Citation Nr: 21041186 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-24 949 DATE: July 8, 2021 ORDER Entitlement to service connection for a right knee disability, to include as secondary to degenerative arthritis of the lumbar spine, is denied. Entitlement to service connection for a left knee disability, to include as secondary to degenerative arthritis of the lumbar spine, is denied. Entitlement to service connection for an acquired psychiatric disorder, to include depression, to include as secondary to degenerative arthritis of the lumbar spine, is denied. FINDINGS OF FACT 1. There is no competent evidence of record that establishes the Veteran's right knee disability is due to or the result of his active service, or as secondary to degenerative arthritis of the lumbar spine. 2. There is no competent evidence of record that establishes the Veteran's left knee disability is due to or the result of his active service, or as secondary to degenerative arthritis of the lumbar spine. 3. There is no competent evidence of record that establishes the Veteran's major depressive disorder is due to or the result of his active service, or as secondary to degenerative arthritis of the lumbar spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability are not met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for a left knee disability are not met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for depression are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1978 to February 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Atlanta, Georgia Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at a May 2019 hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. These matters have been before the Board previously, most recently in February 2021 at which time they were remanded for additional development. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in March 2010, April 2010, and May 2010. The RO associated the Veteran's service and VA private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, 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 order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis, with a presumptive period of one year following separation from service, is a listed condition. However, as there is no evidence, argument, or allegation of the currently claimed knee disabilities within the first post-service year, the presumption is not applicable here. Finally, a disability which is proximately due to, or the result of, or aggravated by a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. §§ 3.306, 3.310. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence, the benefit of the doubt is afforded the claimant. Knees The Veteran asserts that he has right and left knee disabilities which are related to his time in service, or are due to his service-connected degenerative arthritis of the lumbar spine. The Veteran's service treatment records (STRs) show that the Veteran injured his right knee in a softball game in April 1979. He had a hematoma, or bruise, of the right knee. There are no references to the left knee. At his hearing in May 2019, the Veteran testified that he believed he hurt his knees in an in-service incident in which he injured his back while on the competence course at Parris Island. He had to let go of a rope and fall into a reservoir of water. VA treatment records through April 2018 are negative for treatment for complaints of knee pain. The Veteran underwent a VA contract examination in September 2020. The VA contract examiner diagnosed bilateral knee strain. She noted that a complaint of bilateral knee pain on July 28, 2006, which did not show a causal relationship between the Veteran's bilateral knee condition and his back. The examiner concluded there is no documentation showing that the Veteran's back condition caused him to develop knee pain. There is no evidence that he fell and injured his knees secondary to his back condition. The VA contract examiner concluded that it is less likely than not that the Veteran's bilateral knee disability is proximately due to or the result of degenerative arthritis of the lumbar spine. However, the opinion was found to be inadequate as it lacked rationale; the contract examiner merely recited the Veteran's theory of entitlement, that his low back condition caused an altered gait that impacted his knees, but rejected such because there was no documentation of a connection. The VA contract examiner also failed to address the theory of direct service connection. A VA contract opinion was obtained in November 2020 which also determined it was less likely than not that the Veteran's bilateral knee condition was incurred in or caused by service. The examiner noted that the Veteran's right knee injury in 1979 was a hematoma, or a bruise. The follow-up visit showed it to be resolving and there was no further evidence of a chronic knee condition. The VA contract examiner noted that there was no evidence of an internal knee injury, suggesting a superficial or soft-tissues only injury. There was no evidence of a knee condition, post-service until records dated July 28, 2006, when bilateral knee pain was noted in the Veteran's reported history, citing the possibility of bilateral total knee replacement. This suggest arthritis. There was no documentation confirming the diagnosis of degenerative joint disease. No current x-ray was available. The examiner noted that the currently diagnosed knee strain and/or unconfirmed degenerative joint disease are less likely than not due to the acute, self-limited right medial hematoma during service which is presumed to have resolved. There is no indication of an injury that would predispose to arthritis. Degenerative joint disease is considered a natural aging process due to normal wear and tear. The Veteran's condition is bilateral and there is no evidence of residuals of the hematoma. The VA contract examiner determined the Veteran's condition is bilateral and there is no evidence of residuals of the hematoma; one would not anticipate a bilateral condition (strain) to develop due to a unilateral hematoma, 30+ years later. Strain usually occurs due to acute event or chronic overuse, the most likely causes in the Veteran's case. In its February 2021 decision, the Board requested that an opinion as to whether or not the Veteran's service-connected low back disability with lower extremity radiculopathy has caused or aggravated current left and/or right knee disabilities. The reviewer was directed to specifically address whether service-connected conditions have caused or contributed to an altered gait, affecting the biomechanics of the body, and contributing to knee disabilities. The requested VA opinion was obtained in April 2021. The VA contract examiner determined that the Veteran's bilateral knee conditions are not due to nor have they been aggravated by the Veteran's lumbar spine conditions including degenerative disc disease, stenosis, and radiculopathies. Postural or gait accomodation due to any cause, including whether the Veteran's back conditions, and radiculopathies does not cause a condition of another joint, i.e., the knees. The VA contract examiner found that this "especially applies to DJD which is due to normal wear and tear over time and not caused by gait or postural accomodation. Though DJD has not been diagnosed, it is included in this rationale for future