Citation Nr: 21030637 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-44 361 DATE: May 19, 2021 ORDER Entitlement to service connection for a left knee condition is denied. Entitlement to service connection for a right knee condition is denied. FINDINGS OF FACT The preponderance of the evidence is against finding that a left and right knee condition began during active service, or is otherwise related to an in-service injury, to include an in-service motor vehicle accident. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee condition are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right knee condition are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1992 to January 1995. He received a general discharge (under honorable conditions). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In July 2020, the Board remanded the two issues on appeal for further development. There has been substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for a skin, bilateral foot condition, back, and neck conditions were also remanded in July 2020. In a December 2020 rating decision, the RO granted service connection for keloids, bilateral pes planus, degenerative arthritis of the lumbar spine and cervical strain. As this constitutes a full grant of benefits, these issues are no longer on appeal. Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). 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). 1. Entitlement to service connection for a left knee condition is denied. 2. Entitlement to service connection for a right knee condition is denied. The Veteran contends that he has a bilateral knee condition, to include knee strain that developed in-service. Specifically, during his February 2020 Board hearing, the Veteran asserts that his bilateral knee condition stems from an in-service motor vehicle accident (MVA). As an initial matter, the Board notes that a complete set of the Veteran's service treatment records are unavailable despite efforts to obtain them. In June 2011 a formal finding regarding the unavailability of his service treatment records was issued, detailing attempts made to obtain records and notification to the Veteran of said missing records. During his February 2020 videoconference hearing before the undersigned, the Veteran and his representative indicated that they had in their possession at the hearing a military record - which they identified as 'an abbreviated medical record' from Portsmouth Naval Hospital- that showed he was admitted to Portsmouth Naval Hospital in 1993 for observation following a vehicle accident. His representative stated, "And then he is citing a military record that is identified as the abbreviation medical record for military purpose is a 539-106, dated February 22, 1993." See Hearing Transcript, page 7. This Portsmouth Naval Hospital record referenced during the Board hearing is not contained in the Veteran's file. As indicated in the hearing transcript, the undersigned VLJ agreed to hold the record open for 90 days from the date of the hearing, allowing the Veteran time to submit the Portsmouth Naval Hospital treatment record for the Board's review, as well as additional evidence. The Veteran did not submit this record during the 90-day period. In the Board's July 2020 remand, the Veteran was again asked to submit the 1993 Portsmouth Naval Hospital record for the Board's review; the RO was also asked to obtain this record. The Veteran has not submitted the record in question. In compliance with the Board's remand directives, the RO issued correspondence to the Veteran in July 2020 and requested that he send in any relevant evidence. He did not respond to this letter. The RO also requested relevant records from the Records Management Center (RMC) in July 2020 and in August 2020. In September 2020 and in October 2020, the RO sent a letter to the Naval Medical Center (NMC) of Portsmouth requesting the Veteran's records from February 1, 1993 to September 16, 2020. In letters received in September 2020 and in October 2020, NMC Portsmouth replied to the RO's inquiring noting, there are no outpatient or inpatient records located at that medical facility. In November 2020, the RMC responded that all efforts to locate the Veteran's service treatment records were unsuccessful. In a November 2020 letter, the RO notified the Veteran of all efforts made to obtain a complete set of his service treatment records and asked him to submit any relevant documents in his possession and any other relevant evidence or information he thought would support his claim. To date, the Veteran has not provided a copy of the 1993 emergency record from the Portsmouth Naval Hospital. All efforts to locate additional service treatment records, and specifically the reported 1993 emergency record from the Portsmouth Naval Hospital, have been unsuccessful and further attempts to locate the record would be futile. The duty to assist is a two-way street, and the Veteran's lack of cooperation in obtaining relevant evidence has frustrated VA's attempt to assist him in developing his claim on appeal. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The question for the Board is whether the Veteran has a current knee disability that at least as likely as not began during service or is related to an in-service injury, event, or disease, to include a reported February 1993 (MVA). The Board has undertaken the analysis below keeping in mind the heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board concludes that, while the Veteran has a current diagnosis of bilateral knee strain, and while he reports that he experienced an in-service injury/event involving his knees, the preponderance of the evidence weighs against finding that his current bilateral knee conditions are related to service. The available service treatment records do not reflect treatment or complaints related to knee pain or, a diagnosis of a chronic knee condition. These records also do not reflect the occurrence of a MVA in service. As discussed, the