Citation Nr: 22014047 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 19-21 405 DATE: March 11, 2022 ORDER Entitlement to service connection for a right knee disability is denied. FINDING OF FACT The evidence is persuasively against finding that the Veteran's has a current right knee disability that manifested as a chronic disease within a year from discharge from active duty, that there is a continuity of symptomatology since service, or that it was incurred in or otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1985 to March 1988. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2017 rating decision issued by the Department of Veterans Affairs (VA). See August 2018 Notice of Disagreement (NOD); May 2019 Statement of the Case (SOC); July 2019 Substantive Appeal (VA Form 9). In October 2019, the Board remanded the claim to afford the Veteran an opportunity for a VA examination. October 2019 Board Decision. In June 2021, the Board remanded the claim again because the VA examiner's opinion obtained on remand did address the Veteran's lay statement that his knee swelled from the wear and tear during service as directed by the Board. June 2021 Board Decision. In October 2021, the Board remanded the claim again because the Veteran's lay statements were still not considered by the VA examiner. October 2021 Board Decision. The agency of original jurisdiction (AOJ) developed the evidence and continued the denial of the Veteran's claim. See November 2021 Supplemental Statement of the Case (SSOC). The Board notes that the Veteran's claim of entitlement to service connection for bilateral hearing loss was denied in the June 2021 Board decision. That claim is, thus, no longer in appellate status before the Board. Entitlement to service connection for a right knee disability. The Veteran asserts entitlement to service connection for a right knee disability as caused by his in-service duties and physical training, including carrying up to 50 pounds while marching during boot camp, ongoing physical training, and walking on a ship in boots. July 2018 Correspondence. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. § 3.303. Service connection is established when there is 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, e.g., Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Certain chronic diseases, such as osteoarthritis, which are manifested to a compensable degree within one year of discharge from active duty, shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. See 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, if a chronic disease listed at 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) is noted during service or the presumptive period, but not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As an initial matter, the Board finds that there has been substantial compliance with the prior remand directives. See October 2019 Board Decision; October 2021 Board Decision; October 2021 Board Decision. The claims file shows that the Veteran was provided a VA examination for his knees and that there are findings and opinions from a VA examiner that adequately addresses the evidence, including the Veteran's lay statements. October 2019 VA Examination for Knee and Lower Leg Conditions; August 2021 VA Examination for Knee and Lower Leg Conditions; November 2021 VA Examination Medical Opinion. After careful and thorough review of the evidence, the Board finds the evidence is persuasively against finding the Veteran has a current right knee disability that manifested as a chronic disease within a year from discharge from active duty, that there is a continuity of symptomatology since service, or that it was incurred in or otherwise related to service. The evidence shows that the Veteran has a current right knee disability, diagnosed as mild patellofemoral degenerative joint disease. October 2019 VA Examination Radiology Interpretation. However, the medical evidence does not support that the condition manifested as a chronic disease within a year of discharge from active duty. Service treatment records show no complaint or treatment for a right knee condition. No right knee defect was noted during the Veteran's separation medical examination and his clinical evaluation specifically found normal lower extremities. February 1988 Report of Medical Examination. The Veteran also reported having no "trick" or locked knee. February 1988 Report of Medical History. The first medical evidence of a knee problem was in 2016, almost 30 years after separation. September 2016 VA treatment evidence. This evidence is highly against finding that the Veteran's right knee patellofemoral degenerative joint disease manifested within a year from separation from active duty or that there has been a continuity of symptomatology since separation. The Board also considered the Veteran's statement that he is having problems with "swelling of the knee" due to his in-service activities, which include carrying 50 pound duty bags while marching during boot camp, the continuing physical training, and walking on ships while wearing boots. July 2018 Correspondence. First, the Board notes that the Veteran's statement appears to indicate that his knee swelling is a current symptom that he believes is caused by wear and tear during service, not that it was a symptom he noticed during service. See id. Even assuming that the Veteran is asserting that he had knee swelling during service, in weighing and balancing the veracity of the Veteran's statements, the Board finds that the statements of the Veteran made during his February 1988 separation examination to be more probative than that made many years later. The earlier statements were made contemporaneous to the event that would have been for the purposes of diagnosis or treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). In addition, the November 2021 VA examiner opined that it is highly unlikely that a significant knee condition during service would have gone unnoted or unreported given the rigors of military service. November 2021 VA Examination Medical Opinion. The Board finds the Veteran's statement during his 1988 separation examination more persuasive for these reasons and that they are against finding his right knee patellofemoral degenerative joint disease manifested within a year from separation from active duty or that there has been a continuity of symptomatology since separation. The Board has also considered whether the evidence otherwise supports that the Veteran's right knee patellofemoral degenerative joint disease was incurred in or caused by service. As discussed above, the service treatment records show no complaint or treatment for a right knee disability and the Veteran specifically noted that he did not have a knee condition during separation. In addition, the November 2021 VA examiner opined that the Veteran's right knee disability was less likely than not incurred in or caused by service. November 2021 VA Examination Medical Opinion. The examiner rationale is that there is no evidence of a right knee condition during service, the Veteran clearly did not have complaints or findings of a knee condition during separation, and the medical evidence shows no complaint of a knee problem until 2016. Id. The examiner also opined that it is implausible that the Veteran would have served three years with a knee condition without medical documentation of treatment. Id. The examiner opined that the Veteran's right knee patellofemoral degenerative joint disease is more likely a naturally occurring age-related disease, which is appropriate for the Veteran's age at the time of its diagnosis. See id. The VA examiner is a medical professional qualified to evaluate the cause of the Veteran's right knee disability and his opinion is supported by a detailed rationale. The Board finds the VA examiner's findings and opinion to be highly probative for these reasons. The Board considered the Veteran's lay statements that he believes his right knee disability is due to the wear and tear during service. July 2018 Correspondence. While the Veteran is competent to report having experienced observable knee symptoms, the causation of the symptoms falls outside of the realm of knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, supra. The Board finds the Veteran's statements about the cause of his current right knee disability to be of limited probative value because this determination involves a complex medical question. Id. In addition, while the Veteran is competent to report having knee swelling, as discussed above, the Board finds the Veteran's report of having no knee issue during his separation examination to be more probative. The Board also considered the Veteran's representative's condition that the documented October 1985 treatment for a tooth fracture and facial trauma from falling from a ladder could also have resulted in a knee injury. November 2021 Third Party Correspondence. The representative also contends that the Veteran's report of having leg cramps could be describing a strain in his knees. September 2020 Third Party Correspondence. However, the representative indicates that it is only "possible" the Veteran injured his knee during the documented fall on a ladder, and that reported leg cramps "could be" describing strain in his knees, and the Veteran has not asserted this to be case. Moreover, as discussed extensively above, the medical and lay evidence is persuasively against finding that the Veteran had a right knee condition during service. Lastly, the Board gives more weight to the Veteran's specific notation on his February 1988 Report of Medical History that he had no tricked or locked knee over a possible presumption that a reported cramp in his legs is actually about his knee. The Board finds that the persuasive weight of the evidence is also against finding that the Veteran has a current right knee disability that was incurred in or caused by service. (Continued on next page) Accordingly, entitlement to service connection for a right knee disability is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.