Citation Nr: 21025790 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-14 132 DATE: April 29, 2021 ORDER Entitlement to service connection for mild degenerative changes of the left knee, claimed as left knee condition, is denied. FINDINGS OF FACT 1. A greater weight of the medical and other evidence of record is against a finding that the Veteran has a left knee condition that had its onset in-service or is otherwise related to a disease or injury during military service. 2. A left knee condition was not manifest to a compensable degree within one year of separation from active duty service and is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for mild degenerative changes of the left knee, claimed as left knee condition, have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 4.3, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1979 to February 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran appeared before the undersigned Veterans Law Judge at a November 2019 Board videoconference hearing. A copy of the transcript is part of the record. The issue of service connection for tinnitus was granted in a February 2020 Board decision. The remaining issues on appeal, service connection for bilateral hearing loss and left knee condition, were remanded in February 2020 to obtain any outstanding treatment records of the Veteran and to perform VA medical examinations for an opinion on the issue of service connection. The Veteran was granted service connection for bilateral hearing loss in an August 2020 VA rating decision. The matter of service connection for a left knee condition remains the only issue on appeal. Unfortunately, the Veteran passed away prior to the adjudication of this appeal. The spouse of the Veteran was approved as a substitute claimant. 1. Entitlement to service connection for mild degenerative changes of the left knee, claimed as left knee condition The Veteran contends that he is entitled to service connection for his left knee. See October 2016 VA Form 21-0958, Notice of Disagreement. Duty to Notify and Assist Neither the Veteran nor his representative have 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). VA must notify the claimant of any information, including any medical or lay evidence, not previously provided to VA, that is necessary to substantiate the claim. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has satisfied its duties to inform the Veteran in this case. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 21.1032(a). The duty to notify was satisfied by September 2016 VA Rating Decision Narrative. See also September 2016 VA Notification Letter, February 2017 Statement of the Case, and August 2020 Supplemental Statement of the Case. VA’s duty to assist functions to aid a claimant in obtaining evidence necessary to substantiate a claim, but VA is not required to provide assistance to a claimant when there is no reasonable possibility that assistance would aid in substantiating the claim. See 38 U.S.C. § 5103A (2012). As for VA’s assistance to the Veteran, the entire record was available to the August 2020 medical examiner, a Knee and Lower Leg Conditions examination was performed, and the testing was sufficient to adequately address all potential rating criteria. See 38 U.S.C. § 7104(d)(1); 38 C.F.R. §§ 3.385, 4.87. See also August 2020 VA Knee and Lower Leg Conditions examination report. The Board finds that VA has done everything reasonably possible under 38 C.F.R. § 21.1032(a) to assist the Veteran. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein, nor is there an indication that any outstanding evidence, relevant to the claim, needs to be obtained. See February 2021 5103 Notice Response (“I will send more information or evidence to VA to support my claim.”). All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2017). Further development and further assistance by VA are not warranted. The RO’s efforts have substantially complied with the instructions contained in the February 2020 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). An additional remand for further development of this claim would serve no useful purpose. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. Service Connection A Veteran is entitled to compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. 38 U.S.C. §§ 1110, 1131; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include arthritis, to a compensable degree (10 percent) within one year 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, 1137; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection is by establishing continuous symptoms since service. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Continuity of symptomatology under 38 C.F.R. § 3.303(b) may be established by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the Fed Circuit Court of Appeals clarified that the law providing for awards of service connection based on continuity of symptomatology is limited to a “chronic” disease listed under 38 C.F.R. § 3.309(a), such as arthritis. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). Although the credibility of lay evidence may not be refuted solely by the absence of corroborating medical evidence, it is a factor. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). Other factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). The Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the Veteran is competent to provide a diagnosis of an observable condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of degenerative joint disease or osteoarthritis. