Citation Nr: 22014876 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 19-29 244 DATE: March 15, 2022 ORDER Service connection for a right knee condition, to include arthritis, is denied. Service connection for a left knee condition, to include arthritis, is denied. FINDINGS OF FACT The Veteran's right and left knee condition are not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee condition, to include arthritis, have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a left knee condition, to include arthritis, have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to October 1984. The case is on appeal from a November 2018 rating decision. The Board remanded this matter in November 2020 Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (West 2014); 38 C.F.R. § 3.304 (b) (2015); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and aggravation by clear and unmistakable evidence. A "claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong," even if clear and unmistakable evidence establishes that a disease preexisted service. In other words, the "burden is not on the claimant to show that his disability increased in severity." To the contrary, the burden is on VA to "establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease." This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231 (2012). 1. Service connection for a right knee condition, to include arthritis 2. Service connection for a left knee condition, to include arthritis The Veteran maintains that he has current right and left knee conditions that were first incurred during service. He contends that the current conditions are the result of knee pain he suffered in boot camp, including an injury during that time. Board Hr'g Tr. 3. He testified that he had excruciating knee pain. Board Hr'g Tr. 3. He sought treatment, but the corpsman told him it was actually the calves and not the knees, which he did not understand since the pain was in the knees and not the calves. Board Hr'g Tr. 3. During the rest of his service, he became a fireman in engineering. Board Hr'g Tr. 3. This required him to work on his knees in very compact spaces. Board Hr'g Tr. 3. In one particular incident, he was rushing to respond to an alarm when his left foot became trapped in the rung of a ladder. Board Hr'g Tr. 3. He slid down five feet and fell down on his knees, although he did not report this injury. Board Hr'g Tr. 3. The swelling in his knees became progressively worse after that incident. Board Hr'g Tr. 3. Also, he had found it very hard on his knees when he had to jump aboard other vessels during listing sea conditions. Board Hr'g Tr. 5. He sought treatment approximately eight years after service. Board Hr'g Tr. 3-4. Eventually he underwent surgery to repair a torn meniscus. Board Hr'g Tr. 4. The orthopedic surgeon did not know when it was torn, but she said it could have been from service (and wrote a letter stating her opinion). Board Hr'g Tr. 4. The evidence of record, most recently a January 2021 VA examination, confirms current diagnoses of left knee meniscal tear and bilateral knee joint osteoarthritis. Private (non-VA) medical records confirm he underwent a procedure in October 2018 involving a left knee arthroscopy with partial medial meniscectomy, shaving chondroplasty and multi-compartment synovectomy. Thus, the current disability element for each knee is established. With regard to the events of service, the service treatment records (STRs) raise a question as to whether a knee condition preexisted service. Specifically, the Veteran's July 1974 enlistment examination is silent for a diagnosis in either knee, and the Veteran denied a history of all pertinent symptomatology. Because an extant knee condition was not noted at service entrance, the Veteran is presumed sound as to both knees. See 38 U.S.C. § 1111; Wagner, 370 F.3d at 1096. The enlistment examination, however, noted scars on each knee. The presence of scars suggests prior injuries to the knees, which raises a question of whether the Veteran had a preexisting knee condition. To this end, the Veteran sought treatment in August 1974 during his second week of service. He complained of pain in the knees after long periods of standing for one week. Physical examination showed positive findings, but knee x-rays were normal. The diagnosis was quad strain. He reported a past history of knee trouble about one year prior. He indicated that he was told at that time that he may have some calcium deposits under the knee cap. At his service separation in September 1984, he denied any related complaints, and his physical examination was negative. In its prior remand, the Board asked the Veteran to provide more details concerning the pre-service injuries and symptoms. He responded in January 2021. He wrote that he first injured his knees in the mid-1960s while riding a dirt bike. He had collided with a truck, which ejected him from the motorcycle. This caused "various road rash burns on both the knees" (and other parts of the body). He then described a second injury in the late 1960s during international travels. He was in a vehicle that hit a concrete foundation. This threw him into the dash and windshield of the vehicle. Both his knees left impressions in the metal dash of the vehicle due to the force of the impact. He explained that records of these events were no longer available. The only other relevant evidence appears in a private orthopedic surgeon's records from October 2018. At that time, the Veteran complained of the onset of left knee pain with an injury at least 40 years prior, followed by a 2000-pound saw falling on his leg back in the 1980s, with pain in the knee on and off "through the years." The Board finds that this evidence does not clearly and unmistakably establish a preexisting condition in either knee. The Veteran's January 2021 testimonial statement is evidence establishing the existence of the pre-service injuries. However, his statement does