Citation Nr: 21032558 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 10-41 135 DATE: May 27, 2021 ORDER Entitlement to service connection for a left knee condition, to include left knee ligament tear and left knee degenerative joint disease, to include as secondary to service-connected residuals of right knee medial collateral ligament tear, right knee arthritis, and residuals of right ankle avulsion fracture (collectively "right leg conditions"), is denied. FINDING OF FACT The Veteran's left knee condition is not shown by the probative evidence to have originated during his military service or for many years after the conclusion of his service or to otherwise be related or attributable to his service or service-connected right leg conditions. CONCLUSION OF LAW The Veteran's left knee condition was not incurred in service and may not be presumed to have been incurred in service and was not due to his service-connected right leg conditions. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1969 to March 1971. In a September 2017 decision, the Board of Veterans' Appeals (Board) denied the Veteran's petition to reopen his claim of entitlement to service connection for a left knee disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 decision, the Court granted a Joint Motion for Remand (JMR) and remanded the claim for further proceedings. In an August 2018 decision, the Board reopened the Veteran's claim of entitlement to service connection for a left knee disorder and remanded the matter to allow the Agency of Original Jurisdiction (AOJ) to afford the Veteran with an adequate examination regarding the nature and etiology of his claimed left knee disorder. The Veteran testified before the undersigned Veteran's Law Judge at an October 2019 Board Hearing. The Board then remanded the claim in November 2020. Service Connection and Secondary Service Connection To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, including degenerative joint disease, are considered chronic, per se, and therefore may be presumed to have been incurred in or aggravated by service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, in order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a left knee condition, to include left knee ligament tear and left knee degenerative joint disease, to include as secondary to service-connected residuals of right knee medial collateral ligament tear, right knee arthritis, and residuals of right ankle avulsion fracture (collectively "right leg conditions"), is denied. For the reasons fully discussed below, the claim for entitlement to service connection for a left knee condition is denied. (1) Current Disability As an initial matter, the Board notes that the Veteran has a current left leg disability, specifically to include current diagnoses of left knee ligament tear and left knee degenerative joint disease. See March 2019 VA Knee and Lower Leg Disability Benefits Questionnaire (DBQ). Therefore, the current disability requirement is met. (2) In-service Injury The second element is also met. The Veteran reported that he was in training at Fort Leonard Wood in 1969 and injured his right knee and left knee after a jump. He stated that though his left knee was injured, "it was not as bad as the right" and was neither x-rayed or medically treated in 1969. The Veteran's service treatment records note an injury in August 1969 from the Veteran jumping from the back of a truck. The Board notes that the Veteran is competent to report the circumstances of the injury he experienced in service because they are based on his own direct observations. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of her personal knowledge). Moreover, the Board finds these statements to be credible, as the Veteran has reported a consistent history of the in-service injury in describing the symptoms throughout the period on appeal. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing). Here, at his examinations and also his October 2019 Board Hearing, the Veteran reiterated that he hurt his left knee from a jump. In viewing the evidence in a light most favorable to the Veteran, the Board finds the Veteran's statements regarding an in-service occurrence are corroborated and the second element is met. (3) Nexus Unfortunately, even though more than one theory of entitlement was considered, the Board finds that the third element of service connection, the nexus, is not met. For the following reasons, there is no nexus based on either a presumptive or direct basis. i) Presumptive Service Connection As an initial matter, degenerative joint disease is a condition that is considered chronic, and therefore, will be presumed to have been incurred in service if it manifested to a compensable degree (meaning to at least 10 percent disabling) within one year after discharge from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Moreover, since degenerative joint disease is a chronic condition according to § 3.309(a), service connection may be established alternatively under § 3.303(b) for continuity of symptomatology if it was first noted during service and the Veteran has experienced continuous symptoms associated with it ever since. Walker v. Shinseki, 708 F.3d 1331 (2013). Based on the evidence of record, the Veteran was not diagnosed with degenerative joint disease until 2007. See March 2019 VA Knee and Lower Leg DBQ. There is no indication elsewhere that the Veteran had degenerative joint disease during service or eleven months after he left service. Therefore, he is not entitled to presumptive service connection under 3.309(a). Moreover, even though the Veteran reported that he hurt his left knee in service, and he is competent to report symptoms that come through his own senses, he did not assert that he experienced left knee symptoms since service. Even if he did assert that he experienced left knee symptoms since service, he is not competent to medically attribute any such left knee pain symptoms to his current diagnosis of degenerative joint disease, as such an etiology determination requires medical expertise, which the record shows he does not have. Thus, chronicity and continuity of the degenerative