Citation Nr: 22018053 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-01 153 DATE: March 28, 2022 ORDER Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a neck disorder is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran's left knee disorder began during active service or is otherwise related to an in-service injury or disease. 2. The evidence of record persuasively weighs against finding that the Veteran's right knee disorder began during active service or is otherwise related to an in-service injury or disease. 3. The evidence of record persuasively weighs against finding that the Veteran's neck disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right knee are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a neck disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board issued a decision denying, in relevant part, entitlement to service connection for a neck condition and entitlement to service connection for a bilateral knee condition. The Veteran subsequently appealed that part of the decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Memorandum Decision, the Court remanded the case to the Board for additional development consistent with the Memorandum Decision. Specifically, the Court remanded the claims because the Board decision failed to discuss a March 2015 private psychological examination report, which noted aspects of the Veteran's physical health. At that time, the Veteran reported tenderness along his shins and knee pain and that he suspected that he sustained a neck injury during service. In a July 2021, the Board issued a decision remanding the Veteran's claims for additional development. Specifically, the Board requested that the Veteran be scheduled for a VA examination to determine the etiology of the Veteran's knee and neck disorders. The Board's remand directives have been substantially completed. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that a VA Form 21-4142 Authorization for the Release of Medical Records form was mailed to the Veteran in July 2021. The Veteran did not respond to the Board letter. 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, 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, 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" the so-called "nexus requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With regard to the element of a current disability, current means near the time a claim is filed or at any time during its pendency. McClain v. Nicholson, 21 Vet. App. 319 (2007). Disability refers to the functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018) (holding that pain can constitute a current disability, even without an underlying diagnosis, if it causes sufficient functional impairment). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board must determine the value of all pertinent lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The evaluation of evidence generally involves three steps: competency, credibility and weighing the evidence as a whole. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2020). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n. 4 (Fed. Cir. 2007). However, laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). The Board must then determine if the evidence is credible; in determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 1. Entitlement to service connection for a left knee disorder 2. Entitlement to service connection for a right knee disorder As indicated in a November 2021 VA Knee examination, the clinical records establish that the Veteran does have an ongoing bilateral knee strain. As indicated in a February 2022 informal hearing presentation, the Veteran is seeking service connection for his bilateral knee disorder which was caused by his duties aboard his assigned vessel. In an October 2016 VA Form 9, the Veteran reports that he constantly banged his knees into hatchways while serving about the USS Worden in-service. The Veteran DD-214 Certificate of Release or Discharge notes a military occupational specialty of electrician aboard the vessel USS Worden. In an April 1970 entrance examination, Report of Medical Examination, a clinical evaluation revealed normal lower extremities. Similarly, in an April 1970 Report of Medical History, the Veteran reported in the negative for trick or locked knee, painful joint, or lameness. In a June 1973 Report of Medical Examination, a clinical evaluation revealed normal lower extremities. In a May 1978 separation examination, Report of Medical Examination, a clinical evaluation revealed normal lower extremities. In a May 2014 VA PTSD examination, under occupational history, the Veteran reported that he worked as a long shoreman for the past ten years, but it currently received workers compensation for the past five months due to a truck accident. The Veteran also reported past history employment as an electrician, interior communications specialist, and banker. In a March 2015 private psychological evaluation, the Veteran reported tenderness along his shins and knee pain which he attributes to his military service. In a February 2017 VA peripheral nerve conditions examination, the examiner noted the Veteran's knee extension as normal. In an October 2019 VA primary care note, the Veteran reported right knee pain when walking. In a June 2021 VA outpatient treatment note, the Veteran reported that his left knee dislocates. In a November 2021 VA knee examination, the Veteran reported that his knee disorder began during service and became progressively worse over time. The Veteran reported current intermittent knee pain with limited range of motion with pain in the left knee worse than the right knee. The Veteran also reported an inability to stand or walk for long periods of time. The examiner diagnosed the Veteran with a bilateral knee strain. Evidence of abnormal range of motion bilaterally with knee pain was noted by the examiner. 