reference. There is no imaging available and though strain was diagnosed, it is statistically possible that the Veteran's actual diagnosis is DJD. This includes any potentially service-connected conditions not specifically addressed." The VA contract examiner determined that the Veteran's knee conditions are bilateral and approximately equal, further ruling against such; furthermore, there is no evidence of aggravation of the Veteran's strain beyond its natural course due to any cause. Therefore, the VA contract examiner found that it is less likely than not that the Veteran's bilateral knee strain is due to or incurred in the Veteran's low back conditions. It is less likely than not that they have been aggravated beyond the natural course by the Veteran's back conditions, or any other condition service-connected or otherwise. Direct service connection for right and left knee disabilities must be denied because the competent evidence of record shows that these disabilities were neither caused nor aggravated by service; nor does it show that the Veteran experienced symptoms of such conditions that continued from service until the present. As there is no evidence of the conditions within the first post-service year, presumptive service connection is not available. Additionally, the Board finds that the Veteran's claimed knee disabilities are not related to his Veteran's service-connected right degenerative arthritis of the lumbar spine. Notably, the VA examiner opined that there is no relationship between the Veteran's right and left knee disabilities and his service-connected degenerative arthritis of the lumbar spine. Although the Veteran has expressed his belief in a connection between his current knee disabilities and his time in service and/or his service-connected back disability, he lacks the knowledge and training required to render a nexus opinion on a cause and effect relationship unobservable to a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). No medical professional has rendered a positive nexus opinion, nor supported the Veteran's position. Service connection for a lumbar spine disability, including service connection on a secondary basis, is not warranted. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, at 1 Vet. App. 49 (1990). Depression The Veteran is seeking service connection for depression, to include as due to his service-connected degenerative arthritis of the lumbar spine. The Veteran's STRs are negative for treatment for symptoms and/or a diagnosis of depression or any acquired psychiatric disorder. VA treatment records dated June 2017 reflect treatment for depression, noting the Veteran's history of depression. He requested to resume his medication for depression at that time. He reported mild symptoms of anxiety and depression with sad mood at times, getting anxious from some stressors such as his medical health, but reported that he copes with his stress very well as he had good social support. The Veteran underwent a VA mental disorders examination in September 2020. The VA contract examiner noted the Veteran's diagnosis of depressive disorder, moderate. The VA contract examiner noted the Veteran's diagnosis of congestive heart failure is relevant to his depressive disorder. The Veteran has had 2 strokes, a heart attack and has compromised cardiovascular functioning; he finds this frustrating and significantly anxiety provoking, including the loss of sight in one eye as well. None of these conditions are service-connected. The examiner determined it was less likely than not that the Veteran's depressive disorder is proximately due to or the result of his service- connected degenerative arthritis of the lumbar spine, nor was it aggravated by it. During the examination, the Veteran reiterated that his financial distress and major health issues dominated as factors that aggravated his depression. These medical disabilities, which lead to his obtaining Social Security Disability (SSDI) based on congestive heart failure, multiple strokes, a heart attack, and limited ability to walk due to cardiovascular disease. The examiner noted that the Veteran barely mentioned his back pain as a factor in contributing to his depression, and that is it certainly not a clinically significant cause. While an increase in depression following the onset of back disability was noted, the increase was not due to the service-connected back. The examiner determined that due to the history of the Veteran's depression many years prior to the beginning of his relatively minor degenerative arthritis (25 years after his discharge from the Marines) and the impact of his major medical conditions, it is clear that his degenerative arthritis did not cause or aggravate to any significant extent his current major depressive disorder. In March 2021, an addendum opinion was obtained from the VA contract examiner as was directed by the Board in its February 2021 remand. The VA contract examiner noted that the Veteran's major depressive disorder began in 2006-07 directly related to several issues in his life: divorce, financial distress (bankruptcy), loss of his house, and major health conditions. Those major health conditions have plagued him consistently since that time including congestive heart failure, multiple strokes, blindness in the right eye from a stroke, and a heart attack. He obtained SSDI about one year ago related to these issues and no longer works; another factor impacting his finances and sense of mission in life, i.e., depressive disorder. The examiner noted that the primary factor impacting the Veteran's ability to walk is his congestive heart failure. His orthopedic issues, including degenerative arthritis of the spine, radiculopathy, and right and left knee problems were not a focus of his discussion and are not viewed as causes or sources of aggravation of this major depressive disorder. The examiner further stated that depressive disorder was not incurred in service or was impacted by his time in service in any direct way and therefore is not considered service connected. Direct service connection for depression must be denied because the competent evidence of record shows that this disability was neither caused nor aggravated by service; nor does it show that the Veteran experienced symptoms of such a condition that continued from service until the present. Additionally, the Board finds that depression is not related to the Veteran's service-connected degenerative arthritis of the lumbar spine. Notably, the VA examiner opined that there is no relationship between the Veteran's depression and his service-connected degenerative arthritis of the lumbar spine. Although the Veteran has expressed his belief in a connection between his depression and his time in service and/or his service-connected back disability, he lacks the knowledge and training required to render a nexus opinion on a cause and effect relationship unobservable to a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). No medical professional has rendered a positive nexus opinion, nor supported the Veteran's position. Service connection for a lumbar spine disability, including service connection on a secondary basis, is not warranted. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, at 1 Vet. App. 49 (1990). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger 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.