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Factual Background As an initial matter, the Board notes that the Veteran’s service treatment records do not contain a separation physical. Whether an examination was conducted at separation is unknown. The Board also takes note of the fact that the Veteran indicated treatment at “El Paso VAMC TX 2000 2015.” See August 2016 VA Form 21-526EZ, Application for Disability Compensation. An RO review of available records revealed that the Veteran first attended “walk-in” treatment at VAMC El Paso in March 2003, registering as a patient there for the first time. The RO determined that “VAMC El Paso records prior to March 2003 do not exist.” See September 2016 VA Form 21-0820, Report of General Information. Under such circumstances, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board’s analysis of the Veteran’s claims is undertaken with this duty in mind. The cited case law does not lower the legal standard for proving a claim of service connection. Rather, it increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Service treatment records for the Veteran note multiple non-left knee related complaints from January 1980 to January 1984. See Veteran Service Treatment Records, Chronological Records of Medical Care. As confirmed by the Veteran in his November 2019 Board hearing testimony, he did not seek treatment for left knee pain, nor did he receive treatment for a left knee condition during active duty service. See November 2019 Board videoconference hearing transcript. In March 2009, the Veteran was provided an orthopedic consultation after someone “ran him over with car.” The Veteran reported “pain and tingling” in his right leg and foot. The Veteran was X-rayed in both lower extremities, including his left knee. The X-ray was negative for the left knee. Findings included no fractures, suspicious osseous lesions, or significant degenerative changes noted. In addition, no soft tissue abnormalities or joint space effusions were identified. The impression was “Unremarkable left knee plain film series.” See March 2009 William Beaumont Army Medical Center Consultation Sheet and Radiology Consultation Report. The first documented complaint of “knee pain” after service came during the Veteran’s August 2015 inpatient psychiatric treatment, “Complains of back and knee pain and dry eyes. Inquired about possible X-rays of knee and back.” See August 2015 VA Psychiatry Inpatient Note. An X-ray of the left knee revealed “minor degenerative changes” and “no acute process.” See September 2015 VA Psychiatry Inpatient Note. The Veteran complained further about “ongoing pain to back and left knee” during inpatient psychiatric treatment, rating his pain “9/10.” See August 2015 VA Nursing Psychiatry Assessment / Plan of Care. An orthopedic consult was provided to the Veteran in September 2015 and documented “0-120 degrees active flexion of knee without pain in (left) knee.” See September 2015 VA Orthopedic Surgery Consult. A September 2015 psychiatric discharge note included the following: “(In) September 2015, patient presented to Triage with complaints of pain 10/10 stating he has a ‘mass on upper left leg’ and has had pain since yesterday...The patient was complaining of left leg pain for the past month. He subsequently had an X-ray and MRI performed which showed a bone mass suspicious of a neoplastic lesion...The patient (described) throbbing pain in his upper left thigh. He endorses mild left leg weakness. Pain is constant, worse with internal rotation and movement. Patient denies any paresthesia or numbness.” See September 2015 Mental Health Discharge Note. See also July 2017 VA Hematology and Oncology Outpatient Note (“Stage IV lung adenocarcinoma metastatic to right kidney, left femur and liver.”). In October 2015 the Veteran reported “left leg pain after a fall two days earlier.” He was diagnosed with a “trochanteric fracture.” See October 2015 VA Palliative Care Consult. January 2016 VA treatment notes document “Chronic pain from malignancy, mostly left leg.” See January 2016 VA Oncology Clinic and Hematology and Oncology Outpatient Notes. In February 2016, the Veteran reported “difficulty donning shoes due to hip (range of motion) limitation.” See February 2016 VA Physical Therapy Note. The Veteran completed a “total (left) hip replacement” in May 2017 at Moffit Cancer Center. See May 2017 VA Administrative Note. A June 2017 orthopedic note stated: “In the interval since his last orthopedic clinic visit (in March 2017), he underwent left proximal femoral replacement at Moffitt Cancer Center. Apparently, his postoperative course was uneventful until approximately 10 days ago, at which time he alleges that he was shot in the left thigh and sustained a fracture of his left femur just distal to the cement mantle.” See June 2017 VA Orthopedic Surgery Follow-up Clinic Note. In September 2017, physical therapy notes indicate: “He suffered a pathologic fracture to his (left) femur...He then suffered a (gunshot wound) to his (left) hip in March 2017. He developed an infection...Range of Motion: Left knee flexion 100 degrees, Left knee extension 0 degrees. Strength 4/5...Pain: denies pain, just stiffness.” See September 2017 VA Physical Therapy Consult Note. The Veteran reported “left knee swelling” in August 2018 and requested a “large dose” of ibuprofen. See August 2018 VA Nursing Outpatient Note. In March 2020, the Veteran had X-rays taken of his left knee. The results indicated: “Left patella is intact in patellofemoral joint preserved with mild (degenerative joint disease); [f]racture with fixation hardware is present in distal left femur with adjacent shrapnel or bullet and fragments.” See March 2020 VA Left Knee X-ray Report. The Veteran participated