Citation Nr: 21031717 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-25 645 DATE: May 24, 2021 ORDER Entitlement to service connection for a left knee disability is denied. FINDING OF FACT A left knee disability was not shown in service or for many years thereafter, and the most probative evidence of record indicates that the Veteran's current left knee disability is not related to service. CONCLUSION OF LAW The criteria for establishing service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously remanded by the Board in September 2019 and December 2020 for further development, which has now been completed. Entitlement to service connection for a left knee disability is denied. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, where a veteran served continuously for 90 days or more during active service, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran contends that his left knee disability is related to service. Specifically, he asserts that during basic training, he was struck with a pole on the left leg that knocked him into the end of a diving board. At the outset, the Board notes that, according to a review of the record, the Veteran was initially found to be physically qualified for military service. However, several weeks into his active duty service, the Veteran sought treatment for a recurrent right inguinal hernia; and upon further physical examination, the Veteran was determined not to be fit for duty. Accordingly, he was medically discharged due to his pre-existing right inguinal hernia. Pursuant to the Board's September 2019 remand, the Veteran was afforded a VA examination to determine the nature and etiology of his left knee condition. In March 2020, a clinician diagnosed the Veteran with, in pertinent part, left knee instability, degenerative arthritis, and "internal derangement." Accordingly, the first element of service connection, a current disability, is met. Thus, the remaining question in this case becomes whether such conditions are related to service. Upon review of the record, the Board finds that the most probative evidence is against the claim. Concerning the etiology of the left knee disabilities, the March 2020 clinician opined that the disorders were at least as likely as not incurred in or caused by the Veteran's active duty military service. However, the opinion appeared to be based on the apparent misunderstanding that the Veteran was medically discharged due to a left knee disability rather than the recurrent right inguinal hernia. In an effort to clarify the medical opinion, VA obtained an addendum opinion from another examiner. In July 2020, an examiner opined that the Veteran's left knee disabilities were less likely than not incurred in or caused by his active duty military service. In so finding, the examiner reasoned that the absence of medical evidence documenting complaints of, or treatment for, left knee pain or injuries essentially outweighed the Veteran's lay statements. To the extent that the favorable nexus opinion was addressed, the examiner determined that the prior examiner's conclusion was based on the misunderstanding that the Veteran was medically discharged from service because of the claimed left knee injury rather than the pre-existing recurrent right inguinal hernia. In its December 2020 remand, the Board found the reasoning of the July 2020 examiner to be inadequate, insofar as it relied on the absence of medical evidence in the Veteran's claims file to support a finding that his left knee disabilities were not incurred in or caused by his military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (providing, essentially, that an examination was inadequate where the clinician relied on the absence of medical records to provide a negative opinion). Accordingly, pursuant to the December 2020 Board remand, an addendum opinion was obtained in January 2021. In January 2021, the examiner opined that the Veteran's left knee disabilities were less than likely related to service. The examiner stated that there is no evidence of a left knee condition in service and noted that the Veteran was separated for recurrent right inguinal hernia, as noted by the official discharge documents in the record dated November 1970. The examiner stated there was no mention of a left knee injury, or right knee for that matter. Additionally, the Veteran initially filed a claim for the hernia in February 1971. Still, there was no mention of a knee condition. The examiner explained that it is unlikely that a significant knee condition arising in service would not have been reported two months post-service. There is no evidence of care for a knee condition in the currently available records. The first evidence of a knee condition is associated with the March 2020 VA examination. At that time, the examiner incorrectly made an affirmative opinion without evidence to support the claim. As noted, there is no documentation of any event in service or shortly thereafter. The bilateral x-rays in January 2020 show bilateral degenerative joint disease, which was actually worse on the right, the unclaimed knee. Given the Veteran's age, this is consistent with natural degenerative joint disease. The examiner stated that if the degenerative joint disease was due to events in service 50 years ago, the left knee would be far worse than the right. Therefore, the examiner concluded that it is less likely than not that the Veteran's left knee conditions, to include degenerative joint disease, internal derangement and instability are due to or incurred in service. The Board gives great weight to the opinion of January 2021 VA examiner as his opinion was based on an extensive review of the record, including medical and lay evidence of record, and was supported with a reasoned rationale consistent with the evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (the probative value of a medical opinion comes from sound reasoning). There is no medical opinion to the contrary. Finally, to the extent that the Veteran believes that his left knee conditions are related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. In this regard, the etiology of a knee disability, including degenerative arthritis, internal derangement and instability is a matter that requires medical training and expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his left knee disabilities is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board finds the opinion of the 2021 VA examiner to be significantly more probative than the Veteran's lay assertions. In sum, the preponderance of the competent, credible, and probative evidence indicates that the Veteran's left knee disabilities were not shown in service, or for many years thereafter and the most probative evidence of record is against a finding that the Veteran's left knee disabilities are related to service. Accordingly, service connection for a left knee disability is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board is sympathetic to the Veteran and is grateful for his honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Medina, 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.