Citation Nr: 21028378 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-40 247 DATE: May 11, 2021 ORDER Entitlement to service connection for low back disability, to include as secondary to service-connected right knee is dismissed. Entitlement to service connection for left knee disability, to include as secondary to service-connected right knee disability is denied. FINDINGS OF FACT 1. In a January 2021 rating decision, the RO granted entitlement to service connection for degenerative arthritis of the spine, claimed as a lower back injury. 2. The Veteran's left knee disability is not caused or aggravated by his right knee disability; nor is the disability directly related to service. CONCLUSIONS OF LAW 1. As to the appeal of the issue of entitlement to service connection for low back disability, there remains no case or controversy over which the Board may exercise jurisdiction. 38 U.S.C. §§ 7104, 7105. 2. The criteria for entitlement to service connection for a left knee disability as secondary to service-connected right knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2006 to April 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. These matters were previously before the Board in July 2020 when they were remanded for additional evidentiary development. Service Connection 1. Entitlement to service connection for low back disability, to include as secondary to service-connected right knee In January 2021, the RO granted entitlement to service connection for degenerative arthritis of the spine, claimed as lower back injury, evaluated as 10 percent disabling effective September 2014 and 20 percent disabling effective October 2020. The RO's award of service connection for degenerative arthritis of the spine constitutes a full award of the benefit sought on appeal. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). Therefore, the Board finds that there is no longer any case or controversy pending before the Board and the appeal as to this matter must be dismissed. 38 U.S.C. §§ 7104 and 7105. 2. Entitlement to service connection for left knee disability, to include as secondary to service-connected right knee disability The Veteran is asserting entitlement to service connection for his left knee disability. Specifically, he contends that his left knee disability is secondary to his service-connected right knee disability. Additionally, the Veteran asserts his left knee pain began in service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Additionally, service connection for a claimed disability may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). During his June 2020 Board hearing, the Veteran testified that he served as a military policeman and martial arts instructor during military service. He testified that he was responsible for instructing over 200 Marines over a two-year span and training included ground fighting and could take place in full battle gear. He also testified that his deployments to Iraq and Afghanistan contributed to his left knee disability. The Veteran testified that he sustained injuries to his knees from these activities and had experienced continued pain since service. He noted that he had only complained of right knee pain in service because of the severity of right knee pain in comparison. The Veteran also stated that due to his service-connected right knee disability, he tends to favor his left knee, putting more pressure on his left side in order to rest his right knee. This causes pain and irritation in his left knee. A review of the Veteran's service treatment records (STRs) shows no complaints or treatment for any left knee disability, including pain. See December 2005, September 2008, and December 2010, January 2011 STRs. Any notes regarding knee pain or trouble are all attributed to the Veteran's service-connected right knee. During examinations for the Veteran's right knee, the Veteran's left knee was also examined and noted to be negative for McMurray test, patellofemoral apprehension test, and lateral pull test. See July 2010 and August 2010 STRs. The Veteran was afforded VA examinations for his left knee in October 2018. The VA examiner opined that the Veteran's left knee disability was less likely than not related to his service-connected right knee disability. The examiner explained that there was a lack of supporting documentation to support any significant left knee problem and radiographs were normal. The examiner noted that due to the Veteran's right knee disability, the Veteran could be favoring his left side from time to time causing symptoms consistent with overuse syndrome, which was a limited condition without any significant sequelae. Therefore, the examiner opined that there was not likely a left knee condition or injury secondary to his right knee problem. Further, the examiner opined that the Veteran's left knee disorder was not aggravated by his service-connected right knee disability because patellofemoral pain syndrome based on subjective reporting lacked objective supporting evidence. The examiner noted Disability Benefits Questionnaire (DBQ) exams were normal and did not indicate any limitation, loss of function, or disability to the left knee joint, although the Veteran might have a pain syndrome that was bothersome. In accordance with the July 2020 Board remand, the Veteran was afforded a VA examination in November 2020. The VA examiner noted a diagnosis of left knee patellofemoral pain syndrome in 2020. The Veteran reported injuring his right knee in service, causing him to put more weight and stress on his left knee. The Veteran further reported having difficulty standing, running, and walking for a long time. The Veteran endorsed experiencing flare-ups of the left knee, precipitated by prolonged sitting and then standing as well as excessive walking. The Veteran further reported that when his right knee flares up, his left knee will also flare up. The Veteran's left knee flare-ups are relieved by Ibuprofen, muscle relaxer, ice, and massage. Range of motion (ROM) testing revealed normal ROM, with pain noted on flexion. Following the physical examination, the VA examiner opined that the Veteran's left knee disability is less likely than not incurred in or caused by his service. In support of this opinion, the VA examiner reasoned that there are no medical records to show that the Veteran had left knee pain, condition, or injury during service. The