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 explained that the Veteran's right knee conditions in-service was acute only. There is no chronicity of care, and his symptoms were subjective only. The examiner also noted that the Veteran's STRs do not confirm ongoing treatment for a right knee condition during military service. The examiner explained that to confirm if the Veteran's current claimed condition had casual origins in-service or is directly related to his active duty service would be mere speculation. The examiner noted that the Veteran's entrance and separation examination were silent for the claimed knee condition. The examiner also explained that the March 2015 private psychiatric examination confirms complaints of the Veteran's knee disorder excessive years after military service. The Veteran is competent to report what happened in service as well as competent to report issues such as a bilateral knee disorder. See Jandreau v. Nicholson, 492 F. 3d at 1377, n. 4. However, the Board finds he reported no problems with his knees at his May 1978 separation examination. This was also noted by the November 2021 VA examiner. The Board assigns more weight to the VA opinion than the Veteran's assertion that he has had knee symptoms since service. As indicated by the November 2021 VA examiner, the Veteran was not treated for any knee problems in-service, nor did he report any knee problems at his 1978 separation examination. Moreover, the records indicate that the first evidence of ongoing knee problems was first noted in a March 2015 private psychological evaluation where he reported knee pain related to service. Apart from the Veteran's assertions, there is no positive clinical opinion in the record relating the Veteran's bilateral knee disorder to his time in-service. Importantly, in a May 2014 VA PTSD examination, the Veteran reported that he was in receipt of workers compensation for the past five months due to a truck accident. The impact of the Veteran's reported post-service vehicular accident as related to his bilateral knee disorder symptomology is worth noting as an intervening accident between the present and service. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As the claims file lacks evidence of a bilateral knee disorder related to the Veteran's time in-service, the Board finds that the evidence of the record indicates that the onset of the Veteran's bilateral knee disorder is not related an injury, event, or illness in-service. As a pathology for bilateral knee disorder has not been shown to be related to the Veteran's time in-service, the Board finds that the clinical evidence does not support the Veteran's contentions. Based on this evidence, the Board finds service connection is not warranted. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The benefit of the doubt rule is not applicable, and the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a neck disorder As indicated in a November 2021 VA neck examination, the clinical records establishes that the Veteran does have an ongoing, cervical strain. As indicated in a February 2022 informal hearing presentation, the Veteran is seeking service connection for his bilateral knee disorder which was caused by his duties aboard his assigned vessel. The Veteran's DD-214 Certificate of Release or Discharge notes a military occupational specialty of electrician aboard the vessel USS Worden. In an April 1970 entrance examination, Report of Medical Examination, a clinical evaluation revealed normal neck and spine findings. Similarly, in an April 1970 Report of Medical History, the Veteran reported in the negative for a history of a head injury. In a June 1973 Report of Medical Examination, a clinical evaluation revealed normal neck and spine findings. In a May 1978 separation examination, Report of Medical Examination, a clinical evaluation revealed normal neck and spine findings. In a May 2014 VA PTSD examination, under occupational history, the Veteran reported that he worked as a long shoreman for the past ten years, but it currently received workers compensation for the past five months due to a truck accident. The Veteran also reported past history employment as an electrician, interior communications specialist, and banker. In a March 2015 private psychological evaluation, the Veteran reported that he sustained a neck injury during his time in-service. In an April and May 2021 VA audiology vestibular note, the Veteran reported neck pain. In a November 2021 VA neck examination, the Veteran reported that his neck disorder began during military service and became progressively worse over time. The examiner noted crepitus with lateral neck range of motion. Abnormal range of motion was noted with evidence of pain and crepitus. The examiner diagnosed the Veteran with a cervical 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 explained that during service, the Veteran's cervical strain, was acute only. There is no evidence of chronicity of care and symptoms are subjective only. The examiner also noted that treatment notes do not confirm ongoing treatment for a neck condition during military service. The examiner noted that the claims file is silent for persistent or recurrent symptoms to confirm the claimed disorder. Therefore, the examiner determined that to confirm if the Veteran's current claimed disorder had causal origins in-service or is directly related to his active duty service would be mere speculation. The examiner determined that a nexus has not been established. The Veteran is competent to report what happened in service as well as competent to report issues such as a neck disorder. See Jandreau v. Nicholson, 492 F. 3d at 1377, n. 4. However, the Board finds he reported no problems with his neck at his May 1978 separation examination. This was also noted by the November 2021 VA examiner. The Board assigns more weight to the VA opinion than the Veteran's assertion that he has had neck symptoms since service. As indicated by the November 2021 VA examiner, the Veteran was not treated for any neck problems in-service, nor did he report any neck problems at his 1978 separation examination. Moreover, the records indicate that the first evidence of knee of ongoing neck problems was first noted in a March 2015 private psychological evaluation where he reported neck pain related to service. Apart from the Veteran's assertions, there is no positive clinical opinion in the record relating the Veteran's neck disorder to his time in-service. Importantly, the Veteran reported that he was in receipt of workers compensation for the past five months due to a truck accident. The impact of the Veteran's reported vehicular accident as related to his neck disorder symptomology is worth noting as an intervening incident between service and the present. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As the claims file lacks evidence of a neck disorder related to the Veteran's time in-service, the Board finds that the evidence of the record indicates that the onset of the Veteran's neck disorder is not related an injury, event, or illness in-service. As a pathology for neck disorder has not been shown to be related to the Veteran's time in-service, the Board finds that the clinical evidence does not support the Veteran's contentions. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elliot Harris 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.