Citation Nr: 21024805 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-24 970A DATE: April 26, 2021 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a right ankle disability is denied. FINDINGS OF FACT 1. A chronic left knee disorder was not shown in service or within one year of active service, and the preponderance of the evidence fails to establish that a present left knee disability is etiologically related to service. 2. A chronic right knee disorder was not shown in service or within one year of active service, and the preponderance of the evidence fails to establish that a present right knee disability is etiologically related to service. 3. A chronic right ankle disorder was not shown in service or within one year of active service, and the preponderance of the evidence fails to establish that a present right ankle disability is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from January 1998 to January 2001. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter “the Court”) in April 2020, which granted a joint motion for partial remand (JMPR) vacating a July 2019 Board decision and remanding the issues on appeal for additional development. The issues initially arose from an October 2014 rating decision by the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). They were remanded for additional development by the Board in October 2020. SERVICE CONNECTION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The term “disability” for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and it is noted that pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Arthritis is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether evidence submitted by a claimant is credible, VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). A medical opinion based upon an inaccurate factual premise may be discounted entirely. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a right ankle disability. The Veteran contends that he has left knee, right knee, and right ankle disabilities as a result of active service. He asserts they developed due to the cumulative effects of duty, training, and sport activities and that he generally avoided treatment in service because of military culture. He stated he had experienced knee and ankle problems since service. His spouse reported that he had complained of pain in the feet and knees during service and that over time she had noticed his pain including to the knees. VA records show adequate efforts were taken to assist the Veteran in obtaining copies of his private treatment reports. In a February 2021 statement the Veteran reported having many unreported injuries in service and asserted that he was a combat veteran. He identified no specific injuries as a result of combat service. A February 2021 statement from M.B.S. attested to a military culture during his service from 1997 to 2018 that discouraged soldiers from seeking medical attention. Waiver of Agency of Original Jurisdiction (AOJ) consideration of these statements is presumed. In correspondence subsequently received in February 2021 the Veteran requested that his claims be decided as soon as possible, Service treatment records are negative for complaint, treatment, or diagnosis of a right knee disorder. Records show the Veteran was treated for left knee pain in June 1999 and for a right ankle sprain in July 2000. In an August 2000 post-deployment assessment report noted the Veteran indicated his general health was very good and that he did not have any unresolved medical problems that developed during deployment. Records indicate service in Bosnia from March 2000 to September 2000. VA examination reports in September 2014 noted the Veteran did not now have nor had he ever had a knee or ankle condition. It was noted he reported wear and tear over long-term use in service and that his boots caused bunions and joint pain. He stated he had pain with movement. A November 2015 private medical statement noted the Veteran had been examined with complaint of flare-up of chronic knee and right ankle pain. The examiner noted a positive Clark’s sign on both knees associated with pain on lateral and medial stress testing and right ankle swelling with pain on motion. No opinion as to etiology was provided. A May 2016 statement noted he was receiving care for multiple joint pains including to the knees and right ankle. It was noted that magnetic resonance imaging (MRI) studies revealed degenerative changes in the right knee soft tissue structures and left knee possible meniscal tear. MRI study reports dated in May 2016 noted a normal MRI of the right ankle, a probable tear of the posterior medial meniscus at the meniscocapsular junction with marked edema in the area and some increased signal intensity in the periphery of the medial meniscus of the left knee, and mild posterior horn medial meniscus intrasubstance signal compatible with myxoid degenerative change and mild thinning to the articular cartilage of the anterior compartment. Private treatment records include reports indicating post-service sports activities. VA ankle conditions examination in June 2017 found the Veteran did not have a current diagnosis associated with the claimed ankle condition. It was noted the Veteran complained of right ankle pain off and on. VA knee conditions examination in June 2017 included diagnoses of meniscal tear of the left knee and traumatic arthritis to the right knee. It was noted the Veteran reported injuries to his knees in service from lifting heavy objects and playing basketball. The examiner found it was less likely that a right or left knee meniscal tear was incurred in or are caused by service. As rationale, it was noted the opinions were based on his review of the Veteran’s medical history and current medical literature. In a July 2017 addendum report, the examiner noted that, although the Veteran was treated for left knee pain in June 1999, the current evidence did not support any chronicity of the left knee