Citation Nr: 21027732 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 12-14 370 DATE: May 6, 2021 ORDER Service connection for a right knee disorder, to include as secondary to the service-connected left knee disability is denied. FINDING OF FACT The Veteran's right knee disorder, diagnosed as right knee osteoarthritis and right knee degenerative arthritis, is not related to service, did not manifest within a year of service discharge, and is not proximately due to, the result of, or aggravated by service-connected left knee disability. CONCLUSION OF LAW The criteria for service connection a right knee disorder as secondary to the service-connected left knee disability, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1966 to April 1968. The Veteran presented testimony at a Board hearing in April 2014. By way of history, in a September 2017 Board decision, the Veteran's claims for service connection for bilateral hearing loss, left knee, and right knee disabilities were denied. Thereafter, the Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). By a February 2019 Order, the Court vacated the September 2017 Board decision and remanded the claim back to the Board for compliance with instructions pursuant to a January 2018 Joint Motion for Remand (JMR). As noted above, the Veteran testified at a Board hearing in April 2014. A transcript of that hearing is of record. In April 2016, the Veteran was notified that the Veterans Law Judge who conducted the hearing was unavailable to participate in a final decision of his appeal and was notified that he could request another hearing before a different Veterans Law Judge. The Veteran replied that he did not want another hearing. More recently, in October 2020, the Veteran's attorney indicated that, in response to the Board's letter dated earlier that month about a travel board hearing, he did not wish to testify at another Board hearing and instead requested that the Board adjudicate his appeal as expeditiously as possible. In December 2020, the Board granted the claims for service connection for bilateral hearing loss and for left knee osteoarthritis. The claim for service connection for a right knee disorder as secondary to the service-connected left knee disability was remanded for further development. The development requested has been completed and the issue was readjudicated by the RO in a February 2021 supplemental statement of the case. The case has been returned to the Board for adjudication. Service Connection for Right Knee DisorderLaws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran asserts that he is entitled to service connection for a right knee disorder as due to his service-connected left knee disability. See April 2014 Board Hearing Transcript at pgs. 4, 26. Specifically, the Veteran testified that his left knee was in "really bad shape" and when he walked, he walked with an altered gait to compensate for the pain in his left knee. See id. He also contends that his knee disabilities are the result of a November 1967 in-service car accident. The Veteran has a current diagnosis of right knee pain, right knee osteoarthritis, and right knee degenerative arthritis. See November 2016 and November 2019 Knee and Lower Leg DBQ; see also February 2021 VA knee examination report. Service treatment record dated in November 1967 confirm that the Veteran sustained abrasions to both knees from a car accident. Thereafter, service treatment records indicate that the Veteran sought treatment for unrelated issues including a sore throat, a bruised right hand, and conjunctivitis, but not for his knees. The February 1968 separation report of medical examination and separation report of medical history are both negative for lower extremity or musculoskeletal troubles or abnormalities. Further, there is no evidence of a right knee disability manifesting to a compensable degree within one year of separation from service. Therefore, the preponderance of the evidence demonstrates that the Veteran did not suffer a chronic right knee disability during service or within one year of separation from service. Accordingly, presumptive service connection is not warranted and service connection for bilateral knee disabilities may not be established based on chronicity in service. 38 C.F.R. § § 3.307, 3.309. Additionally, the evidence does not demonstrate continuous symptomatology since service attributable to the Veteran's skin abrasions in 1967. See 38 C.F.R. § 3.303 (b). While the Veteran contends that his left knee continued to hurt after service and resulted in secondary right knee problems, the earliest record of treatment for his right knee is not until 2005-almost forty years after service. The absence of any medical complaint or treatment for almost four decades weighs against a finding of his contention of onset in service and continued symptomatology thereafter. Furthermore, the Veteran did not make a similar contention (i. e., that his right knee disorder was due to active duty military service) in his application for Social Security Administration (SSA) disability benefits. He did, however, disclose that he regularly lifted 25 pounds or more working at the Micon Factory from 1977 to 1985. He also reported lifting 50 pounds or more while loading and unloading trucks for 8 hours per day, 5 days per week, for D.S.L. (a private company) from 1989 to 1990 and from 1992 to 1995. Altogether, these facts show that the November 1967 knee abrasions were an isolated finding, not a chronic right knee disability shown in service. Therefore, service connection based on continuation of symptomatology is not warranted. Additional evidence demonstrates that the Veteran's current right knee disorders were neither caused by service, nor caused or aggravated by the Veteran's other service connected disabilities. The Veteran was afforded three VA examinations to help substantiate