Citation Nr: 21023325 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-51 835 DATE: April 20, 2021 ISSUE Entitlement to service connection for left knee disability. ORDER Entitlement to service connection for left knee disability is denied. FINDINGS OF FACT A left knee disability was not shown during service or for many years thereafter and the weight of the evidence is against a finding that the Veteran's current left knee disability is otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Army from November 1988 to November 1996. This matter comes before the Board of Veterans' Appeals from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas. In January 2019, the Veteran testified before the undersigned Veterans Law Judge in a Travel Board Hearing. A transcript of that hearing is of record. This matter was previously before the Board in May 2019 and November 2020. In the May 2019 decision, the Board, in pertinent part, remanded the Veteran’s claims of entitlement to service connection for a headache and left knee disability for VA examinations. In the November 2020 decision, the Board, in pertinent part, remanded the Veteran’s service connection claim for a left knee disability for the purpose of obtaining an addendum medical opinion. The Board is satisfied that there has been substantial compliance with the Board's remand directives. The matter has been properly returned for to the Board for appellate consideration and the Board is satisfied that there has been substantial compliance with the Board remand. Thus, no further action is required. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for left knee disability. The Veteran asserts that he is entitled to service connection for a left knee disability because of a left knee injury he sustained during a motor vehicle accident involving two 2 ½ ton trucks during active duty service. See January 2019Board Hearing transcript, pgs. 8-11. Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, where a Veteran served for at least 90 days during a period of war or after December 31, 1964, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year, respectively, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease under 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptomology to establish service connection is limited only to those diseases listed under 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Board notes that it has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. As such, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis below will focus on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Discussion The central issue in this case is whether there is a “nexus” between the Veteran’s current left knee disability and his active duty service. See Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). There is no dispute that the Veteran has a current disability. The Veteran has been diagnosed with a bilateral knee strain. See January 2020 Knee and Lower Leg Conditions’ examination, pg. 2; See also, August 21, 2014, Non-degenerative Arthritis and Dysbaric Osteonecrosis examination (no diagnosis of inflammatory, autoimmune, crystalline or infectious arthritis), pgs. 1-2. Hence, the Board finds that the first element of service connection is met in this case. See Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). With regards to an inservice incident, the Veteran’s service treatment records are silent regarding any complaint, treatment or diagnosis for a left knee disability. As referenced in the introduction of this decision, the Veteran asserts that his left knee disability is related to a motor vehicle accident involving two 2 ½ ton trucks during active duty service. The Veteran has testified that after this in-service injury, he was out for about two weeks and that his knee was swollen. The Veteran testified that he was prescribed Motrin for his pain. The Veteran testified that he was on crutches and excused from duty for these two weeks. The Veteran testified that he has had a problem with his left knee ever since his discharge from service. See January 2019 Board Hearing transcript, pgs. 8-11. Military personnel records show that in 1990, while deployed in Saudi Arabia for Operation Desert Shield, the Veteran and nine fellow soldiers were injured in a motor vehicle accident involving two 2 ½ ton trucks. See Military Personnel Record, Document type, (Military Personnel Record), Receipt date, January 23, 2015. Based on the above, the Board finds that the second element of service connection has been met. See Shedden, 381 F.3d at 1167. With regards to the “nexus” element, the Board finds that the preponderance of the evidence is against a finding that the Veteran's current left knee disability is related to service. September 2007 post service treatment records show the Veteran has a history of knee pain. These treatment records show that the Veteran indicated that he had some tendinitis in both knees for two to three months, but they are not currently bothering him. In a September 2007 Joint examination, the Veteran described his knee problem as something that has come and gone over the past few years but was not currently present. In this Joint examination, the Veteran’s bilateral knee diagnosis was pain in the knees with no specific etiology other than wear and tear or overuse. See September 18, 2007 (Joint Examination, D.N.T., MD/MPH, signed September 28, 2007). April and May 2014 post service treatment records show a history of chronic bilateral knee pain, spasms and decreased range of motion. See April 22, 2014 treatment records; April 22, 2014 treatment records, LMJ Imaging Services; See also, May 21, 2014 treatment records re: Lidocaine injection on bilateral knees. An August 2014 Non-degenerative arthritis VA examination does report, by history that the Veteran had a left knee fracture which did not heal properly. The Board observes that the Veteran reported knee pain since 1999. See August 2014 Non-degenerative arthritis VA examination, pg. 2. November 2019 post service treatment records show a history of chronic left knee pain and decreased range of motion exacerbated with weight bearing. Diagnostic testing revealed osseous structures; Calcification at the tendinous insertion of the quadriceps femoris and infrapatellar tendons to the patella compatible with chronic calcific tendinosis, mild. There is mild irregularity at the tibial tuberosity. There is a small non-displaced calcification along the proximal end of the fibula likely biceps femoris tendon in origin. There is no acute fracture or dislocation. No focal lytic or blastic lesions are appreciated. See November 11, 2019 treatment records, LMJ Imaging Services, Open