in a VA Knee and Lower Leg Conditions examination in August 2020. The examiner reviewed the claims file and considered the statements of the Veteran, including his description of the in-service injury. The Veteran reported that he was going to get a part for the motor pool, running in the rain, and fell into a large construction hole. He was diagnosed by the VA examiner with left knee joint osteoarthritis and knee instability. The Veteran reported flare-ups with sharp and throbbing pain, with more difficulty moving his knee in the mornings. Flare ups were reported as 30 minutes in duration, several times per day, with moderate severity, precipitated by prolonged sitting, standing, or walking, and alleviated by changing positions or resting. See August 2020 VA Knee and Lower Leg Conditions examination report. Regarding functional loss with repeated use over time, the Veteran indicated that he is unable to walk more than 100 yards, has difficulty getting in and out of the shower, and is unable to bend the knee. The Veteran reported pain on both flexion and extension, with pain on weight-bearing movement. The VA examiner documented “significant limited range of motion in flexion and extension,” with the inability to fully extend leading to difficulty in walking. Due to the Veteran’s “asymmetric gait,” he required the use of a walker to ambulate. There was no evidence of crepitus, ankylosis, recurrent subluxation, lateral instability, recurrent effusion, recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, other tibial or fibular impairment, or meniscal conditions. See August 2020 VA Knee and Lower Leg Conditions examination report. Pain was noted as a factor that contributed to functional loss. Additional contributing factors of the left knee disability was described as swelling, disturbance of locomotion, and interference with sitting and standing. Muscle atrophy was noted, with one third the quadricep circumference noted from right to left. The VA examiner noted the Veteran’s prior left femur fracture, with subsequent revision surgeries. Functional impact for the Veteran was reported as the inability to “stand beyond 2 minutes, walk beyond 100 yards, lift, or balance when standing.” See August 2020 VA Knee and Lower Leg Conditions examination report. Regarding service connection, the August 2020 VA examiner opined, “The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In formulating her opinion, the VA examiner stated: “Left knee (degenerative joint disease): Lack of evidence of records reflecting chronicity of condition or continuity of care since service ended in relation to left knee pain. No document of injury at time of injury or shortly thereafter.” See August 2020 VA Knee and Lower Leg Conditions examination report. Analysis Pursuant to the February 2020 Board remand to “identify all left knee conditions present during the period on appeal,” the August 2020 VA examiner diagnosed the Veteran with “left knee joint osteoarthritis and knee instability.” See August 2020 VA Knee and Lower Leg Conditions examination report. Therefore, the first element of service connection is established. The second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of an injury or disease. The entry physical for the Veteran reflects “Normal Lower Extremities.” His self-evaluation form is negative for “Bone, joint or other deformity” and “Trick or locked knee,” and additional examination notes for the Veteran do not reflect any pre-existing knee conditions. See May 1979 Reports of Medical Examination and Medical History. The aforementioned sick call reports do not reflect any complaints, treatment, or diagnoses for a left knee condition. While lay evidence alone can be sufficient to establish any element of a claim (See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)), the lack of consistency between the Veteran’s statements with the other evidence of record presents issues of credibility regarding an in-service event. First, the Veteran testified in his November 2019 Board hearing, “I was running across a field to get some parts, and I fell in a hole.” See November 2019 Board videoconference hearing transcript. Personnel records for the Veteran indicate that he was a “PLL Clerk.” The job description for PLL Clerk states, “Responsible for managing and maintaining equipment records and historical documents for thirty-five wheeled and tracked vehicles in a mechanized rifle company.” See March 1984 DA Form 2166-6, Enlisted Evaluation Report. Second, service treatment records dated September 1981 reflect that the Veteran injured his right (emphasis added) knee when he “stepped in a hole and fell on knee.” See September 1981 Chronological Record of Medical Care. The Veteran claimed that he injured his left knee when he “fell in a hole.” See November 2019 Board videoconference hearing transcript. Third, Buddy Statements from the Veteran reflect, “[H]e injury his left knee when he fall during a road march (at Fort Hood), his left knee still bother him today [sic].” See August 2016 and November 2019 Buddy Statements. It is not clear to the Board if these statements are the product of personal knowledge or information from the Veteran, which raises a credibility issue in and of itself. Fourth, the Veteran testified at his November 2019 Board hearing, “I never went to sick call for anything.” See November 2019 Board videoconference hearing transcript. As mentioned previously, the Veteran has 7 documented visits to the infirmary, including a September 1981 complaint of right knee pain. See Veteran Service Treatment Records, Chronological Records of Medical Care.   