Citation Nr: 21041870 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 15-27 196 DATE: July 10, 2021 ORDER Entitlement to service connection for a right knee disability to include as secondary to a service-connected right foot disability is denied. FINDING OF FACT The preponderance of the evidence is against finding the Veteran's right knee disability was incurred in service, is otherwise related to service, manifested within one year of active service separation, or was caused or aggravated by the service-connected right foot disability. CONCLUSION OF LAW The criteria of service connection for a right knee disability to include as secondary to a service-connected right foot disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to July 1973. This appeal is before the Board of Veterans' Appeals (Board) from a June 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this claim is as follows: In January 2019, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge and a transcript of that hearing is associated with the claims file. In June 2019, the Board denied the Veteran's claim of entitlement to service connection for a bilateral knee disability to include as due to a service-connected disability. However, the Veteran appealed the June 2019 Board decision to the U.S. Court of Appeals for Veteran's Claims (CAVC) and in April 2020 a Joint Motion for Partial Remand (JMPR) was issued after finding the June 2019 Board decision relied on an inadequate VA examination. Subsequently, in October 2020, the Board remanded the Veteran's claims for further development and in an April 2021 supplemental statement of the case (SSOC) and rating decision, the RO granted service connection for the Veteran's left knee disability but denied service connection for his right knee disability. The Veteran's claim has since returned to the Board and for the reasons described herein, the Board finds substantial compliance with the remand directives and the JMPR. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends his right knee disability is secondary to his service-connected right foot disability; specifically, he asserts that the right foot disability caused problems with his right knee. See, e.g., January 2019 Hearing Transcript. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. For certain chronic diseases, such as degenerative arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, 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. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As the evidence of record was previously summarized in the June 2019 Board decision, the following will not be a full recitation of the evidence of record. Turning to the evidence of record, the service treatment records (STRs) do not indicate he voiced complaints related to or received treatment for a right knee injury and he was determined to be medically sound upon separation from service. In January 1997, private medical records indicate an MRI revealed an osteochondral defect in the right knee after he tore his meniscus. A March 1997 private record noted treatment for right knee osteochondritis desiccans. A November 2007 private record indicates an MRI revealed he had degenerative joint disease. A February 2008 private record indicates he received treatment for knee pain, and he stated he had a "12-year history of progressively worsening" pain. In April 2013 he underwent a VA knee conditions examination report and the examiner ultimately determined his right knee disability was less likely than not the result of active service and less likely than not proximately due to or the result of a service-connected disability. Specifically, as to direct service connection, the examiner cited to age, weight, and occupation as the most likely risk factors for the cause of the Veteran's knee disability. During the Veteran's January 2019 Board Hearing he alleged his knee pain started when he was 40 years old (roughly 1990). In June 2019 the Board denied the Veteran's claim and in April 2020 the JMPR was issued after determining the Board relied on an inadequate examination. Specifically, the JMPR determined the April 2013 VA examination was inadequate, stating: "the examiner addressed only whether Appellant's knee disabilities were proximately due to or the result of his service-connected right foot injury, but not whether they were aggravated by his right foot injury." In April 2021 the Veteran underwent a VA knee and lower leg examination report which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The examiner ultimately determined his right knee disability was not the result of a service-connected disability and also noted his service-connected right foot disability resulted in more stress to his left knee than his right knee. Specifically, the examiner opined: His right knee degenerative arthritis is not the result of his right foot injury, as due to his antalgic gait has placed less stress on his right knee and more on the left knee. Thus, his right knee degenerative arthritis is less likely than not the result of his right foot injury. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding the Veteran's right knee disability was incurred in service, is otherwise related to service, manifested within one year of active service separation, or was caused or aggravated by the service-connected right foot disability. As an initial matter, for certain chronic diseases, such as arthritis, the Board first considers entitlement to presumptive service connection under the provisions of 38 C.F.R. §§ 3.307(a)(3), 3.309(a). However, consistent with the evidence described herein, presumptive service connection is not warranted because the Veteran is not shown to have been diagnosed with arthritis within one year of separation from service; nor is there credible medical evidence of continuity of symptomatology from separation of service until he was diagnosed. As to direct service connection, the Board recognizes that the Veteran currently is diagnosed with degenerative joint disease. Thus, the first element of service connection is established. See Shedden, 381 F.3d at 1167. However, the evidence of record does not support the finding of the second and third required elements; specifically, an in-service event and a medical nexus between his current disability and active service. Here, the Veteran's STRs are devoid of any treatment for, or complaints related to, a right knee injury and he was determined to be medically sound upon separation from service. Indeed, the Veteran himself denied experiencing knee pain until roughly 1990 (See Hearing Transcripts) and in 1996 (See February 2008 Record); 19 and 25 years after active service. Moreover, the evidence of record is devoid of any documented treatment for, or documented complaints related to a right knee disability until 1997; 26 years after active service. Furthermore, the April 2013 VA examiner determined his age, weight, and occupation were the most likely causes of his degenerative condition. The Board notes that only the secondary service connection April 2013 VA opinion was inadequate as per the April 2020 JMR; thus, the direct service connection opinion is still adequate. Additionally, the evidence of record is devoid of any competent or credible medical evidence indicating his right knee disability is the result of active service and the Veteran himself has not provided the Board a theory of entitlement on a direct basis. As to secondary service-connection, the Veteran is service-connected for a right foot disability and thus fulfills the first element of secondary service connection. See 38 C.F.R. § 3.310. However, the evidence of record does not support the finding that his right knee disability was aggravated by, proximately due to, or the result of his service-connected right foot disability. Here, the Board acknowledges the Veteran's claim's that his service-connected right foot disability caused or aggravated his right knee disability. However, the April 2021 VA medical opinion determined his right knee disability was not related to his right foot disability since his "antalgic gait has placed less stress on his right knee and more on the left knee." Moreover, the evidence of record is devoid of any competent or credible medical opinion to counter the April 2021 VA opinion or indicating his right foot disability caused or aggravated his right knee disability. Indeed, the only evidence indicating his right knee disability was the result of active service or related to his service-connected right foot disability are the Veteran's own lay statements and claims. Lay evidence may be competent to establish medical etiology or nexus (Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)), but VA can give lay evidence whatever weight to which it concludes the evidence is entitled. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In this case, although the Veteran may believe his right knee disability is related to active duty service or to a service-connected disability, he is not competent to make such determinations, which are medical in nature. See Jandreau, 492 F.3d at 1372. Such opinions require specialized training and knowledge and are matters which are not capable of lay observation. As such, the Board finds the Veteran's contentions are of little probative value. In conclusion, the preponderance of the evidence is against finding the Veteran's right knee disability is related to active duty service or to a service-connected disability. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran's claim of entitlement to service connection for a right knee disability, to include as secondary to a service-connected right foot disability, is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.