Citation Nr: 22018017 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 15-16 185 DATE: March 27, 2022 ORDER Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right knee disorder is denied. FINDINGS OF FACT The evidence of record does not demonstrate that the Veteran's bilateral knee disorders were incurred in service, were present within one year after discharge from service, or are otherwise the result of military service, to include physical activity due to his duties such as jumping and going up and down ladders. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disorder are not met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right knee disorder are not met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from September 1953 to August 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In March 2021, the Veteran presented testimony at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. This case was previously before the Board in May 2021, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran indicated that he was stationed on the U.S.S. Kearsarge and worked on the flight deck for over a year where there were 8 to 12 aircraft sorties a day and he was required to clean and maintain the flight deck. The Veteran stated that his knees experienced trauma jumping, going up and down steel stairs, and performing his duties. He contends that he was not provided protective knee equipment which contributed to his current bilateral knee disabilities to include pain and numbness. The Veteran contends that his bilateral knee disabilities were due to active service. The record shows that the Veteran has current bilateral knee disabilities that include right knee arthritis, right knee synovial osteochondromatosis, left knee meniscal chondrocalcinosis, left knee osteopenia and bilateral knee strain. The first element of service connection is met. Respecting the in-service element, the Board reflects that, as noted above, the Veteran indicated that his knee disorders are the result of physical activityjumping and going up and down laddersduring military service. The Veteran also testified that he was treated for a foreign body in the knee. He also indicated that he was transferred from his flight deck duties to a clerical position as a result of his knee problems in military service. Initially, the Board reflects that the Veteran's service treatment records do indicate that the Veteran had a foreign body was removed from the Veteran's upper right leg in September 1956 while on U.S.S. Redstart. The Veteran was hurt when replacing a spring in a staple machine. The spring or staples punctured his upper right leg. The Veteran's service records do not show any complaints, treatment, or diagnoses of bilateral knee disorders during active service. The August 1957 clinical evaluation for lower extremities were normal upon separation from service. There were no findings on the separation examination with regards to the Veteran's knees. Insofar as the Veteran indicated during the appeal that he had a foreign body removed from his knee during military service, the Board finds that the Veteran's statements are not credible of any knee injury of such a nature during military service. Although the Veteran did have a foreign body (staple or spring from a stapler) removed from his right upper leg, there is no evidence that such injured his right knee. The Veteran's statements in this regards are therefore not credible. Further, the Veteran indicated that he worked on the flight deck for over a year, where he was required to clean and maintain the flight deck. The Veteran indicated that these duties resulted in knee problems and that he was subsequently reassigned to a clerical position during military service as a result of those knee issues. The Board also finds these statements to be not credible of any in-service injury. The Board reflects that the Veteran's service personnel records demonstrate that the Veteran's military occupational specialty (MOS) was as a clerk typist and that he worked as a cashier. There is no evidence in these records that the Veteran worked on the flight deck of the USS Kearsarge (there was no flight deck on the USS Redstart). Moreover, the Board reflects that the Veteran's service records are devoid of any evidence of treatment or complaints of his knees in service, or any evidence that such injuries resulted in a MOS transfer while on the USS Kearsarge. Insofar as the Veteran offered these statements as evidence of in-service knee injuries, the Board finds such to be not credible. Finally, however, the Board does find that element twoin-service disease, injury or eventhas been met in this case. The Board does note that the Veteran served aboard two ships; even in his MOS as a clerk typist, such types, places and circumstances of service would require jumping and going up and down ladders while aboard those vessels. Consequently, the Board does find that the Veteran's statements as to injury in service to this extent are competent and credible; therefore, the second element of service connection is met in this case to this extent. The Board will therefore solely focus on the third, nexus, element in this case. The Board finds that a nexus is not established between the Veteran's current disability and active service. There are opinions of record on this point. At the February 2017 VA examination, the Veteran was diagnosed with right knee arthritis, right knee synovial osteochondromatosis, left knee meniscal chondrocalcinosis, and left knee osteopenia. The examiner opined that the bilateral knee disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner indicated that the review of military records does not specifically show any evidence of military related injury to the right knee during his time in service. At the March 2021 virtual hearing, the Veteran testified that in his work capacity as a flight deck attendant, he would go up and down spill ladders about five or six times a day. He further testified that his knees started getting worse due to his work activity. He stated that he fell two or three times on the steel net. The Veteran indicated that he ran up and down the stairs in boots which caused knee pain. He testified that his knee pain continued after service, and he did not take any medication. Later, he admitted that the VA doctors prescribed pain medication. The Veteran stated that he got reassigned to an office job due to the physical nature of his work. He stated he was treated for a foreign body in the knee. At the July 2021 VA examination, the Veteran was diagnosed with bilateral knee strain. The examiner opined that the bilateral knee disabilities are at least as likely as not had their onset in, or otherwise related to, active service or caused by bilateral knees during service. On examination, the Veteran reported that he did a lot of kneeling, crouching, climbing of stairs while in the service. He also reported multiple falls while on active duty, but these were not reported. He also reported that he was changed to a clerical position by his commander due to his ongoing symptoms of numbness, tingling, and pain to his legs and knees. It is likely that the bilateral strain developed while on active duty. Repetitive movements placed strain on his knees like when crouching, kneeling, or climbing. Also, these