Fifth, there is no evidence of left knee pain to a compensable degree within the presumptive period after service. The first documented complaint of knee pain after service is August 2015. See August 2015 VA Psychiatry Inpatient Note. Sixth, the closest the Veteran came to evidence of continuity of symptomatology was a statement at the November 2019 Board hearing, “Once I was older, it started affecting me more.” The United States Court of Appeals for Veterans Claims held that “Symptoms, not treatment, are the essence of any evidence on continuity of symptomatology.” See Savage v. Gober, 10 Vet. App. 488 (1997). The Veteran offered no evidence of symptoms after service, only “[s]ometimes he has to have an icepack on it.” See November 2019 Board videoconference hearing transcript. Seventh, the Veteran testified at his November 2019 Board hearing that August 2015 pain was not specific to his left knee but “[t]he whole leg actually.” See November 2019 Board videoconference hearing transcript. Contemporaneous medical evidence has greater probative value than the Veteran’s reports of history. See Curry v. Brown, 7 Vet. App. 59 (1994). The medical evidence from a March 2009 X-ray was “negative.” See March 2009 William Beaumont Army Medical Center Consultation Sheet and Radiology Consultation Report. The left leg pain described by the Veteran in August and September 2015, referenced in the November 2019 Board hearing, was medically identified as a tumor that metastasized from his lung. See September 2015 Mental Health Discharge Note and July 2017 VA Hematology and Oncology Outpatient Note. Other medical evidence reveals that in October 2015, the Veteran broke his left leg just above the knee. See November 2015 VA Oncology Clinic Note (“Left leg with staples noted (clinical documentation improvement) above knee.”). In March 2017, the Veteran experienced a gunshot wound to his left hip and “underwent a left proximal femoral replacement.” While recovering, the Veteran “developed an infection.” See June VA Orthopedic Surgery Follow-up Clinic and September 2017 VA Physical Therapy Consult and Notes. In addition, the Veteran had a total left hip replacement in May 2017. See May 2017 VA Administrative Note.   The evidence of record, including X-ray findings from March 2009, August 2015, and March 2020, the additional treatment records, and the medical opinion from the August 2020 VA examiner, which highlighted the lack of “chronicity” and “continuity of care,” is against a finding that the Veteran’s current left knee condition is attributable to an in-service event, illness, or injury. The Veteran has not objected to the adequacy of the August 2020 examination conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). Finally, the Veteran does not meet the requirements for presumptive service connection, either by diagnosis in-service, within the prescribed time limits after service, or through continuity of symptomatology, and he is not entitled to the presumption of an in-service incurrence, aggravation in-service, or nexus to service. Conclusion In summary, the August 2020 opinion from the VA examiner is the most probative evidence of record on the question of diagnosis and nexus to service. The opinion was based on an extensive review of all of the evidence, including lay statements from the Veteran, was supported by a detailed rationale, provided data to support any conclusions, and it provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The August 2020 VA examiner’s opinion is consistent with the evidence of record, including the March 2009, August 2015, and March 2020 X-rays and the treatment notes, which begin in August 2015. Determining the origins of osteoarthritis is complex, so supporting medical evidence is required, not just mere lay opinion. When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). The VA examiner’s opinion provides compelling evidence against the Veteran’s claim. The Veteran contends that his claimed disability exists and is related to his active service. This opinion is of no probative value, because he lacks the medical expertise needed to diagnose osteoarthritis or to attribute it to active military service. Further, the Veteran’s statements are given less probative value, because they are inconsistent with the evidence of record. There is no competent, credible evidence to refute the August 2020 VA examiner’s opinion. The weight of the probative evidence of record is against a finding that the Veteran has a diagnosis of osteoarthritis that is causally or etiologically related to any disease, injury, or incident, in-service. Consequently, service connection is not warranted. Further, there is no evidence that the Veteran’s osteoarthritis may be related to any of his service-connected disabilities. As the preponderance of the evidence is against the claim for service connection for osteoarthritis, this claim must be denied. The Board acknowledges that the Veteran may sincerely believe his current diagnosis of osteoarthritis warrants service connection. However, without the appropriate medical training and expertise, which he has not demonstrated, he is not competent to provide an opinion regarding the etiology of his knee condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (holding that where the determinative issue is one of medical causation or diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue).   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, in the absence of any competent, credible, and probative evidence relating the Veteran’s current disorder to service, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Small, Attorney Advisor 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.