinion from Dr. K., who, to a certain extent, opined that the Veteran’s right knee disorder is related to his military service. However, this opinion is inadequate for adjudicative purposes since there is a lack of rationale for this opinion. As such, it is entitled to no probative value. In light of the probative negative nexus opinions and lack of a probative positive opinion to contradict the negative evidence, there is simply no basis for a grant of service connection for the Veteran’s right knee disorder. In assessing the claim, the Board has considered the Veteran’s lay statements that he currently experiences right knee issues as a result of his military service. The Veteran testified at his Board hearing that he injured his right knee during a parachute jump, and has experienced knee pain from service to the present day. While he is competent to report observable symptoms, he is not competent to link his current right knee issues to his active duty service. As a layperson, the Veteran is not competent to make a complex medical determination as to the etiology of his right knee disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). This requires specialized training and testing. As such, he cannot render an etiology opinion regarding his right knee disorder. As the preponderance of the evidence is against the claim of entitlement to service connection for a right knee disorder, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.