not indicate that any defects, infirmities, or disorders in either knee resulting from the pre-service injuries remained extant by service entrance. Likewise, the August 1974 treatment refers to knee trouble "about one year ago," but this phrasing suggests that the knee trouble was an isolated incident with no further knee symptomatology during the intervening time up to the point of his service entrance. More recently, the October 2018 medical consultation indicates an onset of symptoms 40 years prior. This is a very inexact timeframe. It generally corresponds to an onset in or around 1978. This would have been several years after the 1974 injury during basic training. Generally, however, it does not clearly and unmistakably suggest symptoms predating service. Thus, overall, the evidence does not clearly and unmistakably establish any exist defects, infirmities, or disorders in either knee by the time of service entrance. As such, the presumption of soundness cannot be rebutted. See Horn, 25 Vet. App. at 237-38; Paulson v. Brown, 7 Vet. App. 466 (1995). Because the presumption of soundness is not rebutted, the STRs establish in-service incurrence of a left knee injury and symptoms. The STRs do not establish the onset of a current diagnosis, including the presumptive condition, during service. X-rays were negative in August 1974. He underwent a reenlistment examination in June 1978, which was negative for all related symptomatology. His September 1984 service separation was also negative. In the Report of Medical History, the Veteran denied all related bone, joint, and knee symptoms. He also answered "no" where asked it he had any other illness or injury not otherwise noted. The Veteran now maintains that he had knee symptoms during service, including pain and swelling. However, the STRs, especially the separation examination, represent a contemporaneous statement as to his then-existing physical condition. Such statements (as opposed to his current statements of memory or belief to prove the fact remembered or believed) are recognized as possessing circumstantial guarantees of trustworthiness. See Fed. R. Evid. 803(3). Furthermore, where records are regularly kept for such a purpose, the absence of any record of an event or condition may be considered affirmative evidence of its nonoccurrence if the condition would normally have been recorded during the regularly conducted activity if it had occurred. See AZ v. Shinseki, 731 F.3d 1303, 1315-16, 1317-18, n.13 (Fed. Cir. 2013); Fed. R. Evid. 803(6), (7). Here, the separation examination is the type regularly kept for this purpose. Furthermore, by its very nature, this separation examination, including the questions asked on the medical history questionnaire, was intended to be a comprehensive accounting of the Veteran's past medical history. The Veteran now testifies that he was aware of knee symptoms during service when they occurred. Thus, it must be assumed that any complaints or abnormalities in either knee would have been reported and recorded if present. The Veteran also signed the Report of Medical History at service separation certificating that the history he provided was true and complete to the best of his knowledge. Hence, the Veteran's separation examination must be accepted as the credible and accurate account of his condition during service. Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015). Because the separation examination does not indicate the presence of any knee complaints or findings, it provides affirmative evidence that there were no ongoing knee symptoms or abnormality by the time of service separation. Any assertions to the contrary must be considered an inaccurate recollection. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). Tending to support an inference that his current recollection is inaccurate, the evidence of record points to the occurrence of an intervening, post-service injury occurring in 1986 (or 1989) wherein a 2000-pound saw fell on his knee in a work-related injury. The available post-service medical records repeatedly document the Veteran's report of his current knee problems beginning from the work-related injury in the 1980s or even more recently. For example, in May 2008, the Veteran reported to his VA primary care provider that he had a history of traumatic hemarthrosis on the right knee joint approximately ten years prior. The Board observes that this would have coincided with an event in approximately 1998, which was many years after his service separation in October 1984. In October 2012, the Veteran had VA physical therapy at which he reported the incident of onset being a 2000-pound saw falling on him in 1986. He explained that he was pushing it, it went in the wrong direction, a castor(s) fell off, and it pinned his left knee, broke his ankle, and caused a bolt to go through the leg. Again in July 2018, the Veteran reported to his VA primary care provider that he had left knee symptoms of approximately one week duration with a history since 1989 due to a work-related injury where the 2000-pound saw fell on the knee. He gave a similar history during VA treatment in September 2018. Then, during a private orthopedic consultation in October 2018, he complained of left knee pain onset with an injury at least 40 years prior, followed by a 2000-pound saw falling on his leg back in the 1980s, with pain in the knee on and off "through the years." At no point during these medical consultations did the Veteran expressly deny a history of symptoms since service. However, these medical consultations appear to be of the type regularly kept for this purpose, and it is reasonably assumed based on context that the Veteran was attempting to give a full and accurate accounting of his past history at each visit. It appears most reasonable to assume that the Veteran would have given a history of symptoms beginning from service if such had occurred. Therefore, his consistent and repeated account