Citation Nr: 21040269 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 18-03 801 DATE: July 3, 2021 ORDER Entitlement to service connection for a bilateral knee disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's bilateral knee disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1974 to February 1978. The Veteran testified before a Veterans Law Judge (VLJ) in June 2019. A transcript of the hearing is associated with the claims file. In a February 2021 letter, the Board notified the Veteran that the VLJ who held the June 2019 hearing was no longer employed by the Board and offered the Veteran the opportunity to have an additional hearing. The Veteran did not respond to this letter within the allotted 30-day time period, and it is assumed that he declined the opportunity for another Board hearing. In October 2019, the Board remanded this matter to obtain a VA examination to determine the nature and etiology of any bilateral knee disability. The requested VA examination has been provided and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a bilateral knee disability The Veteran contends that his current bilateral knee disability was caused by his physically demanding duties, including marching in the woods with a heavy rucksack, while in active service as an infantryman. Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. In some cases, a grant of service connection is available on a presumptive basis. Service connection may be presumed for certain chronic conditions, such as arthritis, if a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and the condition manifested to a degree of at least 10 percent within one year of the date of discharge from service. 38 U.S.C. §§ 1101, 1112(a), 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Analysis A September 2014 X-ray from the Veteran's private physician appears to identify osteoarthritis in the Veteran's knees, though treatment records from the same doctor only note a diagnosis of knee pain. Therefore, the evidence establishes a current bilateral knee disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran has reported that his duties as an infantryman were physically demanding, involving running, hiking, and marching long distances with a heavy-duty rucksack. At the June 2019 hearing, the Veteran testified that he complained of knee pain to medical personnel during service while on active duty as an infantryman. Therefore, the evidence establishes an in-service knee injury. As an in-service injury and a current disability have been established, the question for the Board is whether the Veteran's current bilateral knee disability is related to his knee injury during service. The Veteran was provided with a VA knee examination in December 2019. The examiner reviewed the Veteran's medical history contained in the VA e-folder and conducted an in-person examination of the Veteran. The examiner noted diagnoses of left knee instability and right knee patellofemoral pain syndrome. The examiner considered the Veteran's statements regarding his knee injury. The Veteran reported that, during service, he was marching in the woods and heard his knee pop and ignored it but then the pain started to get worse. The Veteran notified the medics about his bilateral knee pain. The medics gave him a medical cream for discomfort. The Veteran reported being in the woods during service and had many duties such as hiking and running. The Veteran reported that in 2015 he went to his primary care physician for his bilateral knee conditions. The Veteran reported that since the injury in the military, his bilateral knees have gotten worse. The examiner concluded that the Veteran's current bilateral knee condition was less likely than not related to service. The examiner found that the Veteran received treatment for a knee condition during service, but the examiner found that this condition was acute only. The examiner found no evidence of chronicity of care from separation in 1978 until treatment for the current condition in 2014. Therefore, the examiner concluded that a nexus has not been established between the Veteran's knee acute condition during service and his current bilateral knee disability. The Board finds that the December 2019 VA medical opinion is the most probative evidence of record as to the etiology of the Veteran's bilateral knee disability. This opinion was based on a thorough review of the Veteran's medical records, consideration of his lay assertions, and supported by a fully articulated rationale. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board acknowledges the statements from the Veteran that his bilateral knee disability is related to his knee injury during service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing back pain either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, as a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and an event or injury in military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has also considered whether a grant of service connection is available on a presumptive basis. Here, the Veteran is competent to report knee pain symptoms since service. However, there is no medical evidence that the Veteran was treated for any knee condition within a year of his discharge from service. To the extent that the Veteran contends he experienced bilateral knee pain continuously since discharge from service, these statements are not credible, as they are inconsistent with the medical evidence of record, which does not show treatment for a knee condition until 2014, many years after service. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Board finds that the Veteran did not experience any symptoms of the claimed condition for many years after service. This long period without problems weighs against the claim. In sum, the competent evidence of record weighs against the Veteran's assertion that his bilateral knee disability is etiologically related to his active service. Although grateful for the Veteran's honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.