MRI. VA Medical Opinion The Veteran has been afforded a January 2020 VA Knee and Lower leg examination and medical opinion. In its November 2020 decision, the Board found that the January 2020 VA Knee and Lower leg examination and medical opinion inadequate for adjudication purposes because the examiner did not address the Veteran’s lay assertion of an in-service injury and continued knee pain following his Motor Vehicle Accident in 1990. Pursuant to the Board’s November 2020 remand directives, the Veteran was afforded an addendum medical opinion in January 2021. See January 28, 2021, Addendum Medical Opinion. (The Board observes that the Veteran was also afforded a December 2020 Addendum Medical Opinion; however, the RO acknowledged that the examiner did not specifically address the Board’s November 2020 remand directives. Therefore, an additional addendum medical opinion was obtained in January 2021.) Turning to the January 2021 addendum medical opinion: This VA examiner noted review of the Veteran’s claims file. The VA examiner acknowledged that the Veteran’s Motor Vehicle Accident is documented and that the Veteran endorsed that he had swollen knees after this motor vehicle accident, complained about his left knee after this accident, for which he was given Motrin during service, and continuous left knee problems since the in-service injury. Notwithstanding, the VA examiner reasoned that that “though the Veteran’s bilateral knee injury occurred during the Motor Vehicle Accident, it was acute, there is no medical evidence to support a chronic bilateral knee condition. Therefore, it is less likely than not that the Veteran's bilateral knee strain is due to or incurred in events in service, including the MVA. There was an 11-year gap from service until evidence of knee complaints. Furthermore, the Veteran claimed to have hit his knee on the dashboard which would not have caused a strain condition, but blunt force trauma or contusion. None is noted. Should the Veteran subsequently be diagnosed with Degenerative Joint Disease, it would not be due to events in service, and more likely than not due to age.” See January 28, 2021, Addendum Medical Opinion. (See also September 18, 2007 General Medical Examination, pg. 5 regarding MVA: The Veteran had to stop suddenly, and his left knee hit the dashboard.) Analysis In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board finds this January 2021 Addendum Medical Opinion highly probative on the etiology of this Veteran’s left knee disability because the opinion considered the facts surrounding the Veteran’s motor vehicle accident and injury during service, as well as his assertion of a continued symptoms of bilateral knee pain since this motor vehicle accident. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295. Based on a review of the Veteran’s claims file, the January 2021 VA examiner concluded that the Veteran’s in-service injury was acute. The examiner explained that the Veteran claimed to have hit his knee on the dashboard during the accident “which would not have caused a strain condition, but blunt force trauma or contusion. None is noted.” See January 28, 2021 Addendum Medical Opinion. Refuting the Veteran’s claim of a continuity of symptoms since his injury, and after service, the examiner explained that (a) there is no medical evidence to support a chronic bilateral knee condition and (b) there was an 11-year gap from service until evidence of knee complaints. Id. The Board notes that there is no contrary medical opinion of record regarding the etiology of this Veteran’s left knee disability. The Board has taken into account the lay assertions that the Veteran has presented in this claim, with particular consideration of the Veteran’s January 2019 Board Hearing testimony. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of a left knee disability falls outside the realm of common knowledge of a lay person. In this regard, while the evidence shows that he was involved in a Motor Vehicle Accident during service, and the Veteran can competently report the onset and symptoms of his left knee disability, a medical link between a current left knee disability and his 1990 in-service Motor Vehicle Accident requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). For these reasons, the Board finds the Veteran’s assertions (i.e., Board Hearing testimony) as to the etiology of his current left knee disability and its “nexus” to service to be unpersuasive and of minimal probative value. It finds the January 2021 VA addendum medical opinion to outweigh them. The January 2021 VA examiner determined, after review of the Veteran’s claims file, with full consideration of the Veteran’s description of pain during service and after service, that the Veteran’s in-service injury was acute, and hence resolved before his separation from service. Additionally, the Board notes that the lack of contemporaneous medical evidence regarding the Veteran’s left knee disability since his separation from service is a factor that weighs against this Veteran’s claim. The Board notes that the Veteran reported by history that he has had knee pain since 1999. See August 2014 Non-degenerative arthritis VA examination, pg. 2. The Board observes however that the first contemporaneous medical evidence of bilateral knee pain was many years after service. In 2007, the Veteran described his knee problem as something that has come and gone over the past few years but was not currently present. In a September 2007 Joint examination, the Veteran’s bilateral knee diagnosis was pain in the knees with no specific etiology, other than wear and tear or overuse. See September 18, 2007 (Joint Examination, D.N.T., MD/MPH). The Board observes that the January 2021 VA examiner found that there was an 11-year gap from service until the evidence of knee complaints. See January 2021 VA Addendum Medical Opinion. Hence, the Board finds that service connection under 38 C.F.R. § 3.303(b) for continuity of symptomology is not warranted, as there is no indication of record of the Veteran experiencing left knee pain or problems continuously since service. Based on a review of the lay and medical evidence of record, the Board finds that entitlement to service connection for a left knee disability is not warranted. In summary, the Board finds that a left knee disability was not shown during service or for many years thereafter and the weight of the evidence is against a finding that the Veteran's current left knee disability is otherwise related to service. Accordingly, the preponderance of the evidence is against this claim and it must be denied. Alemany, 9 Vet. App. 518 (1996). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.