Citation Nr: 22012259 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 17-28 904 DATE: March 3, 2022 ORDER Entitlement to service connection for left knee condition is denied. FINDING OF FACT The Veteran's left knee condition was not incurred in, and is not etiologically related to, his military service. CONCLUSION OF LAW The criteria for service connection for a left knee condition have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1976 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board denied the claim. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court vacated the Board's September 2019 decision and remanded the claim for action consistent with a Joint Motion for Remand (JMR). The Board remanded this claim in February 2021 and September 2021 to the agency of original jurisdiction (AOJ) for additional development. The Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for left knee condition The Veteran asserts that his left knee condition is related to his military service. He maintains that he injured his knee when he on a gangplank while in service, that he self-medicated, and that he sought treatment from the infirmary the following day. He maintains that he has experienced pain since that time. For the reasons that follow, the Board finds that the Veteran's service connection claim must be denied. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases manifesting to a compensable degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). This presumption is limited to those diseased listed in 38 C.F.R. § 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence of record, the Board acknowledges that the present disability element for service connection has been established. The evidence of record shows that the Veteran has been diagnosed with left knee strain. See July 2021 VA examination. Next, as to the second element of in-service incurrence, the Veteran contends that he injured his left knee during service while boarding his ship and hitting his knee on a scuttle that was left open. See September 2013 Statement in Support of Claim. He took over-the-counter medication for pain, but he did not seek medical help at that time as the incident took place late at night and there was no doctor onboard. Id. The next morning, the Veteran indicated that he reported to the infirmary and told them what happened. Thereafter, although he was in pain, he continued his duties. Id. The Veteran again recounted the incident in his May 2014 Notice of Disagreement. The Veteran's service treatment records (STRs) do not show any complaints, treatment or diagnosis related to his left knee. At May 1978 separation examination, the Veteran's knees were noted as normal. However, lay evidence cannot be found not credible solely due a lack of contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Further, the Board notes that the Veteran is competent to report pain because it is a lay-observable sensation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). As such, the Board finds the Veteran's statements as to his in-service left knee injury credible. Based on the foregoing, the second element of service connection has been met. With regard to the nexus element, the Veteran underwent a VA examination for his left knee condition in July 2021. At that time, the Veteran reported that while walking on the ship, he tripped on the gangway and hit his knee on the door. He sought medical care and he was given pills. On examination, as noted, the Veteran was diagnosed with a left knee strain. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner based this opinion on the fact that there is no evidence of in-service injury or pain complaints of either knee. The examiner noted that the Veteran's left knee complaints begun in 2014, which is 35 years after his time in service. The examiner explained that if the Veteran had a lingering injury from his time in service, the onset of pain would be earlier than 35 years after discharge. The examiner added that knee pain can be caused by age, obesity, and repetitive wear and tear over time. The Board accords high probative weight to the July 2021 VA opinion. The examiner considered all of the pertinent evidence of record, to include the Veteran's statements, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The objective evidence of record is also consistent with the examiner's conclusion. A review of the Veteran's post-service records shows that he first sought treatment for his left knee in December 2014. See VA treatment records. Further, medical treatment records furnished by the Social Security Administration (SSA) show that the Veteran had normal range of motion and lower muscle strength in both legs. See June 2006 SSA record. At that time, the Veteran reported a history of being in a "car wreck some ten years ago." In June 2013, straight leg test and knee flexion were noted within normal limits. See SSA records. An April 2014 private treatment record noted limp on the right, with negative straight leg raises to 90 degrees bilaterally and forward flexion was intact. While the Veteran indicated that he was treated at the San Diego Naval Hospital for his left knee condition, the Board notes that attempts made to obtain these records were unsuccessful. Pursuant to September 2021 Board's remand directives, the Veteran was notified of unsuccessful attempts to obtain these records in an October 2021 VA letter. The Veteran did not respond. The Board acknowledges the statements of the Veteran and his representative, asserting that his left knee condition is related to his in-service injury, and he has had pain in his knee since service. See January 2022 Written Brief Presentation. While the Board notes that the Veteran and his representative are competent to report his symptoms of pain and treatment received, they are not competent to offer an opinion to establish an etiological nexus between his current disorder and service or any event of service. Such is a complex medical question that requires medical training and expertise. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Veteran does not have the required medical training or expertise to create a causal connection. Further, as noted, the evidence of record shows that findings associated with his left knee were normal until 2014 and the Veteran received treatment for other conditions since his separation. The Board notes that the Veteran did not seek treatment for his left knee condition until 2014, many years after his separation. As such, the objective, persuasive evidence substantiates the July 2021 VA opinion. Thus, the Board finds the VA opinion more probative. The Board also acknowledges that the Veteran's medical records suggest that his left knee condition is related to, or had its onset during, his military service. See December 2014 VA treatment record. Nonetheless, the Board finds these records to be less probative as it appears this finding was based upon the Veteran's self-reported history. As explained above, the Veteran is not competent to make a determination whether or not his left knee condition is related to his military service. Additionally, there is no evidence to indicate, aside from the Veteran's general assertions, that his left knee condition stems from the reported incident on the ship while on active duty. As noted, the objective evidence of record shows that his left knee condition had its onset many years after his separation from active duty service. The Board has considered whether service connection is warranted based on the continuity of symptomatology framework. 38 C.F.R. § 3.303(b). However, the Veteran's left knee strain has not been shown to constitute a chronic disability under 38 C.F.R. § 3.309(a) as it is not one of the enumerated disabilities. Further, as noted, the Board finds that the evidence contemporaneous to the Veteran's service and following active service is more reliable in regard to the state of his health. Specifically, as noted, on his May 1978 separation examination, the Veteran's knees were noted as normal. The Board notes that the contemporaneous evidence as to his then-existing physical condition, such as his medical examination report (as opposed to his later statements of memory or belief to prove the fact remembered or believed) is particularly probative. See Fed. R. Evid. 803(3); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (providing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). In addition, the evidence of record shows that while the Veteran sought treatment for other conditions after service, he consistently failed to report any left knee pain, and only reported low back and foot pain. See November and December 2012 VA treatment records; see also September 2013 SSA records. It is reasonable to expect the Veteran to report ongoing left knee pain to his medical providers when seeking treatment for other musculoskeletal disorders. As such, even though the Board remains sympathetic to the Veteran's assertions, the evidence of record does not support his continuity of symptomatology statements. Further, as noted, in June 2006, the Veteran had normal range of motion and lower muscle strength in both legs. See SSA records. In June 2013, straight leg test and knee flexion were noted within normal limits. Id. In April 2014, a limp on the right was noted, with negative straight leg raises to 90 degrees bilaterally and forward flexion was intact. See private treatment record. As evidenced by the record, the Veteran's left knee condition did not manifest until many years after his separation from the military, contradicting his statements as to continuity of symptomology. Accordingly, consistent with other objective evidence of record, the July 2021 VA opinion outweighs any lay assertions that the Veteran's current left knee condition is related to his active military service, including continuity since service. In sum, the evidence weighs against a finding that the Veteran's left knee condition was incurred in, or is otherwise related to, active military service. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the more probative evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, supra. The appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.