Citation Nr: 21040585 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-31 435 DATE: July 6, 2021 ORDER Entitlement to service connection for a bilateral knee disorder to include as secondary to service-connected degenerative disc disease of the lumbar spine is denied. FINDING OF FACT The preponderance of the evidence is against finding that bilateral knee disorder began during active service, was secondary to (caused or aggravated by) service-connected degenerative disc disease of the lumbar spine or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral knee disorder, to include as secondary to service-connected degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from June 1981 to June 1984 and from November 1990 to April 1991, and additional duty in the Reserves. These matters come before the Board of Veterans' Appeals (Board) from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board denied entitlement to service connection for a bilateral knee disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claim (Court). In a May 2020 Joint Motion for Partial Remand (Joint Motion), the parties requested that the Court vacate and remand the portion of the July 2019 Board decision that denied entitlement to service connection for a bilateral knee disorder. In a May 8, 2020 Order, the Court granted the Joint Motion. In October 2020, the Board remanded this matter for more development. The Board finds that the Regional Office (RO) substantially complied with the Board's remand instructions and an additional remand to comply with the Board's directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. 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) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to service connection for a bilateral knee disorder to include as secondary to service-connected degenerative disc disease of the lumbar spine The Veteran contends that he has a current knee disability which is related to service. Specifically, the Veteran asserts that he suffers from a bilateral knee disability that is related to an injury incurred during active duty or is due to his military duties loading heavy ammunition, and that his symptoms have been continuous since active duty. Alternatively, he asserts that he suffers from a bilateral knee disorder that was caused or aggravated by his service-connected lumbar spine disability. See January 2016, June 2016 and July 2017 statements. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of osteoarthritis, and evidence shows that an in-service injury, event, disease occurred, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of osteoarthritis began during service or is otherwise related to an in-service injury, event, or disease. Service records show a single complaint of knee pain following a football injury in October 1982. However, there is no further record of any complaints of or treatment for a knee injury for the rest of the Veteran's time in service. The March 1991 examination conducted at the time of his separation from his second period of service notes no musculoskeletal or lower extremity abnormalities. VA treatment records show that in September 2012 the Veteran was referred to his primary care physician regarding his left knee following an x-ray. Additionally, there are complaints of knee pain noted consistently from that time. In September 2012, the Veteran had an x-ray that revealed, "No acute fracture, mild medial and lateral compartment osteoarthritis." In June 2019, the Veteran had an x-ray that revealed, mild osteoarthritis. In July 2016, the Veteran's private treatment provider submitted a medical opinion or statement that related the knee pain to service, but the opinion was not supported by a rationale. Thus, the Board finds that this opinion has no probative value. In March 2021, the Veteran was afforded a VA examination for his bilateral knee condition. The examiner confirmed that the Veteran has a diagnosis of bilateral osteoarthritis. The Veteran reported that he started experiencing bilateral knee swelling, dull/achy pain, occasional sharp shooting pain after injuring his back during service. The Veteran reported that he went on sick call and was given Motrin, or Ibuprofen, but did not have any imaging performed. The Veteran stated that his condition has progressively gotten worse and his current symptoms include swelling, dull/achy pain, and occasional sharp pain. The examiner opined that the Veteran's bilateral knee disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner was specifically asked to address whether the current bilateral knee osteoarthritis was a post-traumatic reaction to the wear and tear of activities performed during active duty, and to acknowledge that the Veteran contends he has had knee pain since active duty. As to the rationale, the examiner explained that the medical records do not support the Veteran's currently diagnosed left knee osteoarthritis as a maturation of the October 1982 injury/knee pain. The examiner stated that the Veteran's treatment records were silent for any complaint of chronic knee pain or continuity of care for a knee condition, while in service or in the immediate year after discharge from service. The examiner noted that the Veteran separated from service in 1991, and the record fails to demonstrate that there is a chronicity of