Citation Nr: 21040937 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-43 484 DATE: July 7, 2021 ORDER Service connection for a left knee condition is denied. Service connection for a right knee condition is denied. REMANDED Entitlement to service connection for a back condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that a left knee condition manifested in service, within the one-year presumptive period, or is otherwise related to service. 2. The preponderance of the evidence is against a finding that a right knee condition manifested in service, within the one-year presumptive period, or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to August 1992. A hearing was held before the undersigned Veterans Law Judge in December 2019. A transcript is of record. In May 2019, the Board of Veterans' Appeals (Board) issued a decision which, in pertinent part, remanded the above captioned claims for additional development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a 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 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). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must also 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 evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). 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. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for left knee condition The Veteran testified he sprained his left knee during service. However, he was unable to recall a specific incident where he sprained his left knee. At the December 2018 Board hearing, the Veteran testified that he had medical records from the National Personnel Records Center (NPRC) which showed treatment to the left knee as well as the right knee. The medical evidence of record supports a finding that the Veteran has a current diagnosis of a left knee condition as evidenced by the May 2012 and November 2019 VA examination reports. However, while the Veteran's post-service treatment records include treatment for left knee pain, the evidence of record, including VA examination reports with corresponding medical opinions, do not support a finding that his current left knee condition had its onset in service, within one year of separation from service, or is otherwise related to his military service. In making this finding, the Board has reviewed the Veteran's service treatment records (STRs) which show that, during service, he had no complaints or injuries sustained to his left knee. Further, while he testified to outstanding records at the NPRC which showed treatment to his knees, these records could not be located. Specifically, a July 2020 VA correspondence reported the NPRC could not locate the clinical records for the Veteran's left knee from May 1, 1992 to May 30, 1992. See July 2020 Correspondence. Moreover, additional records submitted by the Veteran in July 2020 include service treatment records, but these do not document any complaints or treatment for a left knee injury or pain. See STRs. The Veteran's postservice VA treatment records also show treatment for knee pain, but do not relate the current disability to his military service. Additionally, they do not show that he has had chronic knee pain since service. The Veteran has been provided two VA examinations over the course of his appeal. In May 2012, a VA examiner diagnosed a left knee sprain and opined it was less likely than not that the Veteran's knee condition was the proximate cause of his military service because of "exam and x-ray". See May 2012 VA Examination. While the examiner provided a medical opinion regarding causation, the opinion did not appear to consider the Veteran's lay contentions of injury and pain experienced during service. Pursuant to the May 2019 Board remand, another VA examination and medical opinion was conducted in November 2019. The VA examiner diagnosed left knee osteochondroma and opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the VA examiner acknowledged that subjective complaints and objective data supported the existence of left knee pain and swelling, but stated these could not justify a finding of direct service connection as there was no consistency in complaints or follow up care to support the Veteran's claim. See November 2019 VA medical opinion. The Board finds this opinion to be highly probative, as it is based on a thorough review of the Veteran's claims file, including interview with the Veteran, and is adequately supported. There is no competent evidence, to include any medical opinions, to the contrary. The Board notes further that although the Veteran has attributed his left knee pain to problems he experienced during service, there is no competent evidence to support his assertions. Additionally, while the Veteran is competent to report symptoms such as knee pain, he is not competent as a lay person to diagnose or opine as to the etiology of any current knee disorder. Such opinions require medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, this lay evidence does not constitute competent evidence and lacks probative value. Considering the foregoing, the Board finds that the preponderance of the evidence is against a finding that a left knee condition manifested during active service, within one year of active service, or are otherwise related to active service. Therefore, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. Accordingly, the Veteran's claim for service connection for a left knee condition is denied. 2. Entitlement to service connection for right knee condition The Veteran seeks service connection for a right knee condition. The Veteran testified at the December 2018 hearing that he hurt his right knee playing basketball during service. The injury became a chronic condition that he went back and forth to the doctors for to receive shots. The medical evidence of record supports a finding that the Veteran has a current diagnosis of right knee sprain as evidenced by the May 2012 and November 2019 VA examinations. However, while the Veteran's post-service treatment records include a diagnosis of right knee sprain, the evidence of record, including VA examination reports with corresponding medical opinions, do not support a finding that his current right knee strain had its onset in service, within one year of separation from service, or is otherwise related to his military service, to include the injury he sustained in service. In making this finding, the Board has reviewed the Veteran's STRs which document that the Veteran was treated for right knee pain in May and June 1992, following an injury to his right knee while playing basketball. He had