Citation Nr: 21025401 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 09-42 118 DATE: April 28, 2021 ORDER Entitlement to service connection for a bilateral knee condition, to include as a component of an undiagnosed chronic illness associated with service in Southwest Asia is denied. FINDING OF FACT The Veteran has a currently diagnosed bilateral knee condition which did not manifest in service or within a year of separation therefrom, and his current condition bears no etiological relationship to any aspect of active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral knee condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July to November 1986 and from November 1990 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in February 2015, when it was remanded for development, and in May 2017, when the claim was denied. The Veteran appealed that decision to the Court of Appeals for Veterans’ Claims, which, pursuant to a May 2018 Joint Motion for Partial Remand, vacated the May 2017 Board decision and returned the matter to the Board. In May 2019 and October 2020, the Board remanded the matter for development. It now returns to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for a bilateral knee condition, to include as a component of an undiagnosed chronic illness associated with service in Southwest Asia Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, 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 (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), 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, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.317, service connection may be warranted for veterans who exhibit objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi-symptom illness, the disability must have been manifest during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2021. The Veteran has qualifying service in Southwest Asia and asserts that his current knee symptoms may constitute components of a chronic multi-symptom illness associated with that service. A review of the Veteran’s service records does not reveal an in-service diagnosis of any disorder of either knee, nor complaints of chronic knee pain or any acute injury to either knee. The Veteran has asserted that he fell out of a truck while on deployment and has had bilateral knee pain since that time. It does not appear, however, that any knee-related diagnosis related to that accident was furnished during service or within a year of separation therefrom. Moreover, no treating or examining provider has furnished a knee-related diagnosis in contemplation of any in-service injury, including one associated with a fall from a truck, at any time since service, to include during the current appeal period. The Veteran has been afforded several VA examinations in connection with his claim. In June 2015, a VA examiner opined that the Veteran’s current knee problems were attributable to a known underlying clinical diagnosis, and therefore not components of a chronic multi-symptom illness associated with Southwest Asia service. However, the only current diagnosis listed on the report associated with that examination is bilateral knee pain, for which reason the Board affords limited probative weight to this assessment. An examiner with whom the Veteran met in September 2019 furnished a firm diagnosis of bilateral knee strain, opining that that condition was less likely than not incurred in or caused by service, given the lack of objective evidence of knee problems of any kind in service or within a year (or indeed many years) of separation therefrom. A June 2020 addendum opinion adds that “[b]ilateral knee strain is less likely than not a disability pattern related to a specific exposure event experienced by the Veteran during service in Southwest Asia.” A final VA opinion was issued in January 2021, pursuant to a Board remand. The examiner who furnished that opinion explained that “[t]here is no evidence of a chronic knee injury while in service…interim exam and separation exam are negative for knee conditions, [and] these exams are notably thorough and it is unlikely a significant knee condition would be unreported or unnoticed.” The examiner added that “separation examination includes review of available records, further limiting opportunities to miss a significant knee condition,” for which reason the examiner concluded that “[t]here is no evidence of a knee condition arising until in or around 2015.” The examiner further explained that diagnostic imaging from May 2015 was normal, with the exception of a tiny osteophyte on the superior pole of the right patella and a questionable small effusion in the same area on the left knee, which findings do not constitute degenerative joint disease. Those findings, the examiner indicates, are consistent with more recent events, rather than being related to events occurring during the Veteran’s period of active service. The examiner added the findings were suggestive of quadriceps tendonitis, which would not occur during a fall, and which is more commonly associated with overuse over time. The bilateral nature of the tendonitis further supports the conclusion, in the examiner’s view, that the current condition is unrelated to any in-service event, including a fall. Finally, the examiner explains that the nature of the Veteran’s current condition indicates no relationship to any toxic exposure of any kind in Southwest Asia, clarifying that “[t]here is no plausible mechanism by which a remote exposure can cause the current conditions.” The Board regards the most recent VA examiner’s assessment as the most probative evidence of record on the question of the etiology of the Veteran’s knee condition in this case. The opinion is thorough, fully explained, predicated on a review of the record, including the Veteran’s lay statements, and is in general accord with the other evidence of record. It is accorded great probative weight. While the Board has considered with sympathy the Veteran’s lay statements, it cannot afford probative weight to his assertions with respect to the etiology of his bilateral knee condition in this case. While he is competent to report his experiences and symptoms since service, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his condition, including any relation between the condition and Southwest Asia service. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran’s reports of his symptoms are relevant, competent, and credible; however, the question of the etiology of his condition is limited to the purview of someone with medical knowledge and training, such as the most recent VA medical examiner in this case. In sum, the evidence does not show that it is at least as likely as not that the Veteran’s bilateral knee condition is related to active service, or that it constitutes a component of a chronic multi-symptom illness associated with Southwest Asia service. The probative value of the Veteran’s assertions is outweighed by the probative value of the thorough and reasoned opinion of the VA medical expert. As the preponderance of the evidence is against the claim, service connection for a bilateral knee condition must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sahraie, 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.