of symptoms beginning from the post-service, workplace injury tends to be more consistent with an affirmative admission that he did not have symptoms beginning from service or continuously since service. See Delrio v. Wilkie, 32 Vet. App. 232, 241 (2019); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Fountain, 27 Vet. App. at 274. In fact, the only account that might correspond with an onset of symptoms during service appears in the private orthopedic surgeon's October 2018 medical report. The Veteran gave a history of symptoms "at least 40 years ago." This would have been in approximately 1978, which would coincide with his service. However, in context, it appears the Veteran was referring to the 1986 injury and not the in-service, 1974 injury. The exact phrasing in the medical report was as follows: "The onset was with injury at least 40 years ago. He states he had a 2000 lb. [s]aw fall on his leg back in the 1980's." This phrasing tends to suggest that he was referring to the injury in 1986 rather than an unidentified earlier event, such as the injury in service. Thus, the October 2018 medical report cannot be reasonably interpreted as a positive statement from the Veteran placing the onset of his symptoms in service. The Board observes that the 1986 workplace injury occurred approximately two years after his October 1984 service separation. Such a timeline does not contradict his testimony that he had symptoms proximate in time to service. To the contrary, by inference, the onset of symptoms after the 1986 injury would have been in relatively close proximate time to service. Hence, the Veteran's current account placing the onset of his current symptoms in service appears more consistent with an inaccurate recollection of his past symptoms than an intentional misrepresentation. In either event, the contradictory evidence persuasively weighs against a nexus to service to the extent it is evidence showing that the Veteran attributed his symptoms to the intervening post-service injury. A nexus to service is not otherwise support. A private provider offered a positive opinion in June 2019. This provider detailed the Veteran's history of left knee pain for 40 years with the Veteran having reported symptoms first starting in basic training. The provider also acknowledged the post-service injury where the saw fell on his knee, "which further aggravated his symptoms." The examiner opined that it was "on a more likely than not basis that [the Veteran's] knee pain is linked to his service record." The Board finds this provider's opinion of limited probative value as the provider did not have a complete and accurate history upon which to base an opinion. For example, the provider made no mention of the pre-service history. It also appears that the examiner did not have the STRs to review. Although review of STRs is not always required, the STRs here contain detailed, pertinent information, including the clinical and diagnostic findings as to the initial injury in August 1974, but also the negative findings at service separation. Without accounting for this information, the factual foundation of the private provider's opinion can, at best, be considered incomplete. The examiner also did not appear to review (to the extent she did not identify or discuss) the contradictory evidence showing that the Veteran expressly and repeatedly attributed the onset of his post-service knee symptomatology to the 1986 workplace injury. Thus, the factual foundation of the opinion appears to be based entirely on a history provided by the Veteran. Because he has not been shown to be a reliable historian, a medical opinion based solely on his statements cannot be considered probative. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) A VA examiner in January 2021 opined that the Veteran's left and right knee condition was less likely than not related to service. The examiner reasoned that the Veteran had one complaint of knee pain in August 1974 with normal x-rays and nothing further until years after leaving service. The examiner pointed out that there is nothing on the separation examination about ongoing knee pain. The examiner also gave an opinion regarding the preexistence of the conditions, but pertinent here, the examiner reasoned that bilateral arthritis is a normal finding especially in the knees over time. According to the examiner, it is more likely than not that the work-related injury involving the left knee led to the meniscal tear and subsequent repair. The examiner pointed out that the right knee is mentioned in October 2012 when the Veteran had bilateral standing knee x-rays demonstrating minimal narrowing of the medial joint compartment of both knees, and the right knee was again referenced at an office visit in 2019 for a steroid injection. The examiner's opinion is persuasive. It was based on review of the relevant information in the file, and it provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner did not discuss the Veteran's account of his own history, but this is nonmaterial in light of the Board's finding that his statements attributing his current condition to service, including the onset of symptoms from service, are not reliable. Otherwise, there is no reasons or bases requirement imposed on examiners. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Hence, overall, this examiner's opinion is probative evidence against a nexus to service. The Veteran believes his knee conditions are related to service. The issue is medically complex, as it requires knowledge of knee anatomy, the potential risk factors for the current knee diagnoses, and the interpretation of complicated diagnostic medical testing. It is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner's opinion. Accordingly, the evidence is persuasively against the claims. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for right and left knee conditions is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.