Citation Nr: 21041266 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 06-19 816 DATE: July 8, 2021 ORDER Entitlement to service connection for a left knee disorder is denied. REMANDED Entitlement to service connection for an eye disorder is remanded. Entitlement to service connection for a left forearm disorder is remanded. FINDING OF FACT A left knee disorder was not causally or etiologically related to service, was not continuous since service, was not shown to a compensable degree within one year of separation from service and was not caused or permanently worsened by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a left knee disorder have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1983 to May 1984 and from February 2003 to June 2004, as well as additional reserve service in the Army National Guard. This matter is on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board remanded multiple claims, including the Veteran's claim of service connection for a left knee disorder, for additional development. The case has now been returned to the Board for further appellate action. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As an initial matter, degenerative joint disease (DJD) of the left knee is a chronic disorder under 38 C.F.R. § 3.309(a); as such, presumptive service connection based on continuity of symptomatology will be addressed. Further, the Veteran has argued that his left knee disorder was proximately caused or aggravated by a service-connected disorder; therefore, secondary service connection will be considered. Finally, direct service connection will also be discussed. Turning first to direct service connection, the Veteran has been diagnosed with a left knee disorder. Specifically, a January 2007 VA examination diagnosed chondromalacia patella, a small knee effusion, and a small medial meniscus, and subsequent July 2017 and February 2020 VA examinations diagnosed patellofemoral pain syndrome with osteoarthritis as well as a left knee strain. Accordingly, a current diagnosis has been shown and the first element of service connection has been met. A review of the service treatment records (STRs) reveals that multiple medical examinations found that the Veteran's lower extremities were clinically normal. Furthermore, he asserted in multiple Reports of Medical History that he did not have a trick or locked knee or swollen and painful joints. However, November 1987 STRs reflect that the Veteran twisted his left knee during reserve service and experienced left knee pain. Furthermore, he asserted in November 2009 and September 2015 that his left knee disorder stemmed from getting his leg tangled while dismounting a Humvee during his service in Iraq between 2003 and 2004, falling to the ground, and hitting his left knee, as well as being required to hold heavy objects in 2004. He is competent to report in-service symptoms; accordingly, resolving reasonable doubt in his favor, the second element of direct service connection- in-service incurrence- has been met. As to nexus, the Veteran asserted in multiple medical treatment notes and lay statements that his current knee disability stems from multiple in-service incidents, to include a fall off a Humvee in Iraq, holding heavy objects, and the receipt of an anthrax vaccine. A review of the record reveals that September 2015, July 2017, February 2020, and January 2021 examiners diagnosed a left knee strain and bilateral patellofemoral pain syndrome with osteoarthritis. The examiners recounted the Veteran's history of in-service left knee injuries but opined that it was less likely than not that his left knee disorder was incurred in or caused by service. The examiners noted that the Veteran suffered left knee injuries in 1987 and 2003, respectively, but found that in each case, the Veteran received treatment and no follow-up care was necessary. The examiners further found that the STRs did not reflect either a left knee injury with continued symptoms and treatment, to include DJD, or chronic or recurring left knee pain. Rather, the examiners asserted that the Veteran's current left knee disorder was a chronic condition that generally worsened over time and was a product of his natural aging process. The examiners further did not find that the Veteran's left knee disorder was a sequela of the receipt of an anthrax vaccination. Specifically, the examiners noted that there was no indication in medical literature of an association between patellofemoral pain syndrome and anthrax vaccinations. Finally, the examiners noted that the Veteran's left knee disorder was generally a result of the natural aging process, obesity, and occupational history. However, upon examination, the examiners opined that weight gain was not a substantial factor in the development of his left knee disorder and that the disorder would have occurred regardless of the Veteran's weight gain. The examiners stated that weight gain caused increased impact loading on his knees and may have contributed to his left knee disorder, but that it did not do so to a substantial degree. Furthermore, the examiners found that the Veteran was not considered to be morbidly obese but was instead slightly overweight. The examiners thoroughly reviewed the claims file and discussed the relevant evidence, to include whether the evidence established a nexus between the Veteran's current left knee disorder and his in-service left knee injury, considered his assertions, and provided a thorough supporting rationale for the conclusions reached. As such, the September 2015, July 2017, February 2020, and January 2021 examinations were adequate and are assigned high probative value. The evidence of record does not otherwise establish a nexus between the Veteran's current left knee disorder and his in-service left knee condition. As such, the medical evidence does not establish a nexus between the Veteran's current left knee disorder and service; therefore, direct service connection is not warranted for the claim. Turning to presumptive service connection, a left knee disorder did not manifest to a compensable degree within one year of separation from service. While the Veteran asserted that he experienced continuous left knee pain since his in-service injury, clinicians reported no objective clinical findings to support his assertions and establish that a left knee disorder had manifested to a compensable degree within a year of separation. Rather, the record shows that the Veteran was first diagnosed with a left knee disorder, to include a small effusion, a small focal area of chondromalacia, and a small medial meniscus, in May 2006. Even assuming that he developed symptoms of his current left knee disorder in May 2006, this is outside the one-year presumption for certain chronic disorders such as DJD. Moreover, to the extent that the Veteran experienced continuous pain within a year of separation from service, the medical evidence does not indicate that his symptoms manifested to a compensable degree at that time. Therefore, the medical evidence does not support service connection on a one-year presumptive basis. Next, the record does not establish continuity of symptomatology under 38 C.F.R. § 3.309(a). As noted above, the evidence shows that the Veteran's current left knee disorder was first noted in May 2006, 2 years after his separation from service. Therefore, his left knee disorder was not shown until 2006, with documentation beginning at the same time. In light of the above, the preponderance of the evidence is against the claim for service connection based on continuity of symptomatology and the appeal is denied on this basis as well. Turning to secondary service connection, the Veteran has been diagnosed with a left knee disorder and is service connected for multiple disabilities, to include cervical myositis and