pain. It was noted a September 2014 VA examination did not reveal disability of the knees. The Veteran’s right knee arthritis was found to be less likely incurred in or caused by service. The examiner opined that the current right knee condition was due to post-service injury and occupations. VA ankle conditions examination in January 2021 included a diagnosis of right ankle lateral collateral ligament sprain. In an associated medical opinion the examiner found it was less likely that the claimed conditions were less likely incurred in or caused by the claimed in-service injury, event, or illness. As to the right ankle condition, the examiner noted the Veteran’s statements as to his right ankle injury in service and the notes documenting it but found there was little evidence that his service injury represented a chronic pathology that had persisted to the present day. It was noted that imaging studies in 2016 did not reveal any pathology, nor any evidence of pathology that would be consistent with a chronic disorder that would last for more than a decade. VA knee conditions examination in January 2021 included diagnoses of left knee meniscal tear and right knee medial meniscus myxoid degeneration. As to the right knee condition, in an associated medical opinion the examiner found it was less likely incurred in or caused by military service. It was noted that the Veteran stated he incurred a right knee injury in service but that there was little evidence that it represented a chronic pathology that had persisted to the present day. The examiner noted that following his separation from service in 2001 there was no documentation of knee treatment until 2016 and that private treatment musculoskeletal notes dated from 2014 to 2015 dealing with various joint issues were completely silent for knee issues. Although a May 2016 MRI revealed posterior horn medial meniscus myxoid degenerative change to the right knee, the myxoid changes were minimal in nature and, in essence, were less likely associated with an injury approximately 15 years earlier. The manifested degenerative changes of the meniscus were found to be better attributed to advancing age and the examiner stated it was far more reasonable that these mild changes were the cumulative effect of 15 years of aging along with post-service sports activities. As to the left knee condition, in an associated medical opinion the examiner found it was less likely incurred in or caused by military service. It was noted that the Veteran stated he injured his left knee in service and that there was a service medical note documenting a knee injury in June 1999. The examiner found that despite this documentation there was little evidence that it represented the manifestation of a chronic knee injury that could reasonably persist to the present day. The actual service injury report did not document any findings to suggest a pathology that would persist in a chronic manner and mentioned a negative McMurray’s sign. It was noted that post-service treatment records were completely silent for knee issues prior to the May 2016 MRI study revealing a probable tear of the posterior medial meniscus of the left knee with marked edema. The examiner stated that the “marked edema” finding suggested that the meniscal injury was more of a recent nature and possibly reflective of an undocumented acute physical injury. Meniscal tears, it was noted, were often associated with sharp pain on pivoting, buckling of the knee, and locking of the knee when attempting to extend it to neutral from a flexed position and that ignoring such symptoms for 15 years seemed unlikely. Based upon the evidence of record, the Board finds that chronic left knee, right knee, and right ankle disorders were not shown during active service. The Veteran’s statements as to having sustained knee and ankle injuries in service, to some extent, are credible and consistent with the circumstances of his service. However, the overall evidence of record is persuasive that any such injuries in service were acute and resolved prior to separation. There is no competent and credible evidence demonstrating that arthritis to the left knee or right ankle nor that right knee arthritis was manifest within one year of active service. The Board also finds that the preponderance of the evidence fails to establish that any present disabilities are etiologically related to service. The June 2017, July 2017, and January 2021 VA opinions as to these matters are persuasive. The opinions, overall, are shown to have been based upon adequate rationale. Further, the examiners are shown to have reviewed of the evidence then of record and to have adequately considered the credible lay statements, medical literature, and reported symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board acknowledges that the Veteran and his spouse are competent to report observable symptoms, but there is no indication they are competent to etiologically link any such symptoms to a current diagnosis. They are not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that they received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. Consideration has been given to the Veteran’s personal assertions that he has present knee and right ankle disorders as a result of service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The chronic disabilities at issue are not matters that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Further, the statements regarding persistent symptoms of left knee, right knee, and right ankle disability since service are deemed credible. However, they are not as probative as the medical examination opinion, which explains why it is less likely that his current symptoms are related to service. In conclusion, the Board finds service connection for left knee, right knee, and right ankle disabilities is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claims. Amanda E.H. Gibson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.