Citation Nr: 21040076 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-21 813 DATE: July 2, 2021 ORDER Service connection for a left knee disability is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's left knee disability was not causally or etiologically related to his military service, nor was it caused or aggravated by any service-connected disability, to include the service-connected low back disability. CONCLUSION OF LAW The criteria for service connection for a left knee disability, to include as due to a low back disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 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 December 2012 to December 2015 to include service in the National Guard with a period of ACTDUTRA from July to December 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded in April 2020 and April 2021 Board decisions for further development. The Board notes that in the April 2020 Board decision the issues on appeal before the Board were entitlement to service connection for a right knee and a left knee disability. During the pendency of the appeal a November 2020 rating decision granted service connection for a right knee disability. The Board found in its April 2021 decision that a remand is warranted for additional development. The Board notes that in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit found that the term "disability" as used in 38 U.S.C. § § 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability and held that pain alone can serve as a functional impairment and therefore qualify as a disability. In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. To establish the presence of a disability, the Veteran will need to show that his pain reaches the level of functional impairment. In other words, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. In December 2015 the Veteran filed a claim for "left lower extremity pain secondary to back to include leg, ankle, and foot." Service connection is in effect for degenerative arthritis of the spine with right lower extremity and left lower extremity sciatic neuropathy; service connection is also in effect for right knee disability. Review of the Veteran's service treatment records (STRs) show in July 2011 the Veteran reported bilateral knee pain for the past 3 days; the treating provider noted soft tissue knee pain above both knees and left knee tenderness on palpation of the anterior aspect. In a January 2016 VA examination for the knees, the Veteran was evaluated for his right knee but denied problems to his left knee; as such, the examiner did not evaluate the Veteran's left knee. In a May 2017 VA examination for the Veteran's back, the Veteran reported pain in his knee with extended walking and standing and occasional knee pain at work. Review of the medical treatment record shows complaints for knee pain. In a November 2019 physical therapy consultation, the Veteran complained of bilateral knee pain and stated that he could barely walk or bend his knees at time. The Veteran reported that he works at a creamery for 12 hour shifts that require him to stand or walk for most of the time at work. The treating provider assessed that the Veteran's symptoms were due to poor footwear as well as the 12 hour shifts with walking and standing. In the April 2020 Board decision, the Board remanded the appeal for a VA examination to consider the July 2011 complaints of bilateral knee pain and to address the level of functional impairment caused by knee pain. The Veteran was afforded a November 2020 VA examination. The examiner opined that they did not find any evidence of a left knee condition and stated that the Veteran reported occasional soreness in the left but that was "within the physiologic spectrum of normal." The Board notes that the examiner noted the Veteran was diagnosed with right patellofemoral pain syndrome in July 2011 but does not address the July 2011 complaints of bilateral knee pain and tenderness as requested by the April 2020 Board remand or complaints in the medical treatment of knee pain with standing, walking and bending in considering whether it rises to the level of functional impairment in line with Saunders. In addition, the Board notes the December 2015 claim raises a secondary theory of entitlement to service-connected degenerative arthritis of the spine to which the November 2020 VA examiner has not provided an opinion on the secondary theory of entitlement. Under these circumstances, the Board concluded that the VA medical opinion was inadequate, and another remand was required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). Service connection for a left knee disability, to include as due to a low back disability Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that it was either caused or aggravated by a service-connected disability. Id. Pursuant to the Board's remand directives in its April 2021 decision, the Veteran was afforded a post-remand VA medical opinion for his left knee in May 2021. The VA examiner opined that Veteran does not have a diagnosed left knee disability and therefore it is less likely than not that any left knee disability was incurred in service or is proximately due to any service-connected condition. The VA examiner noted that the Veteran reported occasional left knee pain which did not rise to the level of functional impairment and therefore did not have a left knee disability; he during the November 2020 VA examination, Veteran did not report any different pain or functional impairment during the appeal period from December 2015 to present. The VA examiner concluded there is no objective evidence to render a diagnosis for the claimed left knee condition. Additionally, the VA examiner also held that Veteran reported pain in bilateral knees during a physical therapy appointment in November 2019 but was able to work 12 hour shifts on his feet and his left knee is void of any functional impairment and the Veteran's left knee pain is within the physiological realm of normal without disability. See May 2021 C&P Exam. While the Veteran asserts that his left knee disability is related to his service-connected low back disability, he has not shown that he has specialized training sufficient to render such an opinion. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to provide an opinion regarding etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). For the reasons discussed above, however, the Board finds that the opinion provided by the VA examiner in May 2021 is more probative than the Veteran's lay assertions. The VA examiner has expertise, education, and training that the Veteran is not shown to have. As such, the examiner's opinion warrants more weight. In sum, the preponderance of the competent, credible, and probative evidence indicates that the Veteran's claimed left knee disability is not related to service or caused or aggravated by his service-connected low disability. In reaching this conclusion, the Board finds that based on the lay and medical evidence of record, the Veteran does not left knee functional impairment or loss of earning capacity due to his left knee. As such, the claim for service connection for a left knee disability is denied. In reaching the above conclusions, 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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.