degenerative disc disease and DJD of the lumbar spine. Therefore, a current disorder and a service-connected disability have been shown and the first two elements of secondary service connection have been met. However, the medical evidence does not support a nexus between the two. Specifically, in February 2020 and January 2021 a VA examiner explained that the Veteran's knee strain was an acute event. The examiner offered that the Veteran's left knee disorder was a simple strain rather than a more severe condition. The examiner noted that the knee strain would only be caused or aggravated by a service-connected disability if the disability had a significant impact on the Veteran's gait, but that the medical evidence did not reflect such an impact. As noted above, the examiner further offered that the Veteran's left knee disorder was generally a result of the natural aging process, obesity, and occupational history. Obesity may qualify as an "intermediate step" between a service-connected disability and another current disability that establishes secondary service connection under 38 C.F.R. § 3.310(a). However, the examiner opined that the Veteran's service-connected disabilities did not cause him to become obese or gain weight. To this end, the examiner explained that weight gain occurs due to a number of factors. The examiner acknowledged that service-connected disabilities could interfere with activity and precipitate a weight increase. However, the examiner ultimately opined that the Veteran's weight gain was not caused by a physiologic or organic factor, to include his service-connected disabilities, but rather by excess caloric intake. The examiner thoroughly reviewed the claims file and discussed the relevant evidence, to include whether a nexus existed between the Veteran's current left knee disorder and his service-connected disabilities, considered his assertions, and provided a thorough supporting rationale for the conclusions reached. As such, the February 2020 and January 2021 medical opinions were adequate, and are assigned high probative value. The medical record does not otherwise establish a relationship between the Veteran's left knee disorder and a service-connected disability; accordingly, the medical evidence does not support the claim of service connection for a left knee disorder as secondary to a service-connected disability. In sum, the medical evidence does not establish a nexus between his current left knee disorder and either his active service or a service-connected disorder. Therefore, based on the above, the medical evidence weighs against the claim. The Board has considered medical articles submitted by the Veteran regarding the relationship between depression and physical disorders, to include physical pain. However, the articles submitted do not directly address the Veteran's specific case or establish that his left knee disorder was related either to a service-connected disability or directly to his active service. The Board has also considered lay statements submitted by the Veteran regarding the etiology of his left knee disorder. As noted above, he is competent to report symptoms and describe observations because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer opinions as to the etiology of any current disorder due to the medical complexity of the matters involved. Such competent medical evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by STRs and clinical records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. In reaching the above conclusion, 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, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND In July 2019, the Board remanded the Veteran's claims of service connection for an eye disorder, to include oscillopsia, vertigo, and disequilibrium, and a left forearm disorder for further development. As to the Veteran's eye disorder, the Board required a new VA examination that would address whether the Veteran's symptoms constituted an undiagnosed illness. Subsequently, in January and February 2020, VA examinations were afforded. The examiners offered that the Veteran's eye disorder was neither incurred in service nor caused or aggravated by a service-connected disability. However, the examiners failed to address whether the Veteran's symptomatology was evidence of an undiagnosed illness manifested by signs and symptoms such as vertigo and disequilibrium. Moreover, the examiners did not assess the Veteran's January 2020 contention that his eye disorder stemmed from exposure to burn pits while serving in Iraq. Finally, the examiners acknowledged a history of oscillopsia in January 2007, but found that more recent treatment notes revealed that the condition had resolved. However, for purposes of eligibility for VA benefits, a current disability will be established if diagnosed over the course of the entire appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, notwithstanding the findings of the January and February 2020 examiners, the Veteran has been diagnosed with oscillopsia over the course of the appeal. Therefore, a medical opinion is needed to determine the nature and etiology of the Veteran's eye disorder, to include his previously diagnosed oscillopsia. Turning to the Veteran's left forearm disorder, the Board directed the RO to obtain a medical opinion that would assess whether his left forearm condition was proximately due to or aggravated by a service-connected disorder. In February 2020, an examiner offered that it was less likely that a left forearm disorder was proximately due to or aggravated by the Veteran's service-connected cervical myositis and spinal degenerative disc disorder (DDD) and DJD. The examiner noted that the Veteran was also service connected for lateral epicondylitis of the left elbow but failed to opine as to whether a relationship existed between his service-connected left elbow disorder and his claimed left forearm disorder. Accordingly, further development is required to determine the nature and etiology of the Veteran's left forearm disorder. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to the remanded claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Direct the claims file to an appropriate clinician to address the Veteran's eye disorder, to include oscillopsia, vertigo, and disequilibrium, as well as his left forearm disorder. As to the Veteran's eye disorder, the clinician is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that: (a) the Veteran's eye disorder is etiologically related to service, to specifically include exposure to burn pits in Iraq; and (b) the signs and symptoms of the Veteran's eye disorder, to include vertigo and disequilibrium, constitute an undiagnosed illness. As to the Veteran's left forearm disorder, the clinician is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left forearm disorder is caused or aggravated by a service-connected disability, to specifically include lateral epicondylitis of the left elbow. The clinician is advised that for purposes of service connection, the Veteran's previously diagnosed oscillopsia constitutes a current diagnosis. In forming the opinions, the clinician must address the Veteran's January 2020 assertion that his eye disorder was the product of exposure to burn pits while serving in Iraq, and the February 2020 examination noting that the Veteran complained of left forearm pain and was service-connected for lateral epicondylitis of the left elbow. If the clinician determines that examinations are necessary in order to provide the requested opinions, then the examinations should be scheduled. A complete rationale for all opinions must be provided, as adjudicators of prohibited from making medical determinations. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Spigelman, 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.