Citation Nr: 21040242 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-00 729 DATE: July 2, 2021 ORDER Entitlement to service connection for a right knee disorder is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran's right knee disorder began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for an entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307. 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1988 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in December 2020, and a transcript of that hearing is of record. In February 2021, the Board remanded this appeal for further development. Having reviewed the record, there has been substantial compliance with the previous Board remand instructions, as an adequate VA examination has been obtained. Stegall v. West, 11 Vet. App. 268 (1998). Although additional evidence has been associated with the Veteran's claims file, to the extent that the Veteran personally submitted those records (a copy of a service treatment record already of record and lay statements), the Board finds that a waiver of AOJ's initial consideration is not required at this time. In a statement dated May 23, 2021, the Veteran asked that her case be held open for 30 days to submit additional evidence. She did submit her statement and the lay statement, along with copies of evidence already in the file, and that time period has passed without any further requests for time. Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist, or with the conduct of the Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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; 38 C.F.R. § 3.102; 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 to the claimant. See Gilbert, 1 Vet. App. at 53. The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Service Connection Service connection may be granted 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 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to compensable degree within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The Veteran contends that she injured her right knee while in boot camp, for which she saw a military doctor and was put on crutches for two weeks. She also claims that she managed her knee pain by taking pain medications in service, after being told during that time that she would be medically discharged if she were to come back, as she did not want to be medically discharged and as this occurred near the end of her training. She also stated that when she was transferred to Rota, Spain, thereafter, she was exempted from PT tests due to her high blood pressure issues. She also claimed she did complain of knee pain during the separation examination, which she noted was documented as "muscle contraction." In her substantive appeal, she also indicated that she underwent an x-ray, not a MRI, during boot camp, pointing out that a torn meniscus would not be shown in x-rays. She also testified that while she had issues with knees in service, she had other issues which superseded her knee issues, such as hypertension complicating her pregnancy, and further added that she was placed on bed rest for about two months (around July/August 1990) prior to her delivery due to her swollen knee and hypertension. It is not in question that the Veteran has a current disability as she has been diagnosed with various conditions, to include right knee early arthritis with questionable recurrence of meniscal tear and medial meniscus tear. The Veteran's January 1988 service treatment records include a complaint of right knee pain for three days, for which she was diagnosed with arthralgia, as well as an x-ray of the right knee showing pain to medial collateral ligament. Her medial collateral ligament and lateral collateral ligament were found normal, and she denied any trauma during that time. Her September 1990 service treatment records provide that the Veteran was noted to have a "combination of early and variable decelerations with variable deceleration accompanied by a leg component." Nonetheless, her June 1991 separation examination shows all clinically normal condition. While she reported "muscle contraction" during that time, that notation was followed immediately by "headache," and she also specifically denied any "trick or locked knee" and "bone, joint, or other deformity," even though she reported other unrelated issues, such as headache, shortness of breath, high blood pressure, and sea sickness. The Veteran first underwent a VA examination in March 2012, during which time a VA examiner furnished a negative direct service connection opinion. In support of this finding, the examiner first noted that the Veteran "underwent pregnancy and child rearing without any evidence of knee injury," and relied on a June 2011 MRI, which was later found to include an incorrect notation. Because the March 2012 VA nexus opinion was based in part on an inaccurate factual history, the Board remanded for a new medical nexus opinion. Post-Board remand, a new medical nexus opinion was obtained in March 2021. The examiner opined that the Veteran's right knee condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In doing so, the examiner emphasized that other than the one-time treatment in January 1988 for right knee arthralgia, there was no notation of a knee condition throughout the remaining period of her military service (spanning about three years), and also pointed out that it is highly unlikely a significant knee condition would have gone not noticed during the separation examination. The examiner also indicated that meniscus tears occur acutely and "are painful events," and concluded that it is more likely that her current knee condition had its onset in or around 2011, considering that the first evidence of a right knee complaint post-service was in 2011. Thereafter, RO requested a new medical addendum opinion from the March 2021 VA examiner for the examiner to further address the records specified in the previous Board remand instructions. The examiner again opined that "it is less likely than not that the Veteran's current right knee condition is due to or incurred in events in service, including her 1988 arthralgia, which clearly resolved." The examiner first stressed that the variable decelerations with a "leg component" documented in the September 1990 records was either a "typo or a misread on the note" and explained that the variable deceleration referred to concerns fetal heart rate deceleration with a "late component." In concluding that the Veteran was placed on bed rest for her pregnancy-related complications (hypertension)rather than her knee conditionand in finding that there is no evidence of a knee/leg condition associated with the pregnancy in 1990, the examiner stated that he has been practicing as a certified OBGYN physician for 30+ years, and further emphasized that an obstetrician would not place an individual on bed rest for knee pain without referral and evaluation, especially considering the increased risk of DVT on bed rest while pregnant. The examiner also reiterated there being an absence of any right knee condition from 1988 to 1991, to include her separation examination, despite the fact that the Veteran continued to serve active duty long past 1988. With regards to her post-separation treatment records, specifically requested to be considered per the Board remand instructions, the examiner indicated that he could not locate one of those specified records (i.e. November 2004 VA treatment records, "complained injuring right knee in bootcamp"). Nonetheless, the examiner explained that his finding/rationale would not change, as the onset of her knee symptoms in 2004 per the November 2004 VA treatment records (as opposed to the onset of 2011, as indicated in the March 2021 VA examination) is still years after separating from service, and noted that the symptoms manifested in 2004 are "almost certainly a new event arising 13 years post-service." With regards to the Veteran's post-service treatment record containing MRIs of her right knee showing meniscal tears and degeneration, the examiner opined that the meniscal tears are due to acute trauma, rather than her military service, underlining that the Veteran almost certainly would have been unable to perform the duties of service with such injuries. The Board assigns the most probative value to this opinion as this was furnished after reviewing all pertinent records, to include her service treatment records, post-service treatment records, and her statements. There is no other medical etiology opinion to the contrary. While the Veteran's right knee disability is a chronic disease under 38 C.F.R. § 3.309 (a) subject to presumptive service connection consideration (i.e. arthritis), service connection is not warranted under this presumption. There is no objective medical evidence in the record showing that the Veteran's right knee arthritis actually manifested during service or developed within one year after separation from active service or has been continuous since discharge. As noted above, her separation examination is silent as to any knee condition. While the Board is cognizant of her testimony that she complained of right knee pain during the separation examination, which she claims was documented as a "muscle contraction," the Board does not find this allegation credible. First, the notation of "muscle contraction" was followed by "headache," which seemingly suggests that the "muscle contraction" was associated with her complaint of headache, rather than with a right knee pain condition. Second, and more importantly, she also expressly denied having "trick or locked knee," and "bone, joint, or other deformity." Considering that she reported other unrelated conditions (and arguably both less serious and more serious conditions, to include headaches, sea sickness, and high blood pressure) during her separation examination, it seems reasonable to assume that the Veteran would have reported her right knee problem had she actually experienced any symptoms during that time. The fact that she affirmatively denied knee issues while detailing other medical concerns weighs heavily against her allegations. She argues her separation examination was not thorough, but that would not explain her denials of knee issues on the report of medical history she personally completed. Her allegations that the separation examiner only did blood pressure, height and weight is refuted by the document, which shows not only all normal clinical findings, but an audiometric exam, notes about her lab findings/blood work, and the discussion the examiner had with her about her medical history, including noting the medications she was taking for her hypertension. It is presumed a medical examiner certifying the exam results has actually performed an examination unless there is clear evidence indicating otherwise. Here, the Board does not find credible the Veteran's assertions the separation examination was not accurately conducted considering the findings and notations in the document and the accompanying medical history report. Additionally, even taking into consideration her testimony that her MOS did not require much standing, but instead, primarily involved sedentary work, and that she was exempted from any PTs due to her high blood pressure condition (and thus, allegedly did not have to engage in any physically demanding activities and was able to avoid activities that might aggravate her knee), the Board notes that she did seek treatments for and reported other medical conditions throughout her military service after 1988, so she had ample opportunity to report continuing knee pain if she had any. On dental health questionnaires in 1989 and 1990, she denied painful joints. If she is suggesting she had no further knee pain because she was able to restrict her activities, then that bolsters the VA opinion her knee condition from 1988 was acute and resolved. If she is suggesting she had knee pain, but did not complain of it because she could limit her physical activity, that does not explain her explicit denial of knee issues at her separation examination. If she had continued to have knee pain for the remaining years of her service after the 1988 treatment, then it is reasonable to expect she would have reported such at separation, especially when she took the time to report minor illnesses such as sea sickness. As for the application of continuity of symptomatology, the Veteran has not specifically claimed that she has had the current right knee condition since separating from service. Instead, she testified that it really was "not a problem" as long as she avoided certain activities, and that she did not get treatment for her knee problems until later as she knew what activities to avoid to not aggravate her knee. Also, the fact that she not only first established care with the VA in the mid-1990s (she left service in 1991), but also the fact that it was not until 2004 that she seemingly first complained of her right knee condition tends to weigh heavily against any suggestion that she experienced continuous right knee symptoms post-separation. She was receiving medical care and could have reported knee symptoms if she had any. Thus, her claim is denied on this basis as well. The Board also took into consideration the statements provided by the Veteran and her fellow serviceman. The Veteran stated that her right knee condition is related to service, and her fellow serviceman stated that he witnessed the Veteran adjusting a wrap on her knee when preparing for a PT, that she told him that she injured her knee while at bootcamp, that she answered she would be okay when he asked her whether she would be okay to run, that he ran alongside her to make sure that she would be okay, that he did not see her injure her knee, and that he knows that she had some type of knee problem when he met her in the late 1980s. However, the Board notes that rendering an opinion as the issue of nexus presents a complex medical question requiring the opinion of a medical professional. Although the Board acknowledges that these statements are credible and competent to the extent that they relay professing witness's own experiences, personal observations/recollections, and symptoms perceived directly through the senses, at least with regards to establishing a medical nexus, neither has shown to have the appropriate medical training and expertise to offer a competent opinion on the etiology of a right knee disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, to that extent, the Board will not assign any probative value to these lay statements but assign the most probative value to the April 2021 VA medical opinion. Accordingly, the Board finds that the Veteran's right knee condition is not related to service. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lee 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.