Citation Nr: 21042242 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-63 486 DATE: July 12, 2021 ORDER Entitlement to service connection for a right knee disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's right knee disability is related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1963 to April 1966. In July 2019, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans' Appeals (Board) in January 2020 and February 2021 for additional development. It now returns for further appellate review. 1. Entitlement to service connection for a right knee disability The Veteran contends that his current right knee disability is related to his active service parachute jumps including one full combat jump. See July 2019 Board Hearing Transcript. Legal Criteria Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While 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. Relevant Facts and Analysis The Veteran's diagnosis of right knee degenerative arthritis was confirmed at the August 2015 VA Examination. See August 2015 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). The August 2020 VA examination also confirmed that the Veteran underwent a total knee arthroplasty in March 2016. See August 2020 VA Knee and Lower Leg Conditions DBQ. Thus, the first element of service connection, a current disability, has been met. Regarding the second element of service connection, an in-service injury or event, the Board notes that the Veteran's service treatment records (STRs) are silent for any complaints or treatment for a right knee injury. For instance, a September 1965 treatment record for cellulitis of left hand and forearm indicated a normal clinical lower extremities evaluation as the Veteran was assigned "1" for his "lower extremities" in the PULHES evaluation. See October 1965 Clinical Record. The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456 (1992)). Additionally, during the April 1966 separation examination, the Veteran denied any arthritis, bone or joint deformity, and trick or locked knee. See April 1966 Report of Medical History, STR-Medical. The Veteran also had a normal clinical examination of his lower extremities. See April 1966 Report of Medical Examination in STR-Medial. However, the Veteran has provided competent and credible lay statements that he injured his knee during active service as a result of his parachute jumps and full combat jump. See July 2019 Board Hearing Transcript. Specifically, the Veteran stated he completed a total of 17 to 18 total jumps and one full combat jump with a rifle and backpack. Id. The Board notes that the Veteran's Form DD 214 confirms he received a Parachute Badge, which also supports the Veteran's contentions. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, based on the Veteran's competent and credible lay statements, the second element has been established. The question for the Board is whether there is a nexus between the Veteran's current right knee disabilities and his in-service injury. In January 2020, the Board found that the August 2015 VA medical opinion was inadequate for failing to address the Veteran's lay statements. Similarly, the Board found that the August 2020 VA examination report did not directly address the Veteran's lay statements and was inadequate. See February 2021 Board Remand. As such, the Board will not discuss the August 2015 and August 2020 VA medical opinions. Pursuant to the February 2021 remand, the VA obtained an addendum medical opinion for the Veteran's right knee disability in April 2021. The examiner opined that the Veteran's right knee disabilities were less likely than not related to service. See April 2021 VA Medical Opinion Disability Benefits Questionnaire (DBQ). In so doing, he acknowledged the Veteran's report that he injured his knees while participating in 17 parachute jumps including two (2) full combat jumps, and his report of right knee pain in 1968 while running. However, he noted that the Veteran's service records were silent for right knee complaints or treatment and that "4/19/1966 separation report of medical examination lower extremity exam[] was negative and did not show a right knee condition." Id. The examiner also noted that the Veteran denied the query whether he had a trick or locked knee in the April 1966 report of medical history in concluding that the evidence "[s]uggest[ed] the reported right knee complaint in 1968 was acute only and the veteran did not sustain any major right knee injury during service." Id. The examiner also stated that the earliest post-service treatment record for right knee complaint was in 2011 and that "there is no evidence of an ongoing chronic right knee condition until greater than 40 years post service." Id. Based on these factors, the examiner opined that it was less likely than not that the Veteran's current right knee disabilities are "the result of accumulated trauma sustained during active duty as a result of parachute jumps because there is no significant right knee injuries, a negative separation examination and a post service gap of greater than 40 years." Id. The Board finds that the April 2021 VA medical opinion is entitled to great probative weight. The opinion considered the Veteran's reports, the medical evidence, and provided an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran was diagnosed with right knee degenerative arthritis in 2011, over four decades after separation from service. While the Veteran is competent to report having right knee symptoms since service, he is not competent to provide a diagnosis in this case or determine the etiology of his right knee disabilities. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing and development of orthopedic conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Based on the aforementioned, the Board gives more probative weight to the April 2021 VA examiner's opinion. Notably, the Veteran has not provided any additional medical evidence that establishes a nexus between his current right knee disability and his in-service injury. Accordingly, the Board concludes that, while the Veteran has current diagnoses of right degenerative arthritis and status post total knee arthroplasty, and evidence shows that he was sustained an injury during active service while performing parachute jumps, the preponderance of the evidence weighs against finding that the Veteran's right knee disabilities began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Board also considered whether the Veteran's right knee degenerative arthritis was entitled to presumptive service connection. Arthritis will be presumed to be incurred in service if it manifested to a compensable degree (meaning 10 percent disabling) within one year after discharge from service. See 38 U.S.C. § 1110, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). However, the record does not show that the Veteran was diagnosed with degenerative arthritis within one year of separation from service in April 1966. In fact, the Veteran was not diagnosed with degenerative arthritis until August 2011 (see August 2011 VA primary Care Note in CAPRI received March 2015), which is approximately 45 years after active service. Therefore, the Veteran did not establish that his degenerative arthritis was a chronic condition for the purpose of establishing presumptive service connection. Alternatively, as to continuity of symptomatology, the Board does not find that this was established. Taking into consideration the Veteran's lay statement that his current disability is related to service due to his symptoms over the years, the Board finds that April 2021 VA medical opinion is more probative. The April 2021 examiner stated that the Veteran's STRs were silent for right knee treatment or complaints, and that he denied a trick or locked knee during his April 1966 separation examination which suggests that the veteran did not sustain any major right knee injury during service." See April 2021 VA Medical Opinion DBQ. The examiner also stated that the earliest post-service treatment record for right knee complaint was in 2011 and that "there is no evidence of an ongoing chronic right knee condition until greater than 40 years post service." Id. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). \ The Board acknowledges the Veteran's testimony that he sought treatment for a right knee injury after service and continued treatment throughout the years during the July 2019 Board hearing. However, he did not recall when he first sought treatment. Additionally, the Veteran's representative submitted a statement in March 2021 that the "[V]eteran is unable to provide information regarding his private medical treatment prior to 2011." See March 2021 VA Form 21-4138. She explained that the Veteran sought ot obtain records but was told records had been destroyed. Id. Unfortunately, the evidence of record does not establish that the Veteran continuously sought treatment for a right knee complaint prior to 2011. Moreover, in looking at the Veteran's in service examinations, his lower extremities were considered normal upon clinical evaluation, and he reported that he did not have swollen or painful joints, broken bones, arthritis, bone , joint or other deformity, trick or locked knee, was specifically asked whether he had knee problems, and he did not report that he had such. Notably, the September 1965 treatment record indicate a normal clinical lower extremities evaluation as the Veteran was assigned "1" for his "lower extremities" in the PULHES evaluation. See October 1965 Clinical Record. The Board finds that this weighs against the Veteran's lay statement of continuous pain since an in-service injury. In fact, the April 2021 examiner reported his review of the Veteran's STRs and there was no report of any problems with his knees and the Veteran denied having any knee, bone, or joint problems during his separation examination. Accordingly, the Board concludes that the preponderance of the evidence is against the claim and entitlement to service connection for a right knee disability must be denied. 38 U.S.C. § 5107 (b)(2012); Gilbert v. Derwinski, 1 Vet. App. at 54-56. Given such, the benefit-of-the-doubt doctrine is not applicable. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.