Citation Nr: 21031680 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 12-00 146 DATE: May 24, 2021 ORDER Entitlement to service connection for right knee disability is denied. FINDING OF FACT The Veteran did not have a right knee disability that was related to military service. CONCLUSION OF LAW The criteria for service connection for right knee disability 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 FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1966 to November 1968. The Veteran died in August 2014. The Appellant is the Veteran's surviving child, and has been substituted as the claimant. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Roanoke, Virginia Regional Office (RO) of the United States Department of Veterans Affairs. This issue was previously before the Board, most recently in September 2020 at which time it was remanded for additional development. During the pendency of the appeal, in a March 2021 rating decision, entitlement to service connection for a left knee disability was granted, constituting a full grant of the benefit sought with regard to that joint, and the issue is no longer on appeal. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in November 2009. The RO associated the Veteran's service and VA private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duet to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also 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). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis is a listed condition. However, as there is no evidence, argument, or allegation of the currently claimed disability within the first post-service year, the presumption is not applicable here. In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran asserts that he has a right knee disability related to his time in service, and was due the marching required of him. The Veteran's service treatment records (STRs) are negative for treatment and/or a diagnosis of a right knee injury or disability in service. A pre-existing, childhood left knee injury was noted VA treatment records reflect the Veteran's history of a right knee replacement in April 2008 and arthritis of the right knee. Private treatment records dated October 2006 indicate the Veteran was seen for follow up of a "comp injury, fractured tibia with degenerative arthritis of his knee" and that he took an "occasional narcotic for pain control of his right knee secondary to the trauma he had." "Comp" in this instance refers to Workers' Compensation; the Veteran had been injured at work. The Veteran underwent a VA joints examination in June 2010. The Veteran denied experiencing any acute knee injury in service. He reported having bilateral knee pains in service for which he was seen and given pain medications; he relates it to marching in service. He was diagnosed with degenerative joint disease of both knees in approximately 1994. He eventually underwent bilateral total knee replacements in 2006 and 2009. Subjective complaints included constant bilateral knee pain worse on activities. Symptoms included bilateral knee pain and stiffness, redness, swelling and warmth. Based on a review of the evidence of record and examination, the VA examiner determined that it was less likely than not that the Veteran's bilateral knee replacement was related to knee complaints in service. The VA examiner noted there were no notes of any right knee condition, no documentation of ongoing symptoms or findings total absence of information; the VA examiner determined that "with a complete vacuum of information for almost 40 years after leaving service ongoing knee condition or [symptoms] cannot be verified or ascertained and therefore currently there is insufficient evidence." VA treatment records from 2013 to 2014 continue to reflect the Veteran's history of arthritis of the knees. In June 2020 a VA opinion was requested as to the etiology of the Veteran's knee disabilities. The VA examiner reviewed the June 2010 VA examination and the Veteran's medical records. The VA examiner determined it was less likely than not that the Veteran's bilateral knee condition was incurred in or caused by service. The VA examiner acknowledged the findings of the previous VA examiner which noted the Veteran was diagnosed with bilateral degenerative joint disease of the knees in 1994 which was almost 20 years after his discharge from service, and a documented lack of continuation of care since discharge from service. The VA examiner stated that he agreed with the findings of the June 2010 VA examiner. The September 2020 Board remand found the above examinations and opinions inadequate, as they were based on the lack of documentary evidence of continued care, and as such the rationales offered did not properly account for the competent lay reports of continued symptomatology. In March 2021, in response to the Board remand, an opinion was requested as to whether it was at least as likely as not that the Veteran's right knee disability is causally related to his active service, to include as due to his reports of frequent marching. The VA examiner determined that it is not at least as likely as not that the Veteran's right knee disability was causally related to his active service, to include as due to his reports of frequent marching. The VA examiner determined that, after reviewing the Veteran's medical records, the Veteran's complaints of right knee pain in service due to marching was an acute and self-limited condition and was treated properly in service. Although the Veteran expressed his belief in a connection between his time in service and his claimed right knee disability, he lacks the knowledge and training required to render a nexus opinion on a cause and effect relationship unobservable to a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Further, he has simply asserted his opinions, without a clear rationale or support; no probative value is given his statements beyond their worth as physical observations. Moreover, no medical professional has opined that the Veteran's right knee disability was related to service in any way. While the recent examiner did not directly address complaints of continued pain since service, the Board finds such omission harmless, as the record reflects only the single report at the June 2010 examination, and all other complaints relate to the post-service work injury. In other words, there is no continuity of treatment or complaint since service for the examiner to consider. The evidence in fact supports the recent finding of acute complaints in service which were self-limiting and appropriately treated prior to resolution. Direct service connection for a right knee disability must be denied because the competent evidence of record shows that this disability was not caused nor aggravated by service; nor does it show that the Veteran experienced symptoms of this condition that continued from service until the present. Rather, the evidence shows that the Veteran first sought treatment for his right knee pain approximately 38 years after his discharge from service. The Board notes that the Veteran and Appellant have not alleged the right knee disability is due to or secondary to the service-connected left knee, to include aggravation. Further, there are no findings or evidence in the record raising the reasonable possibility of such. The medical evidence attributes the right knee problems entirely to post-service traumas. Service connection for the Veteran's right knee disability is not warranted. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, at 1 Vet. App. 49 (1990). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger 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.