repetitive movements could have resulted in fatigue contributing to poor body mechanics, further exacerbating the condition. The Veteran has credible lay statements as mentioned in the March 2021 Board hearing testimony regarding the onset of his claimed bilateral knee disorder. The description of his duties on the ship and what may have contributed to the condition are feasible and likely. The Agency of Original Jurisdiction (AOJ) requested clarification on the July 2021 VA examination. The July 2021 examiner did not reflect the prior bilateral knee diagnoses on the examination. Therefore, the examiner was asked to provide an opinion as to whether the prior diagnoses had resolved or whether they still exist, especially since flexion is so limited. The examiner was also asked to explain whether flexion was limited to the knee strain only. Further, since the bilateral strain was not reflected on the February 2017 VA examination along with the other listed diagnoses, the examiner was asked to explain when did the Veteran begin to suffer from bilateral knee strain as this condition was not diagnosed on the February 2017 VA examination. Based upon this information, the AOJ asked for opinions on direct service connection regarding the Veteran's bilateral knee disorders considering the Veteran's statements regarding the onset of his knee pain on the ship and his Board hearing testimony. The July 2021 examiner did not follow up on the clarification request and another examiner responded to the AOJ request. The August 2021 examiner opined that the Veteran's bilateral knee disabilities were less likely as not incurred or caused by the claimed in-service injury, event, or illness. The examiner stated that after a review of the history as detailed by the medical records, it is his opinion that the claimed bilateral disabilities diagnosed as bilateral knee strain, right synovial osteochondromatosis, meniscal chondrocalcinosis, osteopenia, and an old healed distal left tibia were less likely than not incurred in or caused by an in-service injury, event, or illness. A review of the medical records does not show that the Veteran was evaluated for knee pain while in service. The Veteran's statements have been reviewed. He stated in the Board testimony hearing that he had knee pain after service but that he did not seek evaluation, nor did he take over-the-counter medication for his knee pain. While it is possible that the Veteran experienced knee discomfort after service, it is less likely that the current knee pain is due to service. The records do not show evidence of chronicity and the lack of severity of the symptoms (not requiring evaluation or medication) as detailed by the Veteran makes it unlikely that the condition has continued until now. Therefore, it is less likely that the bilateral knee strain disabilities are due to the Veteran's time in service. Further, the examiner stated that he is unable to determine exactly when the knee strain condition began as the July 2021 exam is the first time that it was mentioned in the records. However, it is likely that the bilateral knee conditions are a progression of the previous knee injuries. Moreover, the examiner indicated that after a review of the conflicting medical records, it is his opinion that the Veteran continues to have the diagnoses of right knee synovial osteochondromatosis, left knee meniscal chondrocalcinosis, left knee osteopenia and old healed distal left tibia. These conditions are chronic. Therefore, it was likely an error that they were not included in the July 2021 VA examination. Initially, the Board acknowledges the Veteran's statements that his knee disorder began in or are the result of military service. Insofar as such statements can be considered medical opinion, the Board finds that the Veteran has not demonstrated the required medical experience or expertise to render such a medical opinion in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Furthermore, insofar as the Veteran's statements are lay statements that he is competent to make regarding the onset and chronicity of his symptoms, the Board finds such statements competent but not credible. As noted above, the evidence of record demonstrates that the Veteran's statements regarding knee problems during service and a reassignment due to those knee problems during service is not credible. Instead, the Board notes that that there is no evidence of any knee problems during military service or at separation from service, or for many years after military service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). In fact, the Veteran's own statements during his hearing is that, although he experienced pain in his knees, he "just walked it off," and did not seek any medical treatment with a doctor or even take over the counter medications to treat his pain. The Veteran's statements, along with the other evidence of record demonstrating no knee problems in service, at separation, within one year of discharge, or indeed for many years after military service make the Veteran's other statements in the record regarding ongoing pain since service internally inconsistent and not credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lack of contemporaneous medical records does not, in and of itself, render lay testimony not credible. As a finder of fact, though, the Board may weigh the absence of contemporaneous records when assessing the credibility of the lay evidence.); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). Consequently, the sole competent evidence with regards to the nexus element in this case are the July 2021 and August 2021 VA examiners' opinions. The Board acknowledges that the July 2021 examiner's opinion does find a link to service. However, that examiner's opinion was incomplete and required clarification with regards to the diagnosed conditions that were related to military service, as well as the date of onset of the condition that was related to military service. That examiner further did not address the Veteran's separation examination hat the Veteran had no lower extremity issues upon departure from service and/or the post-service treatment and evaluation of the Veteran's bilateral knee disabilities. Thus, the Board finds that opinion to be not credible and to have no probative value as it appears to be based on an inaccurate factual premise. See Guerrieri v. Brown, 4 Vet. App. 467 (1993) (the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion affects the weight or credibility of the evidence). As such, the only competent and credible evidence is the August 2021 examiner's medical opinion in this case. In this regard, the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, addressed the clarifications for the July 2021 medical opinion, and provided supporting rationale for the conclusions to be reached. As such, the August 2021 VA opinion is the most probative evidence of record. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, based on the evidence of record at this time, the Board must conclude that the Veteran's bilateral knee disorders were not incurred in or otherwise the result of military service in this case. As such, service connection for bilateral knee disorders must be denied. See 38 C.F.R. §§ 3.303, 3.307, 3.309. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.