restriction of movement as a result for two weeks. See STRs. The Veteran's post service VA treatment records also show treatment for knee pain but do not relate the current disability to his military service. Additionally, they do not show that he has chronic right knee pain since service. The Veteran was provided two VA examinations over the course of his appeal. In May 2012, a VA examiner diagnosed the Veteran with right knee sprain and opined it was less likely than not that the Veteran's knee condition was the proximate cause of his military service because of "exam and x-ray". See May 2012 VA Examination. While the examiner provided a medical opinion regarding causation, the opinion did not appear to consider the Veteran's lay contentions of injury and pain experienced during service, particularly evidence of right knee injury during service. Pursuant to the May 2019 Board remand, another VA examination and medical opinion was obtained in November 2019. The VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the examiner stated that although there was a report of an injury occurring while the Veteran was deployed, the claims file did not show consistent complaints nor continuous care. The examiner further found that the subjective complaints and objective data from the present examination did not support a finding of a chronic condition caused by an injury in 1992. See November 2019 VA medical opinion. Based on the foregoing medical opinions, particularly the most recent November 2019 medical opinion, it is not shown that the Veteran's current right knee condition had its onset in service or was otherwise caused by his service injury. As highlighted by the VA examiner, while the Veteran suffered an injury during his service to his right knee, there is no consistency of care to support the claim that his right knee pain has persisted since service. The Veteran has contended he suffered continuous pain since service; however, the available records do not support this claim. Moreover, these statements and the Veteran's reported history were considered by the VA examiners in rendering their medical opinions. While the Veteran is competent to report having experienced symptoms of right knee pain since service and consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current right knee condition as the Veteran has not demonstrated the necessary medical expertise. Additionally, to the extent the Veteran believes his current right knee condition is related to his military service, he is not competent to provide a nexus opinion regarding this issue. The questions to be resolved in this case involve medical matters and are not capable of resolution through lay observation. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In so finding, the Board acknowledges the record also includes a December 2018 private medical opinion from Dr. J.S., an attending physician, who opined the Veteran suffered from a service-connected knee injury and had developed posttraumatic arthritis in the right knee as a result. See December 2018 Private Medical Statement. The statement appears to be based solely on the Veteran's subjective complaints and historical reports, and there is no accompanying rationale for the medical opinion. Therefore, probative weight cannot be assigned to this favorable medical opinion. In conclusion, the Board finds that there is no probative evidence to warrant service connection for a right knee condition. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. Service connection for a right knee condition is denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND Entitlement to service connection for a back condition The Veteran contends he entered service, weighing approximately 130 pounds and the weight of carrying the pack and gear during physical training resulted in lower back pain. Although the Veteran's STRs are silent for any injuries or pain relating to his back, at the December 2018 Board hearing, the Veteran testified that his back hurt him "most of the time" in service. He described feeling pain during road marches and stated that at times, his back would "go out". He also testified the pain would cause him to go to the dispensary where he was given ibuprofen, and that roughly a year or so after service, he began seeking treatment for his back pain. The record includes several medical opinions regarding the Veteran's contentions of back pain relating to his service, but unfortunately, none of the opinions are adequate. First, a January 2019 medical statement (which was received by VA in February 2019) from a private physician reported an injury on active duty in 1992 while the Veteran playing basketball. The private physician opined the Veteran's back injury was incurred in service and that he had developed posttraumatic arthritis. SeeFebruary 2019 Medical Statement. However, the medical opinion lacks objective medical evidence or rationale for the opinion rendered. Based on the May 2019 Board remand directives, a VA examination was performed in November 2019 which diagnosed the Veteran with sacroiliitis (diagnosed in 1999), lumbosacral strain (diagnosed in 2008) and degenerative arthritis of the spine (diagnosed in 2011). See November 2019 VA examination. The examiner provided a negative nexus medical opinion indicating there was no data in the claims file reporting lumbar injury during service. The examiner stated that although there was subjective and objective data supporting the existence of lumbar disc disease that could be the result of service-related activities, there was not enough evidence to substantiate this as the direct cause of the Veteran's injuries. See November 2019 VA medical opinion. While the examiner provided a medical opinion regarding causation, the opinion was not conclusive. Importantly, the opinion did not appear to consider the Veteran's lay contentions of injury and pain experienced during service which may be persuasive evidence to substantiate the direct cause of the Veteran's injuries. As a result, the Board finds a remand is required to obtain a medical addendum opinion to consider the Veteran's lay statements of continuity of symptomatology relating to his back pain during service and continually following service. The matter is REMANDED for the following action: (Continued on the next page) Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's back condition is at least as likely as not related to his military service, including consideration and discussion of the Veteran's lay contentions of continuity of symptomatology of back pain during and after his military service. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.