Citation Nr: 21029433 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-36 810 DATE: May 13, 2021 ORDER Entitlement to service connection for right knee disorder is denied. Entitlement to service connection for left knee disorder is denied. FINDING OF FACT Right and left knee disorders are not shown to be causally or etiologically related to any disease, injury, or incident during service and arthritis did not manifest to a compensable degree within one year of service discharge. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active duty service from August 1954 to June 1958, November 1961 to August 1962, and February 1991 to June 1991, with additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In his October 2015 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. In March 2017, the Veteran requested that his hearing be cancelled and that the Board accept written argument from his representative in lieu of his testimony. Therefore, the Veteran's hearing request is considered withdrawn. 38 C.F.R. § 20.704(e). In June 2017, the Board remanded the case for additional development. In May 2019, the Board denied service connection for right and left knee disorders. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Remand (JMR), which vacated and remanded the Board's May 2019 decision. In January 2021, the Board again remanded the case for additional development and it now returns for further appellate review. In compliance with the Board remand, copies of medical evidence from the 325th Medical Group, Tyndall Air Force Base from April 20, 1998 to July 29, 1998 were requested and received, to include the bilateral knee X-rays dated July 29, 1998. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, to include arthritis, 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that 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, 3940 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). "When there is an approximate balance of positive and negative evidence regarding any 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. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. Initially, the Board notes that in July 2017, the RO attempted to obtain the Veteran's service treatment records (STRs) from the National Personnel Records Center (NPRC). However, the RO was notified that STRs from the Veteran's final period of active duty from February 1991 to June 1991 could not be located. The Veteran was notified of such in letters dated July 2018 and October 2018. A letter was also sent to the Veteran in January 2021 to send all treatment records, hospital summaries, findings and/or diagnoses during July 1, 1998 to August 31, 1998. This included obtaining, reviewing, and considering medical evidence from the Biloxi VAMC for the period from May 4, 2011 to October 21, 2020. The Court has held that in cases where records in the custody of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim has been undertaken with this heightened duty in mind. 1. Entitlement to service connection for right knee disorder is denied. 2. Entitlement to service connection for left knee disorder is denied. The Veteran contends that he has a bilateral knee disorder that had inception during and/or is related to his active duty service, to include as a result of enduring long marches and intensive physical training during service. He further reports that his knee pain had its onset in service. The Veteran's available STRs include a January 1956 report in which the Veteran complained of right knee pain as a result of sitting at his desk. In June 1958, the Veteran reported moderate bilateral knee pain after standing for long periods. As such, the first element for service connection, in-service injury, has been met. The Veteran's Reserve service records include a December 1965 re-enlistment examination, which shows complaints of occasional knee pain, as well as a normal clinal evaluation of the lower extremities. In July 1979, the Veteran reported painful knee joints, for which he had sought no treatment. An October 1981 report of medical examination also shows a normal clinical examination of the lower extremities, with the examiner's corresponding notation of "aching discomfort." In the notes section, the examiner indicated, "Arthritis (probably osteoarthritis);" however, the examiner did not reference the affected joint. A July 1985 report of medical examination notes "swollen and painful joints refer to arthritis in knees bilaterally." In March 1989, the examiner noted the Veteran had a history of arthritis in both knees since 1981. The Veteran had sought an orthopedic specialist, but received "no real treatment." He occasionally took aspirin for pain, which worked "with good results." Post-service treatment records show a current diagnosis for osteoarthritis of the left and right knees many years after service separation. See e.g., July 2006, July 2009, and April 2010 VA and Private Medical Treatment Records and November 2012 and August 2017 VA examinations. In April 2010, the Veteran's private physician noted that the Veteran had been complaining of knee pain for 25 years. In connection with this claim, the Veteran was afforded a VA medical examination in November 2012. After reviewing the record and examining the Veteran, the examiner opined that the Veteran's bilateral knee disorder was less likely than not related to his military service. In the June 2017 remand, the Board found this opinion inadequate for appellate review due to an inadequate and flawed rationale. Thus, the Board affords this opinion little probative value. Pursuant to