Citation Nr: 21030513 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 11-30 769 DATE: May 19, 2021 ORDER Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities, is denied. Entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities, is denied. FINDINGS OF FACT 1. The Veteran's left knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, disease, or service-connected disability. 2. The Veteran's right knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, disease, or service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from November 1961 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied the Veteran's claims of entitlement to service connection for left and right knee disabilities. The Veteran timely appealed the decision. Most recently in January 2021, the Board remanded the issues for additional evidentiary development. The Board finds that the RO has complied with the instructions in the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Since the issuance of the Supplemental Statement of the Case (SSOC) in March 2021, more VA-generated treatment records have been associated with the claims file, including a May 2021 audiological VA examination report. However, these records are not relevant to the Veteran's claims. Therefore, this appeal may also be adjudicated without a remand for original RO consideration of such records without prejudice to the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the veteran are to be avoided); see also 38 C.F.R. § 19.31 (b)(1). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, certain diseases, such as degenerative joint disease (arthritis) are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 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; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities, is denied. 2. Entitlement to service connection for a right knee disability, to include as secondary to his service-connected disabilities, is denied. The Veteran maintains entitlement to service connection for a bilateral knee disability which he believes manifested during his active duty service. He avers that he injured his knees during service while riding on the back of a fire truck during fire protection training. He reports that he jumped off the back of the truck and landed on his left knee which caused the current disability. Alternatively, he maintains that his knee disabilities developed while playing football in service, or that the disabilities are secondary to his service-connected low back disability and/or left lower extremity radiculopathy. Turning to the evidence of record, the Veteran's service enlistment examination report documents normal lower extremities and a normal musculoskeletal system. His service treatment records do not contain complaint, treatment, or diagnosis of a right knee disability. Regarding his left knee, in April 1963, the Veteran complained of a painful, weak left knee. He reported that he injured his left knee while in high school (banged it twice) but never had medical treatment for it. He had felt okay until the previous day when he noticed pain in the anterior and posterior areas of the knee and since then he felt like his knee might "go out on him." His knee had not actually given way at that point. The Veteran denied any trauma to the knee. The Veteran was diagnosed with a probable left knee strain. He was treated with heat, medication, and assigned one week of light duty. He was instructed to return as needed for follow-up. The Veteran continued to serve through November 1965, with no additional complaint, treatment, or diagnosis of a left knee disability. Upon separation, the Veteran's lower extremities and musculoskeletal system were again assessed as normal. Post-service treatment records document complaints of bilateral knee pain in August 2007. He reported that his knee discomfort had been increasing over the past month. He denied any known injury or history or previous knee surgery/injury. He stated that he used Advil occasionally with good results. He reported that he saw a chiropractor for his low back pain who indicated that his back may influence his knees. The examiner noted visible varicose veins on the Veteran's lower legs and encouraged the Veteran to elevate his legs as able and to use over-the-counter NSAIDs. In September 2007, the Veteran underwent diagnostic testing of his knees. His noted clinical history was right knee pain and a degenerative meniscal tear on film from another VA facility. The results of the diagnostic tests were essentially unremarkable. The right knee joint was normal in appearance. One view demonstrated a small lobular opacity projecting over the joint space laterally on the left, but this was not visualized on the remaining views and was thought to represent a superimposed density. In December 2007, the Veteran reported 6 to 8 months of right knee pain. He denied remembering any particular traumatic event, although he said that he may have taken a step down some stairs and twinged it. An MRI showed what appeared to be a degenerative tear of the posterolateral meniscus. VA treatment records through 2009 contain continued treatment for bilateral knee pain which the Veteran described as more intense on the right than the left. The Veteran underwent a VA examination in April 2010 specifically for his left knee. He reported that he injured his left knee while working in the fire service and while playing football on active duty. He denied ever being casted or having surgeries. He stated that he had mild, intermittent knee pain that increased with activity. A clinical evaluation was performed, including diagnostic testing. Diagnostic testing revealed mild degenerative change in the Veteran's left knee and subluxation of the patella laterally, suggestive of patellar retinacular tear. Range of motion testing was grossly normal in the Veteran's right knee. The examiner concluded that the Veteran's left knee disability was not caused by or the result of his service. He reasoned that that the Veteran injured