care thereafter. The Board acknowledges the Veteran's contention that his bilateral knee disability began during service, and that he had pain since service. Certain chronic diseases 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, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Treatment records show the Veteran was not diagnosed with osteoarthritis until September 2012, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of swelling, dull/achy pain, and occasionally a sharp pain, since service, he is not competent to determine that these symptoms were manifestations of arthritis as the Veteran has not demonstrated the necessary medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, with regard to the decades-long evidentiary gap in this case between the 1982 in-service injury and the earliest manifestations of a knee disability in September 2012, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Further, the March 2021 VA examiner opined that the Veteran's osteoarthritis is not at least as likely as not related to an in-service injury, event, or disease, including the Veteran's contention that his current bilateral knee osteoarthritis was a post-traumatic reaction to the wear and tear of activities performed during active duty, and acknowledges that the Veteran contended he has had knee pain since active duty. The rationale was that the Veteran did not demonstrate he received care for his bilateral knee condition, and that the Veteran's service treatment records were silent as to receiving treatment after the treatment he received in October 1982. The examiner stated that, "Osteoarthritis of the knee is a chronic condition that tends to progressively worsen over time with the natural aging process or due to repetitive injuries to the knee joint." The examiner reiterated that, "the veteran's left knee osteoarthritis is more likely than not caused by other factors such as repetitive injuries, or the natural aging process of the knee all of which predisposed to developing knee osteoarthritis." The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The record does not provide competent, credible evidence of ongoing, persistent, or continuous complaints or symptoms of a bilateral knee disability, as required under 38 C.F.R. § 3.303. The Board weighed the medical evaluations, private treatments records, and the Veteran's testimony and found the most probative evidence is the VA examination, due to its thoroughness, in the evaluation process, and the consideration of the Veteran's medical history. Thus, service connection may not be presumed here based on continuity of symptomatology under 38 C.F.R. § 3.303. Service connection for a bilateral knee disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's bilateral knee disability and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Here, the Veteran is unable to demonstrate that there is a direct service connection because there is no nexus between his bilateral knee disability and service. The Board acknowledges the Veteran is competent to report experiencing symptoms of bilateral knee pain and swelling, during service, but not the etiology of his bilateral knee disability by his own observations. The Board considered the Veteran's lay testimony and did not find his statements to be credible because while the Veteran received treatment during service for a numerous amount of conditions, his service treatment records (STR's) do not reflect that he reported that he had any knee pain after the treatment he received in October 1982. In addition, during the August 1989 periodic examination, there was no notation of any knee problems, and in the March 1991 separation examination the Veteran reported that his medical condition has not changed since the last physical examination. Additionally, the Veteran noted that he was in good health when he entered the Reserves in March 1999 and his periodic examination in March 1999 was normal. Thus, the Veteran's statements are entitled to no probative weight. The Board also weighed the March 2021 VA medical opinion and the July 2016 private medical opinion and found the VA medical opinion to be more persuasive, because the private medical opinion failed to include a rationale. In contrast, the VA examination was thorough, by incorporating the Veteran's assertions within the report, considering his medical history, and providing extensive testing and evaluations of the Veteran's condition. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In summary, service connection is not warranted on a direct basis. Secondary Service Connection In the alternative, the Veteran contends that his bilateral knee disability is secondary to his service-connected degenerative disc disease of the lumbar spine disability (back disability). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or was aggravated beyond its natural progress by the Veteran's degenerative disc disease of the lumbar spine service-connected disability. The Board concludes that, while the Veteran has a current disability of bilateral knee osteoarthritis in light of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the preponderance of the evidence is against finding that the Veteran's osteoarthritis is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The March 2021 VA examiner opined that the Veteran's bilateral knee osteoarthritis is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected degenerative disc disease of the lumbar spine disability. The examiner explained the Veteran's knee osteoarthritis is instead more likely than not caused by other factors such as repetitive injuries, or the natural aging process of the knee all of which predisposed the Veteran into developing bilateral knee osteoarthritis. The examiner explained that the two conditions have different pathologies and the examiner was unable to find any peer-reviewed studies that support a relationship between osteoarthritis and by the service-connected degenerative disc disease of the lumbar spine disability condition. As to the rationale, the examiner explained, Degenerative disc disease (DDD) is a medical condition in which there are anatomic changes and a loss of function of varying degrees of one or more intervertebral discs of the spine of sufficient magnitude as to cause symptoms. The root cause is thought to be loss of soluble proteins within the fluid contained in the disc with resultant reduction of the oncotic pressure, which in turn causes loss of fluid volume. Normal downward forces cause the affected disc to lose height, and the distance between vertebrae is reduced. Narrowing of the space available for the spinal tract within the vertebra (spinal stenosis); or narrowing of the space through which a spinal nerve exits (vertebral foramen stenosis) can result in inflammation and impingement of a spinal nerve, causing a radiculopathy. The examiner also explained that osteoarthritis is "one of the most common causes of chronic disability in adults due to pain and altered joint function that result from characteristic pathologic changes in the joint tissues and their processing in a biopsychosocial context (figure 1)." The March 2021 VA examiner opined that the Veteran's bilateral knee osteoarthritis is less likely than not (less than 50 percent probability) aggravated beyond its natural progression by the Veteran's service-connected degenerative disc disease of the lumbar spine disability. As to the rationale, the examiner stated that osteoarthritis of the knee is a chronic condition that tends to progressively worsen over time with the natural aging process or due to repetitive injuries to the knee joint. The examiner explained that the Veteran's service-connected degenerative disc disease of the lumbar spine is a different disability, with a different pathophysiology, which makes it less likely to affect the Veteran's osteoarthritis in the Veteran's knees. Specifically, the knee osteoarthritis is in a "distinctly separate anatomical location," and the examiner is unable to find peer-reviewed literature that supports the Veteran's contention that the Veteran's osteoarthritis would be aggravated by his service connected back disability. The examiner concluded by stating, that the Veteran's osteoarthritis is more likely than not caused by other factors such as repetitive injuries, or the natural aging process of the knee all of which predisposed the Veteran to developing knee osteoarthritis. The Board acknowledges that the examiner stated, "left knee," or "knee" instead of stating the bilateral knee disability. However, the Board finds that examiner's rationale could be applied to both knees, as the examiner did not differentiate them anatomically, and the Board finds that examiner inadvertently omitted directly stating the "right knee." The Board notes that the Veteran's private treatment provider indicated that the Veteran's knee pain was related to service but did not differentiate between the knees either. The Board also notes that as discussed above the July 2016 Veteran's private treatment provider submitted a medical opinion that the Veteran's knee disability is due to service, but failed to provide a rationale for his opinion, and thus the Board affords the opinion no probative weight. The Board finds that the March 2021 VA examination to be more probative because the examiner considered the Veteran's medical history and provided extensive history. Nieves-Rodriguez, 22 Vet. App. at 295. In summary, service connection is unwarranted on a secondary basis. In addition, while the Veteran believes that his bilateral knee disability was proximately due to or aggravated by his service connected back disability, he is not competent to make this determination, as he has not demonstrated the necessary medical expertise. Jandreau, 492 F.3d at 1377. The Board considered the Veteran's lay testimony, service treatment records, VA records, March 2021 VA medical opinion, and July 2016 private medical opinion and determined that after weighing all of the evidence that the preponderance of the evidence is against finding that the Veteran's bilateral knee disability was proximately due to or aggravated by the Veteran's service connected back disability. In summary, absent competent, credible, and probative evidence of a nexus between the Veteran's service and a bilateral knee disability, the Board finds that this condition was not incurred in service, including as secondary to the Veteran's service connected back disability, and is not otherwise related to active service. The Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence weighs against the claim, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.