VA examiner further opined that the Veteran's left knee disability is less likely than not proximately due to or the result of the Veteran's service-connected right knee disability. In support of this opinion, the VA examiner reasoned that there are no medical records to show that there is a left knee condition, pain, or injury. The VA examiner noted that the Veteran was seen in February 2019 for right knee pain which had gotten worse over the past three to four years and at the time there were no complaints of left knee pain as a result of the right knee. Finally, the VA examiner opined that the Veteran's left knee disability is less likely than not aggravated beyond its natural progression by his service-connected right knee. In support of this opinion, the VA examiner reasoned that there are no medical records to show when he started to develop left knee pain or any etiology of left knee pain. Addendum opinions were provided by the same physician in December 2020. The VA examiner again opined that the Veteran's left knee disability is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this opinion, the VA examiner reasoned that there is no evidence that the Veteran had a left knee condition in service. Furthermore, the Veteran's January 2011 VA examination was negative for left knee pain, condition, or injury. The VA examiner noted that, on examination, there was some tenderness in the left knee; however, there was no other findings related to this and therefore it is less likely than not that the current left knee condition was incurred in or caused by service. The VA examiner further opined that the Veteran's left knee disability is less likely than not proximately due to or the result of the Veteran's service-connected right knee disability. In support of this opinion, the VA examiner reasoned that the Veteran is a current border patrol officer, requiring prolonged standing. The VA examiner cited to medical records showing that the Veteran runs at least twice a week for about a mile. Thus, because the Veteran still runs and stands for prolonged periods of time, it is less likely than not that the Veteran developed a left knee disability secondary to his service-connected right knee disability. Finally, the VA examiner opined that the Veteran's left knee disability is less likely than not aggravated beyond its natural progression by his service-connected right knee disability. The VA examiner was unable to establish a baseline severity for the Veteran's left knee, stating that prior to the Veteran's October 2020 VA examination, there are no medical records showing left knee patellofemoral pain syndrome. However, the VA examiner reasoned that the Veteran runs twice a week and lives in a two-story house with a bathroom and bedroom located upstairs. Thus, it is less likely than not that the Veteran's left knee was aggravated beyond its natural progression by his service-connected right knee. The Board concludes the preponderance of the evidence is against finding that the Veteran's left knee disability is proximately due to or the result of, or aggravated by service-connected right knee disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). The medical evidence of record does not establish that the Veteran's service-connected right knee disability either caused or aggravated his left knee disability. Other than the Veteran's assertions, there is no medical evidence that indicates that his left knee disability is related to his service-connected right knee disability. The Board finds that while the Veteran may be competent to speak to such physical manifestations as his left knee pain, he is not competent to speak to the etiology of such a condition because that involves complex medical question, and the Veteran has not been shown to have the required medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence is competent when it does not require the proponent to have specialized education, training, or experience. 38 C.F.R. § 3.159 (a)(2) (2020); Bruce v. West, 11 Vet. App. 405 (1998) (one not a medical expert is nevertheless competent to offer evidence of his symptoms in support of a claim for an increased disability evaluation); Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, his statements alone are insufficient to establish that his left knee disability is secondary to his service-connected right knee disability. The Board gives great probative weight to the December 2020 VA examiner. As the physician explained the reasons for their conclusions based on an accurate characterization of the evidence of record, the opinions, addressing both causation and aggravation, are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is competent and probative medical evidence with substantial and adequate rationale explaining that the Veteran's left knee disability is not related to his service, to include as secondary to his service-connected right knee disability. The Board also finds that the Veteran is not entitled to service connection on a direct basis for his left knee disability. Regarding whether there was an in-service event or injury, the Veteran's STRs shows no reports of left knee pain and examinations of the left knee were all normal. See December 2005, September 2008, and December 2010, January 2011 STRs. Furthermore, the December 2020 VA examiner opined that the Veteran's left knee disability is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. (Continued on the next page) Finally, there is no evidence showing that the Veteran's left knee disability manifested within one year of his separation from service or that he had continuity of symptomatology since service. The December 2020 VA examiner noted a 2020 diagnosis, nine years post-service. As such, there is no evidence of record to warrant granting service connection for a left knee disability on a presumptive basis. 38 C.F.R. § 3.309. Thus, for all the foregoing reasons, the claims for service connection for left knee disability, to include as secondary to the service-connected right knee disability, is denied. In reaching the decision to deny this claim, the Board has considered the applicability of the "benefit-of-the-doubt" rule, but it is not for application because the most probative evidence of record is against the claim. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. C. Slaughter, Associate 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.