the June 2017 remand, an addendum opinion was obtained in August 2017. After reviewing the record, including the Veteran's lay statements, the examiner opined that (A) the Veteran's bilateral knee osteoarthritis is less likely than not related to his military service, to include his reports of long marches and intensive physical training therein; (B) arthritis did not manifest within one year of his separation from service in June 1958, August 1962, or June 1991; and (C) it is less likely than not that his credible reports of constant knee pain since his initial separation from service constituted an early manifestation of any subsequent arthritis diagnosis. In support of such opinions, the examiner noted that the Veteran's STRs for active duty are silent for bilateral knee osteoarthritis and the Veteran's episodic in-service and post-service complaints of bilateral knee pain with swollen, painful joints are unlikely to be caused by arthritis without supporting radiologic imaging evidence. In this regard, the examiner noted July 1998 bilateral knee x-rays were normal. Additionally, the examiner noted that the July 2006 x-ray showed mild arthritis, diagnosed 15 years after Reserve service, when the Veteran was 70 years old, and such was consistent with natural age. Finally, the examiner observed that x-rays taken in April 2010 showed tricompartmental osteoarthritis bilaterally consistent with natural age-related progression. In offering her opinions, the examiner indicated that she carefully considered the full record, to include the Veteran's lay statements, and available medical record documentation, including the Veteran's January 1956 report of right knee pain; June 1958 report of swollen joints and moderate knee pain after prolonged standing; December 1965 report of occasional knee pain; July 1979 report of painful joints and arthritis; the October 1981 medical examination report noting "arthritis" followed by what appears to say "probably osteoarthritis...for years..."; July 1985 report of swollen, painful joints and arthritis; March 1989 report of arthritis since 1981; and November 1989 report of bilateral painful knees. After reviewing the entire record, the Board finds that the preponderance of the evidence is against the claim of service connection for right and left knee disorders. As noted, the August 2017 examiner concluded, after reviewing the record and considering the Veteran's medical history, that the current right and left knee disorders were not incurred in or otherwise causally related to service, and that bilateral knee arthritis did not manifest within one year from the Veteran's periods of active duty service in June 1958, August 1962, or June 1991. The Board assigns this opinion great probative weight as it was rendered by a medical professional with the expertise necessary to opine on the question at issue. Moreover, the clinician based her opinion on a review of the Veteran's medical history and the applicable medical literature and gave considered rationales for her respective conclusions. Although the most probative evidence shows that bilateral knee arthritis was not present during active duty or manifest to a compensable degree within one year of separation, as set forth above, service connection may still be awarded for a disease diagnosed after discharge when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. Additionally, while the Veteran reported bilateral knee pain in 1956 and 1958 during active duty service, and has alleged a continuity of symptomatology since such time, the August 2017 VA examiner considered such reports, but found that it is less likely than not that such reports of constant knee pain since his initial separation from service constituted an early manifestation of any subsequent arthritis diagnosis. In this regard, whether the symptoms the Veteran experienced during or after service are in any way related to his currently diagnosed bilateral knee arthritis is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Consequently, presumptive service connection for arthritis of the bilateral knees, to include on the basis of a continuity of symptomatology, is not warranted. The Board has reviewed the positive nexus opinion submitted by the Veteran in November 2020. The Veteran provided a nearly illegible statement, which was purportedly provided by his treating physician of nearly 50 years, linking the onset of his current bilateral knee arthritis to service. The opinion rendered provided no explanation as to why bilateral knee arthritis had onset or was causally related to service. Upon review, the Board finds this opinion is inadequate to grant the benefits sought as the opinion is conclusory, and the Board affords it little probative weight. The Board has carefully considered the Veteran's contentions but finds that he is not competent to provide an opinion on the etiology of his right and left knee disorders because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have had medical training or skills. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Questions of competency notwithstanding, the Board assigns more probative weight to the findings of the August 2017 VA examiner given her clinical expertise and the rationale she provided. (Continued on the next page) For the foregoing reasons and bases, the Board concludes that the preponderance of the evidence is against the claim of service connection for right and left knee disorders. Under these circumstances, the benefit-of-the-doubt rule does not apply. A. J. Spector Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.