Citation Nr: 21040797 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 14-03 234 DATE: July 7, 2021 ORDER Service connection for a right knee disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has had a right knee disorder at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for Service connection for a right knee disorder have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 2001 to March 2005, including foreign service in Iraq and Kuwait. For his meritorious service, the Veteran was awarded (among other decorations) the Army Commendation Medal and the Army Achievement Medal. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office(RO). Claims for service connection for a back disorder, a neck disorder, a left knee disorder, a right knee disorder, and a left wrist disorder were remanded by the Board in December 2017 and again in May 2020 for additional development. The Veteran's Social Security Administration (SSA) records are on file and he was afforded a VA examination in December 2020. Although a line of duty determination (LOD) determination as to his reported inservice motor vehicular accident (MVA) was not obtained to verify the MVA, he is now service connected for multiple disabilities which stem from that MVA. Accordingly, there has been substantial compliance with the prior remands. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In part, an April 2021 rating decision granted service connection for degenerative arthritis of the cervical spine, degenerative arthritis of the lumbar spine, degenerative arthritis of the left knee, and degenerative arthritis of the left wrist, status post fracture. Effective dates and disability ratings were assigned for each disability, which the Veteran did not appeal. Accordingly, the only matter remaining for appellate consideration is service connection for a right knee disorder. Principles of Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). However, not every manifestation of joint pain during service will permit service connection for arthritis first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). Certain chronic diseases, such as arthritis, will be presumed related to service, absent an intercurrent cause, if shown as chronic in service; or, if manifested to a compensable degree within a presumptive period following separation from service; or, if 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). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Reasonable doubt will be favorably resolved if there is an approximate balance of favorable and unfavorable evidence but if the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001) (holding that an approximate balance of evidence is more favorable than the evidence being in equipoise, i.e., equally balanced). 1. Service connection for a right knee disorder It is contended that the Veteran has a right knee disorder which had its onset during service as a result of an MVA. The Board does not doubt that the Veteran sustained injuries from an inservice MVA but finds that the preponderance of the evidence is against the claim for the following reasons. The service treatment records (STRs) are negative for signs, symptoms, complaints, history, treatment, or diagnosis of a right knee disorder. The Veteran began receiving VA outpatient treatment (VAOPT) in 2007. An April 21, 2010 VAOPT record from the Beckley, VA Medical Center (VAMC) reflects an assessment of "[r]ight knee injury Humvee accident, 2003." An October 26, 2011 VAOPT record noted that he complained of right knee pain, and there was an assessment of "[r]ight knee injury Humvee accident, 2003" as well as a "[h]istory of polyarthralgia [] right knee [] with family history of father having rheumatoid arthritis." In the Veteran's original March 2010 claim for service connection he claimed service connection for "knee pain." He reported that his right knee condition had begun in November 2003 when he was in an MVA, in a Humvee, but that no medical records were completed during service. In his Notice of Disagreement (NOD) in November 2010 he reported that he had developed degenerative joint disease (DJD) years after his inservice injury because minor injuries of the joints would not have manifested as disabling to a degree requiring medical treatment until years after the injury. In a December 2010 statement he reported that immediately after the MVA he had only been treated by the application of bandages and was then given three days off mission. On VA examination of the Veteran's knees in December 2020, pursuant to the Board remand in May 2020, the Veteran's records were reviewed. It was noted that he had no complaints of a right knee condition but he complained of bilateral knee pain. He related having been in a Humvee accident in Iraq in 2003 in which he sustained multiple injuries. He did not report having any flareups of a right knee condition and did not report having any right knee functional loss or impairment. On examination he had full and painless right knee motion with no loss of motion after three repetitions of motion. There was no pain with weight-bearing and no crepitus. He had full strength and no instability or subluxation of the right knee. The examiner opined that the diagnosis was diagnosis of left knee degrative arthritis which was related to the inservice Humvee accident; however, there was no report by the Veteran of a right knee condition during the examination, and the examiner rendered no diagnosis as to the right knee. The Board concludes that the Veteran does not have a current right knee disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton, 557 F.3d at 1366; Romanowsky