joint disease since service is not established under 3.303(b). In sum, based on the record, the Veteran's degenerative joint disease did not manifest during or within the year after his separation from service, and the evidence of record does not establish that his continuous symptomatology is associated with his current degenerative joint disease. He is therefore not entitled to service connection on a presumptive basis, including on the basis of continuity of symptomatology. ii) Direct Service Connection For the following reasons, the Board finds the Veteran is not entitled to service connection for left knee ligament tear or left knee degenerative joint disease on a direct basis because there is no competent evidence that the Veteran's left knee ligament tear or left knee degenerative joint disease is related to his service. Based on the November 2020 Board remand, the Board remanded the claim for an adequate etiology opinion, which was obtained in February 2021. The Board finds persuasive the February 2021 VA medical opinion, in which the examiner opined that the Veteran's left knee disability was less likely than not incurred in or otherwise related to service. The examiner concluded so because the Veteran was without any left knee complaints until 2007, and there is otherwise no objective evidence to support any connection between the left knee and active duty service. Given that there is no evidence the examiner was not competent or credible, and as the opinion is based on a thorough review of the file, the Board finds this opinion entitled to probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-301 (2008). There are also no competent private or VA medical records on file that provide contrary findings to the February 2021 VA negative etiology opinion. The Board acknowledges that the Veteran contends that his left knee ligament tear and left knee degenerative joint disease were incurred in or caused by his service, however, the record does not demonstrate that the Veteran has special training in or acquired any medical expertise. While lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), the Board finds the specific issue here (i.e., the etiology of left knee ligament tear or left knee degenerative joint disease) falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Thus, the Veteran's lay statements, to the extent that they pertain to the potential etiology of his left knee ligament tear or left knee degenerative joint disease, are entitled to minimal probative weight. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony in general is not competent to prove that which would require specialized knowledge or training). Thus, as the negative VA opinion carries more probative weight, the preponderance of the evidence weighs against a finding that the Veteran's current left knee ligament tear or left knee degenerative joint disease is related to his service. As such, service connection is denied on a direct basis. iii) Secondary Service Connection The Veteran also contends that his left knee ligament tear or left knee degenerative joint disease is secondary to his already service-connected right leg conditions. The Veteran has satisfied the first two elements of a current disability and a currently service-connected disability. However, there is no adequate nexus between the currently-diagnosed left knee ligament tear or left knee degenerative joint disease and the Veteran's service-connected right leg conditions. The Board finds persuasive the February 2021 VA medical opinion, in which the examiner opined that the Veteran's left knee ligament tear and left knee degenerative joint disease were less likely than not caused or related to or underwent any incremental increase in disability regardless of its permanence due to the service-connected right leg conditions. The examiner's stated reason is that in relation to the claimed left knee disability, there is no evidence of any significant prolonged alteration in gait attributed to the service-connected right knee disability. Furthermore, the left knee ligament tear and left knee degenerative joint disease were diagnosed many decades later than the right knee disability. Given that there is no evidence the examiner was not competent or credible, and as the opinion is based on a thorough review of the file, the Board finds this opinion entitled to probative weight. See Nieves-Rodriguez, 22 Vet. App. at 300-301. Additionally, there are no private or VA medical records on file that provide any findings that conflict with the February 2021 VA negative etiology opinion. Finally, the Board acknowledges that the Veteran contends that his left knee ligament tear and left knee degenerative joint disease is related to the Veteran's service-connected right leg conditions; however, the record does not demonstrate that the Veteran has special training in or acquired any medical expertise. While lay persons are competent to provide opinions on some medical issues (see Kahana, 24 Vet. App. at 435), the Board finds the specific issue here (i.e., the etiology of left knee ligament tear and left knee degenerative joint disease) falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377. Thus, the Veteran's lay statements, to the extent that they pertain to the potential etiology of his left knee ligament tear and left knee degenerative joint disease, are entitled to minimal probative weight. See Layno, 6 Vet. App. at 470. Thus, as the negative VA opinion carries more probative weight, the preponderance of the evidence weighs against a finding that the Veteran's current left knee ligament tear and left knee degenerative joint disease are related to his service-connected right leg conditions. As such, secondary service connection is denied. Conclusion Based on the above, the Board finds that service connection for left knee ligament tear and left knee degenerative joint disease are not warranted on either a presumptive, direct, or secondary basis. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. 38 U.S.C. § 5170(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (2001); Gilbert, 1 Vet. App. at 55-57. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.