Citation Nr: 21027559 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-14 380 DATE: May 6, 2021 ORDER Entitlement to service connection for a right knee disability is denied. FINDINGS OF FACT 1. The in-service right knee trauma was acute and resolved without residuals. 2. A chronic right knee disability was not manifest in service, arthritis was not manifest within one year of separation and is not otherwise attributable to service. CONCLUSION OF LAW A right knee disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board remanded this case for further development. The July 2018 remand required that any records pertinent to the Veteran's claim for Social Security Administration benefits and disability insurance from the State of California be obtained. Accordingly, the Board's remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pertinent Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air force or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167. The requirement for a current disability is satisfied if the disability is shown at any time subsequent to filing the claim, even if not shown currently. McLain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran has been diagnosed with osteoarthritis of the right knee according to a August 2012 medical note. Osteoarthritis is a form of arthritis. Arthritis is a "chronic disease" under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases to include arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1110, 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b); See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a)). The Board notes that the appellant has not claimed that the Veteran's disability on appeal is the result of combat with the enemy. Therefore, the provisions of 38 U.S.C. § 1154 relating to combat service are not for consideration. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. Direct Service Connection On both of Veteran's September 1969 enlistment examination and August 1971 separation examination, no issues with Veteran's knees were reported. The separation examination stated that lower extremities and other musculoskeletal were noted as normal. In Veteran's discharge summary a physical examination was provided along with a list of physical problems. No problems with Veteran's knees were noted. The physical examination stated that all of Veteran's physical attributes were within normal limits except for tattoos on both arms. On November 17, 1969, a medical note was made reporting that Veteran experienced a superficial laceration on the right knee. Veteran was reportedly sent to surgical and sutured in the clinic. On November 25, 1969, another medical note was made stating that Veteran's sutures were removed. It was noted that the wound did not look infected but the area around the wound was slightly inflamed. In December 1969 Veteran was diagnosed with an infected right knee. Cellulitis was noted on the medical note. In 1971, he was seen for being disoriented, slurred speech, unable to walk straight and unable to do a deep knee bend on toes. He was referred to the psychiatry servie and there was an impression of suspected substance use. A February 1971, medical note was made for Veteran. The note stated that Veteran had been examined and that he qualified for transfer. No additional information or details on the examination were provided by the note. A mental health emergency care note was made for Veteran March 2002. Within the note was a description of Veteran's medical history noting his osteoarthritis in his knees. A medical clinic note was made in May 2004 related to Veteran's complaint of knee pain. Veteran stated during the clinic visit that he has had osteoarthritis since 1995 and had been maintained by Vicodin. He further could not identify any relieving or exacerbating factors, but did state that his pain was better than baseline during the visit. On August 2012, a medical note was made documenting that Veteran reported having chronic knee pain which was worse over the last 24 hours. Veteran reported swelling in the right knee for two years and that he had been provided multiple injections into his knees prior. Veteran denied any history of gout or recent trauma. The examiner noted that Veteran's right knee had a large effusion located predominantly on the medial aspect. The examination showed full range of motion of the knee and no evidence of systemic signs of illness. The examiner stated that the pain was likely secondary to the known severe degenerative joint disease and pressure from the large effusion. A right knee arthrocentesis was performed without complications. In December 2012, an emergency department note was created for Veteran complaining of knee pain. The examiner used knee films that were taken July 2011 and January 2012. The examiner stated that the Veteran had severe degenerative changes involving particularly the medial femorotibial and the patellofemoral compartment suprapatellar joint. Effusion was noted. The examiner noted large calcific densities related to the knee joint that may represent loose bodies as well. A VA examination was provided to Veteran on April 2013. The examiner opined that the claimed condition was less likely than not incurred in or cause by the claimed in service injury, event, or illness. The examiner explained that while there was a lacerated wound to the anterior of the right knee, the condition was resolved without any residuals. There was no mention of any involvement of the right knee joint during the injury or treatment of the lacerated wound. The examiner did diagnose the Veteran with a right knee degenerative joint disease (DJD) and effusion. However, the examiner stated that this diagnosis is an age-related condition completely unrelated to the in-service events. On April 2014, a private progress note was provided to the VA by Veteran's private doctor. The doctor noted that Veteran had severe right knee DJD in the lateral, patellofemoral and medial compartments. The examiner stated "certainly, the report of his injury in boot camp is consistent with progressive degenerative arthritis in his R knee, and likely accelerated that process". The private examiner does not provide any rationale to why the Veteran's laceration would cause or accelerate arthritis. The probative value of this opinion is little due to the lack of explanation and the note not stating which records were examined before issuing this opinion. On December 8, 2017, the VA received a lay statement from Veteran's sister. Veteran's sister stated that Veteran received a knee injury while in boot camp in 1969, but does not remember any other details about the injury. The Board notes that while Veteran did receive a knee injury in boot camp it still does not create a nexus between the event and the currently diagnosed injury. The Board noted that Veteran may had been in receipt of disability benefits from the Social Security Administration (SSA) and disability insurance from the State of California. The Board received correspondence from the SSA in October 2019 stating that the medical records requested had been destroyed. See October 2019 Medical Treatment Records-Furnished by SSA. The VA sent a letter to Veteran dated June 10, 2020 informing the Veteran about the lack of records and asked for Veteran to provide any that he had related to his SSA benefits. See June 2020 Final Attempt Letter. The Veteran subsequently did not provide any additional records and a review of the case determined that Veteran was receiving employment development based on weekly unemployment from the State of California. During service, there was a report of an inability to perform a deep knee bend. However, nothing in the document reflected an orthopedic issue. The Board notes that Veteran did sustain an in-service injury to the right knee in the form of a superficial laceration. However, Veteran is currently diagnosed with osteoarthritis of the right knee. During the May 2004 visit Veteran stated that he has had knee osteoarthritis since 1995. The Board notes as well that the earliest mention of Veteran's osteoarthritis in the record is in 2002. Regardless of the exact date, there was no proof of such disability during service or within one year of separation from service. The Veteran was provided two medical opinions, one VA examination in April 2013 and another from the private doctor in April 2014. The VA examination stated that it had reviewed the Veteran's service treatment records and saw the injury that Veteran did experience while at bootcamp. The VA examination provided a negative medical opinion since the injury resolved without any residuals. Further the examiner points that there was no mention of knee joint involvement with the Veteran's injury. The private medical opinion does not provide any rationale to why the Veteran's superficial laceration caused degenerative joint disease decades after service. Therefore, the VA opinion provides more probative value disproving the nexus requirement for service connection. Here, there was an in-service injury. However, the most probative evidence establishes that the injury was superficial and did not involve the joint. Furthermore, arthritis was not noted, manifest or diagnosed during service or within one year of separation from service. Rather, at separation, the lower extremities were normal and there was no proof of arthritis until decades following service. To the extent that there is an assertion of continuity, such after the fact assertion is inconsistent with the normal separation examination. To the extent that the Veteran asserts that the Veteran's right knee disability is related to service, the Board finds that the Veteran's and Veteran's sister statements regarding this disability are far less probative and less credible than the objective evidence of record to include the service treatment records and the post-service medical records. The preponderance of the evidence is against the claim and there is no doubt to be resolved. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Konieczny, Adam 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.