his claim in May 2010, June 2015, and November 2016. The May 2010 examination and opinion lacks probative value because the examiner was unable to obtain sufficient information due to a language barrier. In June 2015 examination report, a Spanish speaking VA examiner reviewed the Veteran's claims file and opined that the Veteran's right knee disorder was not related to his active military service. The examiner explained that the November 1967 abrasions were most likely acute and transient given the extensive time gaps between military service and initial treatment for the right knee. In November 2016, the same VA examiner found no evidence of continuation of symptomatology and added that the Veteran's knee condition was related to joint changes that occur as part of the normal aging process. More specifically, x-rays and the September 2013 surgical report show that he has a primary type osteoarthritis which was commonly found in people over 55 years old. Additionally, the VA examiner opined that the Veteran's knee disorder is not caused by his other service connected disabilities, including diabetes mellitus, hypertension, and degenerative changes of the shoulder, because they have an unrelated pathophysiology. The examiner found no evidence of aggravation. Pursuant to the 2018 JMR, the parties agreed that the Board erred in failing to provide adequate reasons and based for denying the claim for service connection for a right knee disorder. Specifically, the Board erred in finding the Veteran's lay testimony was not credible given that the Board had found the same evidence competent and credible in prior remand. Second, the Board provided inadequate reasons and based for its findings that the November 2016 VA knee examination was adequate given that the examination reports suffered from the same deficits for which the Board previously remanded the claim. VA obtained another medical opinion in November 2019. At that time, the examiner opined that the Veteran's knee disorders were not related to service. In this regard, the examiner noted that the original incident in 1967 result in abrasions. His separation examination report in 1968 recorded no knee symptoms. Moreover, the fact that the Veteran developed arthritis 25 years after service indicated that the it was less likely than not related to the in-service incident. As it pertained to secondary service connection, the examiner stated that it was less likely than not that that the Veteran's right knee disability was proximately due to or the result of the Veterans service-connected diabetes, and/or diabetic peripheral neuropathy of either the right or left lower extremity. While there was some medical literature investigating the relationship between diabetes and osteoarthritis, the link had yet to be elucidated and the preponderance of the medical literature suggested that the association was based on BMI and poor diet. Likewise, the literature did not support a cause and effect relationship between neuropathy causing osteoarthritis. The Board notes that the Veteran has consistently suggested that his right knee disorder is secondary to his service-connected left knee disability. Pursuant to the Board's December 2020 remand directives, VA obtained a medical opinion in February 2021 regarding the etiology of the Veteran's right knee disorder as it pertained to the service-connected left knee disability. At that time, the examiner opined that the Veteran's right knee disorder was neither proximately due to or aggravated by the service-connected left knee disability. In support of these opinions, the examiner stated that there was no evidence in medical literature showing that degenerative joint disease in one side caused the same disease in the contralateral side due to changes in weight bearing. Moreover, the Veteran's gait was non antalgic; as such, this factor could not be considered as contributing to the Veteran's right knee osteoarthritis. There was also no leg length discrepancy. The examiner also noted that, since there was no biomechanical relationship between degenerative joint disease in one leg with the contralateral side, there was no cause for aggravation of the condition. There was no pathophysiologic link between the two knee conditions. The Board finds the VA examiner's opinion highly probative to the question at hand. The examiner possessed the necessary education, training, and expertise to provide the requested opinion. It also appears that the examiner reviewed relevant medical literature pertaining to the Veteran's assertions. The examiner also reviewed the claims file and conducted a physical examination of the Veteran's knee, including observing his gait and any possible leg length discrepancies. The examiner provided a complete rationale for the opinions stated. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). While the Board acknowledges the Veteran's contention that his right knee disorder is secondary to his service-connected left knee disability, he is not competent to provide an opinion as to the etiology of his right knee disorder, diagnosed as osteoarthrosis, as he has not been shown to have the requisite medical knowledge, training, or experience. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Osteoarthrosis is a medically complex disease process because of its multiple possible etiologies, requires specialized testing to diagnose, and manifests even observable symptomatology that may overlap with other disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). For these reasons, the preponderance of the evidence is against the claim; thus, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Accordingly, the claim for entitlement to service connection for a right knee disorder, to include as secondary to the service-connected left knee disability is denied. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.