v. Shinseki, 35 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303. The VA examination December 2020 reflects that the Veteran was diagnosed with arthritis of the left knee but that he was not diagnosed with a right knee disorder, and in fact had no complaint of a right knee condition, other than vague reports of bilateral knee pain. In fact, the examination report shows that the examiner found the Veteran's right knee to be clinically normal. Treatment records, throughout the appeal period, likewise, do not reflect a current right knee disability. Indeed, the treatment records reflect only a prior history of right knee disability without recurrence or current findings of disability. The treatment records do not show that the Veteran has an active right knee disorder and the assessments of a right knee disorder were made based on the Veteran's reported history and are absent of any clinical findings that would support the assessment. Thus, the Board must determine whether the Veteran's assertions of pain is sufficient to establish a diagnosis of a right knee disability. The Board notes that some symptoms of disabilities of the knee, e.g., pain, are capable of lay observation and, while a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the Veteran is not competent to provide a diagnosis of more complex medical conditions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this regard, the Board notes that disabilities of the knee, such as arthritis or ligamentous pathology, requires medical observation and testing to identify. Because the Veteran's lay reports may be indicative of another health condition, such as some pathology due to a cause other that trauma, the Board concludes that a right knee disorder is not the kind of disability that is capable of lay diagnosis. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). In fact, the Veteran has never identified any objectively observable symptoms, as oppose to subjective pain. Next, as noted above, the Veteran was afforded a VA examination in which no right knee disorder was found. Thus, while the Veteran is competent to report symptoms of knee pain, he is not competent to provide a medical opinion as to the etiology of such knee pain, i.e., that it stems from a remote injury many years earlier. While a layperson can provide evidence as to some questions of etiology, a question about the etiology of joint pain as being due to remote inservice trauma is not in the category of questions that lend themselves to resolution by lay observation, as it requires more than direct observation by a lay person to resolve and is a complex, medical matter that requires medical training to resolve. Woehlaert, 21 Vet. App. At 462. Nevertheless, even if the Board was to accept that the Veteran is competent to diagnose a right knee disorder, the Board finds his reports less than credible as they are inconsistent with the other evidence of record. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration a claimant's statements, it may consider whether self-interest may be a factor in making such statements); see also Caluza, 7 Vet. App. 498, aff'd,78 F.3d 604 (Fed Cir. 1996) (holding that, in weighing credibility of lay evidence VA may consider many different factors). In this instance, the record reflects that the Veteran was examined by a trained medical professional to properly evaluate and diagnose the alleged right knee disorder. However, none was found. And again, as noted, his treatment records annotate that he has had right knee pain, but the treatment records are based of the Veteran's reported history and are absent of medical observation or testing. The transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional, whether that professional is VA or private. LeShore v. Brown, 8 Vet. App. 406 (1995). Indeed, the treatment records do not show that clinical testing, such as X-rays, were conducted. Further, the VAOPT records do not show that a visual examination which found any abnormality of the Veteran's right knee was ever conducted by a medical professional. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); see also generally Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The Board thus finds the objective medical evidence, collectively, to be of greater probative value, than the Veteran's uncorroborated contention. The Board additionally gives more probative weight to the 2020 VA examination report which showed, after review of the record, that the Veteran did not have a right knee disorder. It is noted that even without an underlying diagnosis, symptoms can still constitute a current disability, for VA compensation purposes, if it reaches the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, the Veteran has not asserted, and the weight of the evidence does not reflect, that his claimed symptomatology has had such an impairment to affect earning capacity. For instance, the 2020 VA examination report reveals that the Veteran's reported symptomology does not impact his ability to work. Moreover, treatment records, likewise, show that his reported symptoms are without mention of complications which would impair his earning capacity. Overall, the preponderance of the evidence is against finding that the claimed right knee pain symptomatology amounts to an impairment that affects the Veteran's earning capacity. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability i.e., a functional impairment of earning capacity there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran has neither identified nor provided a favorable medical opinion to weigh in this matter. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.