his left knee while in service but did not seek medical attention after discharge until after 2000. Given the gap in treatment records, the examiner found that there was no indication that his knee injury in service resulted in a chronic left knee condition. In December 2015, the Veteran attended another VA examination. At that time, he was diagnosed with patellofemoral pain syndrome. The examiner concluded that the Veteran's then-diagnosed patellofemoral pain syndrome was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She acknowledged the documented in-service left knee strain but noted that there was no specific documentation of a fall as reported by the Veteran. The examiner observed that the X-ray findings were consistent with degenerative disease (joint space narrowing) and a remote trauma or fracture to the areathe reported fall (tibial tubercle). She noted that the Veteran's discharge physical did not report knee pain or problems; there was a lack of documentation showing chronicity from 1963 to 2008. In June 2018, an addendum medical opinion was proffered by the December 2015 examiner to clarify her findings. She had determined that there was no documentation or evidence to support the Veteran's reports of a fall but had also noted that the tibial tubercle seen on X-ray was evidence of a remote trauma, that could have been consistent with a fall. In the addendum, the examiner again noted the in-service knee strain. She observed that the Veteran had denied any trauma to his knee at the time the strain was diagnosed. However, she noted that he had reported injuries to his left knee while in high school. She found it more likely that the tibial tubercle irregularity and degenerative disease were more likely related to that remote trauma in high school. The examiner also noted that there was no medical evidence to support chronicity related to service from 1963 to 2008, 43 years post discharge. She found that, at the age of 73, the patellofemoral pain syndrome was a bilateral finding and was likely a natural, age-related process. As the June 2018 VA examiner raised the theory that the Veteran had a left knee disability that preexisted service (knee trauma from high school), another addendum opinion was obtained in September 2019. The examiner found that the Veteran did not have a left knee disability that clearly and unmistakably preexisted service. She noted that there was no subjective or objective evidence of a knee disability on enlistment. The first mention of knee pain was in 1963, over two years into the Veteran's military service. The examiner then found that the Veteran's left knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She reasoned that the Veteran had mild arthritis of the left knee that was consistent with age-related changes. She noted the in-service finding of left knee pain and an incidental finding of a slightly prominent tibial tubercle that was not tender. The examiner determined that this was not indicative of a disability or disease process, nor did it result in a current one, to include the Veteran's osteoarthritis. While the Veteran testified that the knot was tender during service, service treatment records reflect the opposite and there was no tenderness or knee disability noted on his separation examination report. She observed that the first mention of knee problems was not until 2007 with no reference to military service. The examiner considered the Veteran's report of continuity of symptoms since service but found it noteworthy that he did not mention such continuity to any providers that treated him for his knee pain. She also concluded that the right knee disability was not incurred in or caused by the claimed in-service injury, event, or illness. Specifically concerning the right knee, the examiner noted the Veteran's diagnosis of osteoarthritis/degenerative joint disease of the right knee and evidence of a degenerative meniscal tear (myxoid degeneration shown on MRI) which were consistent with age-related changes in his knees and unrelated to military service. In February 2021, an addendum opinion was proffered concerning whether the Veteran's bilateral knee disability was proximately due to or the result of his service-connected disabilities. The examiner determined that it was not. She reasoned that the Veteran had mild arthritis of the left knee which was consistent with age-related changes, and the meniscal tear of the right knee without trauma was consistent with age-related degeneration. Further, she observed that a review of the Veteran's treatment records did not reveal any evidence that the service-connected lumbar spine disability with radiculopathy chronically impacted his stance or gait. The Veteran's service-connected hearing loss and tinnitus were not determined to play any role in his knee pathologies. She also noted that the Veteran's bilateral knee disability was not aggravated beyond its natural progression by any service-connected disabilities, as the Veteran continued to have mild, age-related changes in his knees with no functional limitations. As such, there was no evidence of aggravation. Based on a careful review of all the subjective and clinical evidence of record, the Board finds that the preponderance of the evidence weighs against a finding that service connection for a left knee disability and right knee disability is warranted. As an initial matter, the Veteran has current left knee and right knee disabilities. He has been variously diagnosed with degenerative joint disease (arthritis), degenerative meniscal tear, subluxation of the patella laterally, suggestive of patellar retinacular tear, and patellofemoral pain syndrome. Further, an April 1963 service treatment record documents a left knee strain and tibial tubercle, and the Board finds the Veteran's descriptions of in-service falls during fire protection training credible, as they are consistent with the circumstances of his service as a fire protection specialist. It also finds the Veteran competent to describe playing sports while on active duty. Thus, the second element for service connection has been met. Regarding whether the Veteran's left knee disability is related to the documented in-service knee injury, several medical opinions have been provided regarding whether such an etiological relationship exists. The first two, from April 2010 and December 2015, are of low probative value as they are predicated entirely on the large gap between service and the first clinical records documenting post-service treatment, and do not consider the Veteran's statements of continuity of left knee pain since separation. