Citation Nr: 21040094 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-05 601 DATE: July 2, 2021 ORDER Service connection for a right knee condition, to include a right knee meniscal tear and right knee degenerative arthritis, is denied. FINDING OF FACT The Veteran's right knee condition, to include right knee meniscal tear and right knee degenerative arthritis, did not have its onset in service or within one year of service, and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a right knee condition, to include a right knee meniscal tear and right knee degenerative arthritis, have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to January 1973. The case is on appeal from a January 2015 rating decision. In November 2019, the Board (Board of Veterans' Appeals) issued a decision that denied entitlement to service connection for a right knee disability. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (CAVC). In a July 2020 Order, pursuant to a Joint Motion for Partial Remand (JMPR) filed by the parties, the Court vacated and remanded the November 2019 decision for compliance with the instructions in the JMPR. In a January 2021 decision, the Board remanded the claim for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for a right knee condition. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In addition, 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran contends his right knee disability is a result of his time in service. He explained he suffered an injury to his right knee during service, when he was working on the loading docks. He reported while working on the loading docks operating a forklift, he fell, and when he tried to catch himself, he injured his right knee. See January 2017 lay statement; see also March 2021 VA examination report at 3. Initially, the current disability requirement is established. A March 2021 VA examination report reflects a diagnosis of a right knee medial meniscus tear and right knee degenerative arthritis. The evidence of record also shows the occurrence of an in-service event or injury. The Veteran specifically contends that while stationed in Chu Lai in the Republic of Vietnam, he fell while unloading cargo from a ship. He asserts that he fell five feet and landed on his right knee. He stated further that due to this injury, he missed a day of work. See January 2017 lay statement; see also March 2021 VA examination report at 3. Any notation related to this incident or a right knee injury are absent from the Veteran's service treatment records (STRs). However, in this case, the Board finds that the Veteran is competent and credible to report what he experienced during service. Moreover, his contentions are consistent with the circumstances of his service. The Veteran's service records reflect he was deployed to the Republic of Vietnam and his duties included operating a forklift. Thus, the occurrence of an in-service injury to the Veteran's right knee is established, particularly when reasonable doubt is resolved in the Veteran's favor. Thus, the question becomes is whether there is a nexus between the Veteran's current right knee medial meniscus tear and degenerative arthritis, and his in-service injury. Concerning this question, the evidence of record includes a March 2021 VA opinion. The examiner who provided a March 2021 VA examination concluded that it is less likely than not that the Veteran's right knee medial meniscus tear and degenerative arthritis are related to his in-service injury or had their onset during service. In this regard, the examiner found significant that the Veteran was not diagnosed and treated with a right knee medial meniscal tear and degenerative arthritis until 2011. She stated that diagnosis of those conditions at least 30 years after service, does not support a nexus. She noted that the Veteran's STRs do not document that the Veteran was diagnosed or treated for a right knee injury during service and that his July 1972 separation examination did not reflect that he had a right knee condition at that time. In addition, the examiner explained that the Veteran sustained a left leg injury in 1976 due to a motor vehicle accident that resulted in a below the knee amputation, and the medical evidence at that time was negative for a right knee injury. She explained further that subsequent medical evidence related to the Veteran's prosthetic fittings, which included gait analysis, are negative for a right knee condition (which could affect prosthetic fitting of the left leg) and in one record, the Veteran's right leg was reported as normal. The Board acknowledges the Veteran's contention that his right knee condition is due to an injury he sustained after falling while operating a forklift during his service in the Republic of Vietnam. However, the Veteran's statements may not be used to establish a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As the Veteran has no known or reported medical expertise, he is not legally competent to opine on a relationship between his medial meniscus tear and degenerative arthritis and his reported in-service injury. As such, his opinion lacks probative value, and an opinion by a qualified medical expert is required to decide the claim. Consequently, the Board gives more probative weight to the VA opinion described above. The Board finds the opinion to be persuasive, as it relies on expert knowledge and the Veteran's medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinion supports that the Veteran's right knee medial meniscal tear and right knee degenerative arthritis are unrelated to his in-service injury. In this regard, the opinion relies primarily on medical records relating to the Veteran's left leg prosthesis fittings from the 1970s and 1980s which are negative for a right knee condition. The examiner explained that had a right knee condition been present, it would have been noted in the records as it would have affected his left leg prosthesis fittings. Concerning whether the Veteran's right knee medial meniscal tear and right knee degenerative arthritis had their onset in service, the opinion notes that the Veteran's disability had its onset approximately 30 years after his separation from service. In addition, there is no similar medical opinion of record weighing in favor of service connection. Additionally, because the Veteran has a diagnosis of arthritis (degenerative arthritis of the spine), which is one of the listed chronic diseases, the Board has carefully considered whether service connection is warranted under 38 C.F.R. § 3.303(b) or on a presumptive basis. As explained by the Federal Circuit in Walker, there are two ways to establish service connection for a chronic disease. In this case, the evidence does not show that Veteran was diagnosed with arthritis during service or that it manifested during that time period even if diagnosed later. As such, it cannot be said that the chronic disease (arthritis) was established and not subject to legitimate question during service. Similarly, the evidence does not reflect that arthritis manifested to a compensable degree within one year of the Veteran's separation from service. Rather, the earliest diagnosis of arthritis was in May 2011, when an MRI imaging report from a private medical provider notes "mild medial compartment narrowing" decades after the Veteran separated from service. Accordingly, in order to establish service connection, the Veteran must demonstrate a continuity of symptomatology. The Veteran has indicated that he has experienced right knee pain since his in-service injury. See e.g., March 2021 VA examination report at 3. The Veteran is competent to report the presence of symptoms and frequency of treatment. Jandreau, 492 F.3d at 1377. However, other evidence of record does not support a continuity of symptomology as related to right knee degenerative arthritis. In this regard, the Veteran the Veteran did not report right knee pain at any of his left leg prosthesis fittings throughout the 1970s and 1980s. Moreover, his right lower extremity was reported as normal in February 1988 and medical records reflect that he was very active as he played football, softball, and hikes. In addition, there is a gap of at least 30 years between the Veteran's discharge from service and the first documented report of complaints related to right knee pain in 2011. As the Board has considered whether the Veteran has a current right knee disability, and determined that he does, the concerns of the July 2020 JMPR have been addressed. However, as the preponderance of the evidence is against the claim with regard to the nexus requirement, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is not warranted for a right knee condition, to include a right knee medial meniscus tear or right knee degenerative arthritis. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Gray, 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.