Veteran asserts that in his possession is a service treatment record showing that he was hospitalized or otherwise treated for complaints and/or injuries involving his knees due to a 1993 car accident, but he has inexplicably refrained from providing a copy of this record to VA despite numerous requests. Post-service VA treatment records from 2010 to 2019 reflect complaints and treatment for various health issues, but they are silent for complaints or clinical treatment or diagnosis of a knee condition. In August 2020, the Veteran was seen by a VA physician with complaint of left knee pain that reportedly had been "on and off for years." The physician noted that an August 2020 x-ray showed changes of arthritis, and indicated "[t]his can explain [the Veteran's] pain." The Veteran was afforded a VA examination in November 2020 to determine the nature and etiology of his bilateral knee condition. The examiner indicated that the Veteran's VA e-folder and other evidence was reviewed. The examiner identified the other evidence as "Emergency department Portsmouth; February 22, 1993: Diagnosis, MVA." The examiner reported the Veteran's diagnosis of bilateral knee strain, and the Veteran's report of onset. The Veteran shared that he injured his knees during a MVA in 1993 and that his knees worsened as he continued to work on a steel surface in the ship. The examiner provided a current diagnosis of bilateral knee strain. The examiner also noted the November 2020 bilateral knee x-rays were negative for arthritis. The VA examiner further opined that the Veteran's bilateral knee strain was less likely than not incurred in or caused by the claimed in-service injury/event including the 1993 MVA. The examiner explained that a review of service treatment records and notes from the Portsmouth Naval Hospital, dated February 22, 1993 revealed a MVA with complaints of back and neck pain. The assessment revealed normal lower extremities with no pain or deformity. The examiner also explained that evidence of service treatment records failed to show a bilateral knee disability that became manifest as a result of a service related MVA, an event or any other injury. Additionally, the current bilateral knee x-ray results are unremarkable. Thus, the examiner found it is less likely than not that the Veteran's bilateral knee strain is service-related. Based on the lack of credible evidence of an in-service event or injury, lack of competent and credible evidence of a chronic disease such as arthritis within a year of service discharge, and lack of competent medical evidence linking the current knee conditions to service, the Board is unable to grant service connection. The VA examiner's unfavorable nexus opinion is probative because it provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no favorable and equally competent medical opinion to the contrary. It is significant that even after reviewing what was purported to be a contemporaneous record of the in-service MVA, the examiner still determined that there is no causal relationship between the current knee conditions and military service. The Veteran believes his bilateral knee strain is related to an in-service injury, the 1993 MVA. While he is competent to report having experienced symptoms of pain, he is not competent to provide a diagnosis in this case or a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner's opinion. Further, the Board does not find the Veteran's report of a knee injury during service, or of knee pain since service, credible. Credibility is a factual determination as to whether a witness is worthy of belief. Generally, the credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curium, 78 F.3d 604 (Fed. Cir. 1996) (table). To date, the Veteran has not provided a copy of the 1993 emergency record from the Portsmouth Naval Hospital. The Veteran's lack of cooperation in obtaining relevant evidence has frustrated VA's attempt to obtain relevant evidence about the reported in-service injury and casts doubt on the authenticity of such document. Further, as mentioned earlier, the post-service records reflect that the Veteran did not complain or seek treatment for a knee condition specifically, until rather recently. A November 2010 VA general medicine note indicates the Veteran was there to establish care. Several health concerns are reported; however, notably missing is a complaint of or treatment for the Veteran's knees. Specifically, the Veteran reported chronic sensitivity to both feet and ankle down yet, mentioned nothing about either his left or right knee. It would seem reasonable to expect that at an appointment to establish care, one would disclose all conditions for which treatment is needed. While the Veteran's back and neck pain are also listed in this treatment note, it is silent for knees. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (explaining that where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the conditions or symptoms did not exist). Finally, to the extent that an August 2020 VA x-ray of the Veteran's knees showed changes of arthritis, there is no competent or credible evidence showing onset of a chronic disease such as arthritis within one year of service discharge. The Board maintains that the Veteran is not credible regarding onset of knee pain in service with a continuity of knee pain symptomatology following discharge. The Veteran's report of ongoing bilateral knee pain since his discharge from service is not credible as it is contradicted by other evidence of record. Hence, service connection for bilateral knee arthritis cannot be presumed. In sum, the preponderance of the evidence is against the claim and the benefit of the doubt doctrine is therefore not for application. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). (Continued on the next page) The claim of service connection for a left and right knee condition is denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Telamour, 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.