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). The opinion proffered in June 2018 was effectively incomplete, as it raised the theory of a preexisting left knee disability but did not address it. The Board finds that the September 2019 medical opinion is of the greatest probative value concerning the etiology of the Veteran's left knee disability. The examiner reviewed the entire claims file prior to determining that the Veteran did not have a left knee disability that clearly and unmistakably preexisted service and that the current left knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board finds that this medical opinion is adequate and is highly probative on the question of etiology, as it was provided by a medical professional who reviewed the Veteran's medical history and treatment records and supported her conclusions with a detailed rationale, including a determination that the Veteran's disability was more likely related to his age due to its nature. Nieves-Rodriguez v. Peake, No. 06-3012 (Vet. App. Dec. 1, 2008). With respect to whether the Veteran's right knee disability is related to any of the aforementioned in-service activities, several medical opinions have also been provided regarding whether such an etiological relationship exists. The first, from December 2015, is of low probative value as it is predicated entirely on the large gap between service and the first clinical records documenting post-service treatment, and do not consider the Veteran's statements of continuity of right knee pain since separation. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006). The opinions proffered in June 2018 and September 2019 are of the greatest probative value concerning the etiology of the Veteran's right knee disability. The examiner reviewed the entire claims file prior to determining that the Veteran's right knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board finds that these medical opinions are adequate and highly probative on the question of etiology, as they were provided by a medical professional who reviewed the Veteran's medical history and treatment records and supported her conclusions with a detailed rationale, including the consistent determination that the Veteran's disability was more likely related to his age due to its nature. Nieves-Rodriguez v. Peake, No. 06-3012 (Vet. App. Dec. 1, 2008). Concerning whether the Veteran's left knee disability and right knee disability are secondary to a service-connected disability, the Board finds that the February 2021 opinion is probative, as it too was provided by a medical professional who reviewed the Veteran's medical history and treatment records and supported her conclusions with a detailed rationale. The probative evidence of record weighs against a finding that the Veteran's left knee and right knee disabilities are secondary to any of his service-connected disabilities, including his lumbar spine disability and attendant radiculopathy, bilateral hearing loss, and tinnitus. The Board notes that certain chronic diseases, such as arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. However, in this case there is no competent, credible medical evidence detailing the diagnosis of a left knee or right knee disability, to include arthritis, within one year of the Veteran's discharge from service to warrant a grant of service connection on a presumptive basis. The Board has also considered the applicability of continuity of symptomatology. Service connection may be established by showing continuity of symptoms since service. 38 C.F.R. § 3.303 (a). Continuity of symptomatology is established if a claimant demonstrates: (1) a condition noted during service; (2) evidence of post-service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptoms. While a left knee strain was noted in the Veteran's service treatment records, the Board finds that the competent, credible evidence of record weighs against a finding of post-service continuity of such symptoms. The Board acknowledges the Veteran's statements regarding continued to experience knee pain since separation that he has made in conjunction with his compensation claim but attaches greater probative value to the statements (or lack thereof) made to providers when seeking treatment for his knee disability. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). As such, the current contentions made in the pursuit of benefits are not persuasive. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). Regarding the Veteran's right knee disability, given that it was not noted during service, continuity of symptomatology has also not been established for the right knee disability. Consideration has been given to the Veteran's contentions that his current bilateral knee disability is related to his service. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses and causation findings based on medical knowledge of the musculoskeletal system. See Jandreau v. Nicholson, 492 F.3 s 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is certainly competent to report the labor and activities that he engaged in during service and pain he experienced during that time, he is not competent to link that to a diagnosis or etiology. His assertions are therefore not competent evidence of a medical nexus. In sum, the benefit-of-the-doubt rule does not apply, and the service connection claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.