Citation Nr: 22015652 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 17-09 384 DATE: March 18, 2022 ORDER Entitlement to service connection for a right knee disability, to include as secondary to Gulf War exposures, is denied. FINDING OF FACT The Veteran's right knee disabilities are not secondary to his service-connected left knee disability, and are not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a right knee disability, to include as secondary to Gulf War exposures, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1980 to January 1990 and from September 2001 to October 2002. Most recently, in July 2021, the Board remanded the Veteran's service connection claims for a chronic cough disability and a right knee disability for additional development. Pursuant to the remand orders, the VA examinations and opinions were obtained in September 2021 regarding the Veteran's service connection claims for a cough disability and right knee disability. In an October 2021 rating decision, the RO granted the Veteran's claim for a cough disability. As this grant is considered a full grant of benefits sought on appeal, this issue is no longer before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the only remaining issue is the Veteran's service connection claim for a right knee disability. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a veteran must show: "(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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service 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). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Service connection may be presumed for Persian Gulf Veterans' undiagnosed illnesses, medically unexplained chronic multisymptom illnesses, and any diagnosed illness that the Secretary of VA determines in regulations warrants a presumption of service connection. 38 U.S.C. § 1117(a); 38 C.F.R. § 3.317 (2018). A chronic disability must have manifested either during active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2021, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms such as: (1) chronic fatigue syndrome (CFS); (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i) (2018). Therefore, service connection may be granted on a presumptive basis if there is evidence (1) that the claimant is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as CFS, fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (4) that the symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317 (2018). In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Further, lay persons are competent to report objective signs of illness. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more, the condition must be rated by analogy to a disease or an injury in which the functions affected, anatomical location or symptomatology are similar. 38 C.F.R. § 3.317(a)(5); Stankevich v. Nicholson, 19 Vet. App. 470 (2006). If signs or symptoms have been attributed to a known clinical diagnosis, service connection may not be established under the specific provisions applicable to Persian Gulf War Veterans. A Persian Gulf veteran is a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1) (2018). The Southwest Asia Theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2) (2018). Initially, the Board notes that the Veteran had service in in the Gulf War during the applicable period, and meets the definition of a Persian Gulf War veteran. Therefore, the provisions of section 3.317 are applicable. However, the Board notes that the Veteran has specific, diagnosed conditions for his right knee as discussed below. In addition, in the March 2015 Gulf War general VA examination, the examiner noted that the Veteran had no diagnosed illnesses for which no etiology was established, to include his right knee condition. Therefore, service connection for a right knee disability may not be granted on a presumptive basis. The Board will therefore consider below whether he is otherwise entitled to service connection for a right knee disability. 1. Entitlement to service connection for a right knee disability, to include as secondary to Gulf War exposures, is denied. The Veteran contends that his right knee disability is related to his military service, to include exposure to environmental hazards during the Gulf War. Alternatively, the Veteran contends that his right knee disability is related to his service-connected left knee disability. At the outset, the Board notes that the Veteran has diagnoses of right knee joint osteoarthritis and bilateral suprapatellar calcific tendonitis. See October 2019 VA examination. The Veteran also has a diagnosis of right knee degenerative arthritis and patellar tendonitis. See September 2021 VA examination. Therefore, the first element of service connection, a diagnosis, has been met. As to an in-service occurrence, as noted above, the Veteran contends that his right knee disability is due to exposure to environmental hazards during the Gulf War or, in the alternative, secondary to his service-connected left knee disability. Given the Veteran's competent and credible statements, the Board finds that the second element of service connection has been met. Therefore, the only remaining issue is whether a nexus may be established on either a direct or secondary basis. As to a nexus, in October 2016, the VA examiner opined that the Veteran's patellofemoral pain syndrome is less likely than not related to toxic or environmental exposure in the Gulf War area, stating that the factors contributing to its development are not related to toxic or environmental exposures. Rather, she stated that his patellofemoral pain syndrome is a "chronic overuse condition" likely caused by mechanical overload of, malalignment of, and/or trauma to the patellofemoral joint. In October 2019, the VA examiner opined that the Veteran's osteoarthritis and tendonitis are less likely than not related to his active duty service because his service treatment records do not document any chronically recurring right knee complaints or any significant right knee injuries. He stated that the October 2014 x-rays showing calcification of the suprapatellar joint are the earliest indication of a right knee problem. Because of this, the examiner opined that his currently diagnosed knee problems likely developed after his active duty service. The October 2019 VA examiner also opined that the Veteran's right knee disability is less likely than not caused or aggravated by his service-connected left knee disability. He stated that there is insufficient medical evidence showing that his right knee pathology, including calcific tendonitis and osteoarthritis, resulted from his left knee pathology. He further stated that any potential alteration in gait due to a limp or favoring one knee changes the forces on the contralateral knee to an insignificant level. The examiner stated that injury, age, and/or wear and tear are more likely causes of the Veteran's right knee disability. In September 2021, the VA examiner opined that it is less likely than not (less than 50 percent probability) that his right knee degenerative arthritis and patellar tendonitis is related to the Veteran's military service, including environmental exposure or his service-connected left knee. The examiner stated that there was no objective evidence showing that the Veteran's right knee issue started while on active duty. There were no complaints, treatment, or diagnosis of the right knee in his service treatment records. The examiner also stated that right knee degenerative arthritis and patellar tendonitis are musculoskeletal conditions. The examiner concluded that the etiology of this conditions is likely secondary to excessive stress and strain on the right knee joint and are not associated with specific exposures in Southwest Asia. Therefore, the examiner concluded that the Veteran's right knee degenerative arthritis and patellar tendonitis are less likely than not associated with any specific exposures experienced by the Veteran in Southwest Asia. The September 2021 VA examiner also noted that the Veteran's right knee is not related to his left knee, based on his gait being within normal limits. The examiner noted that there is no evidence based on the medical history, exam, and medical records that his left knee condition resulted in the right knee condition. The Board finds the October 2016, October 2019, and September 2021 VA opinions, taken together, highly probative, as they are based on an accurate medical history and provide an explanation that contains clear conclusions with supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the assessments offered are uncontroverted by objective or competent opinion evidence in the record. Lacking a nexus on either a direct or secondary basis, entitlement to service connection for a right knee disability is not warranted. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, 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.