Citation Nr: 21042195 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-55 452 DATE: July 12, 2021 ORDER Service connection for a right knee disorder is denied. Service connection for a left ankle disorder is denied. FINDINGS OF FACT 1. The Veteran's right knee disorder did not onset due to injury sustained during a period of service. Right knee degenerative arthritis did not manifest in service, was not continuous since service and was not shown to a compensable degree within one year of separation from service. 2. The Veteran's left ankle disorder did not onset due to injury sustained during a period of service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria to establish service connection for a left ankle disorder have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1987 to June 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by the RO. Most recently, in June 2020, the Board remanded the claims on appeal for additional development. Specifically, the Board instructed the RO to obtain an addendum opinion as to the nature and etiology of the claimed right knee and left ankle disorders. In August 2020, the VA physician offered opinions as to the etiology of the claimed right knee and left ankle disorders. Thus, the requested development has been completed and the case is returned to the Board for further appellate adjudication. The issues of service connection for a right knee disorder and a left ankle disorder will be denied, because the probative medical evidence of record does not show that either disorder was caused by or incurred in-service. Service Connection Service connection may be granted for a current disability resulting from a disease or injury incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires (1) 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Further, where the Veteran claims service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). As arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology and of 38 C.F.R. § 3.307 pertaining to presumptive service connection for chronic disease apply to the issue of arthritis. In deciding an appeal, the Board must analyze the competency, 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. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept. It means that the person who makes the statement is qualified by training, education, an occupation, or other reason to make the statement. Credibility is a factual determination it involves deciding whether the testimony or other evidence is believable. Whether a statement is credible is decided after the evidence has been found competent. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, medical professionals are generally competent through training and experience to express opinions about whether a disability was caused during active service. Generally, the opinions of medical professionals such as doctors, psychiatrists, nurses, and others who work in the health care field are evaluated by their apparent training, as well as the detail of their reports and knowledge of the facts in individual cases. Medical professionals may also report various findings of laboratory studies and testing that could be evidence in a claim, such as the level of hearing impairment, blood tests, range of motion testing in joint pain, etc. If a person making a statement is not medically trained (a "layperson"), the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which a layperson's statement may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed through the use of his senses, not medical expertise. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Service connection for a right knee disorder is denied. The Veteran contends that his right knee condition is related to his service. For the following reasons, service connection is not warranted, and the claim will be denied. Service treatment records show treatment for right knee pain in June 1988 and a right knee sprain with swelling in May 1989. However, in his May 1989 report of medical examination at separation, clinical evaluation of the Veteran's lower extremities was normal. There was no indication of any knee condition. In an August 2013 VA treatment record, the Veteran reported ongoing knee pain for years. Although the duration of the reported knee pain was not specified, his "problem list" showed bilateral knee pain since 2007. During a February 2014 VA examination, the Veteran reported that his right knee symptoms began in 1988 when he twisted his right knee while running down a hill. The examiner diagnosed right knee early degenerative changes, but found that the Veteran's right knee condition was less likely than not incurred in or caused by his service. The examiner discussed the May 1989 in-service right knee injury and the August 2013 VA progress note, and stated that based on the history, physical examination, and review of medical records, the Veteran's right knee condition could not be service-connected as there was insufficient evidence. However, as discussed in the June 2020 Board remand, the February 2014 VA opinion is inadequate for adjudication purposes, because the VA examiner did not support the provided medical opinion with supporting rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). During the August 2020 VA examination, the examiner noted the Veteran's in-service right knee treatment in June 1988 and May 1989. The examiner opined that there is a less than 50 percent probability that the Veteran's current right knee degenerative joint disease was caused by or incurred in-service. The examiner noted that there are two documented instances of knee complaints in-service; however, the examiner explained that the May 1989 report of medical examination does not show any persistent knee problem and there is no further documentation of right knee complaints until August 2013. Though the Veteran has current right knee degenerative arthritis, the preponderance of the evidence is against a finding of a linkage between the onset of the right knee degenerative arthritis and a period of service. Rather, the evidence shows that there is a less than 50 percent probability that the Veteran's current right knee degenerative arthritis was caused by or incurred in-service because the in-service complaints were self-limited and the Veteran had no further knee complaint or diagnosis until 14 years after his discharge from service. (See August 2020 VA examination report). See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability). Accordingly, the claim of service connection for a right knee disorder will be denied. This conclusion is probative as it is based on facts presented by both the service treatment records and the assertions made by the Veteran at the time of the VA examination. Also, notably, there is no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between the current right knee disorder and a period of the Veteran's service. Additionally, there is no evidence of right knee degenerative arthritis in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1339. No examiner in service, or since, has established chronicity or an underlying chronic disease process in service. In sum, characteristic manifestations sufficient to identify the disease (arthritis) entity were not noted. As the service treatment records lack the documentation of the combination of manifestations sufficient to identify right knee degenerative arthritis and sufficient observation to establish chronicity during service, then a showing of continuity of symptomatology is another way to establish service connection. 38 C.F.R. §§ 3.303(b), 3.309; Walker, supra. However, the Board does not find the Veteran's statements as to continuity of symptomatology credible. There is no corroborating evidence to support the Veteran's claim that he has experienced a right knee disorder since service. Indeed, an August 2013 VA treatment record reflects the Veteran had knee pain since 2007. That stated, the post-service record is silent as to complaints, treatment, or diagnoses of any right knee degenerative arthritis until decades after separation from service. Thus, the Veteran's statements as to continuity of symptomatology since service are not credible and are thus afforded little probative value. For these reasons, service connection for right knee degenerative arthritis cannot be awarded on a presumptive basis. 38 U.S.C. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303(b), 3.307, 3.309. The Veteran is competent to state that he hurt his right knee during service playing sports, running and in a fall. However, he is a lay person and is not competent to establish that his current right knee degenerative arthritis onset as a result thereof. The Veteran is not competent to offer opinion as to etiology of any current right knee disorder. The question regarding the etiology of such disability is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claim of entitlement to service connection for a right knee disorder must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). 2. Service connection for a left ankle disorder is denied. The Veteran contends that his left ankle disorder is related to his service. For the following reasons, service connection is not warranted, and the claim will be denied. A December 1988 service treatment record reflects treatment for a left ankle sprain sustained while playing basketball. However, in his May 1989 report of medical examination at separation, a clinical evaluation of the Veteran's lower extremities was normal. There is no indication of any ankle condition. Approximately 23 years after his service discharge, a March 2012 VA treatment record documents treatment for a left ankle sprain sustained while the Veteran was playing basketball. He was also treated approximately two weeks later for the left ankle sprain. However, an August 2013 VA treatment record indicates that the Veteran's left ankle sprain had resolved in 2012. During a February 2014 VA examination, the Veteran reported having symptoms since 2011. The examiner noted a diagnosis of left ankle sprain. The examiner opined that the Veteran's left ankle condition was less likely than not incurred in or caused by his service. The examiner noted the December 1988 in-service treatment for a left ankle sprain, and explained that based on the Veteran's history, the physical examination, x-rays, and review of medical records, the Veteran's current left ankle condition could not be service-connected as there was insufficient evidence. However, as above, and as discussed in the June 2020 Board remand, the February 2014 VA opinion is inadequate for adjudication purposes. An August 2020 VA examiner noted a diagnosis of left ankle lateral collateral ligament sprain. The examiner noted the Veteran's in-service left ankle treatment in December 1988 after the Veteran twisted his ankle while playing basketball. The examiner opined that there is a less than 50 percent probability that the current left ankle sprain was incurred in or caused by the Veteran's left ankle sprain in-service. The examiner explained that there was a mild sprain noted in December 1988 that had no documented sequelae subsequently during service, and that the sprain in March 2012 that occurred while the Veteran was playing basketball was considered clinically resolved in the August 2013 VA medical assessment. Though the Veteran has a current left ankle disorder, the preponderance of the evidence is against a finding of a linkage between the onset of the left ankle disorder and a period of service. Rather, the evidence shows that there is a less than 50 percent probability that the Veteran's current left ankle disorder was caused by or incurred in-service because the in-service left ankle sprain resolved and there was no recurrence of symptoms until the Veteran sustained injury playing basketball in 2012 (i.e., the current left ankle disorder clearly onset from a basketball injury sustained in 2012). (See August 2020 VA examination report). See Maxon v. Gober, 230 F.3d at 1333 (Fed. Cir. 2000). Accordingly, the claim of service connection for a left ankle disorder will be denied. This conclusion is probative as it is based on facts presented by both the service treatment records and the assertions made by the Veteran at the time of the VA examination. Also, notably, there is no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between the current left ankle disorder and a period of the Veteran's service. (Continued on the next page) The Veteran is competent to state that he hurt his left ankle during service playing basketball. However, he is a lay person and is not competent to establish that his current left ankle sprain onset as a result thereof. The Veteran is not competent to offer opinion as to etiology of any current left ankle disorder. The question regarding the etiology of such disability is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claim of entitlement to service connection for a left ankle disorder must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). G. Jackson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart 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.