Citation Nr: 22018107 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 14-34 642 DATE: March 28, 2022 ORDER Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability, is denied. Entitlement to service connection for a right leg skin disability (claimed as shingles) also is denied. FINDINGS OF FACT 1. The earliest post-service clinical evidence of psoriasis, shingles (herpes zoster), and right knee complaints is not for more than a decade after the Veteran's separation from service. 2. The most probative (meaning most competent and credible) evidence of record is against finding that he has a right knee disability and/or a right leg skin disability (including psoriasis and shingles (herpes zoster)) that began during his military service, or that manifested within a year of his discharge from service, or that otherwise was caused or aggravated by his service or service-connected disability. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a right knee disability or a right leg skin disability (including psoriasis and shingles (herpes zoster)). 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from November 1971 to August 1979. These claims were previously before the Board in June 2018 and August 2021, but they were remanded back to the local Regional Office (RO), so back to the Agency of Original Jurisdiction (AOJ), for further development and consideration, including since "inextricably intertwined" with another claim also then on appeal but that since has been denied, and for medical nexus opinions concerning the origins of these additionally claimed disabilities particularly in terms of whether attributable to the Veteran's service or a service-connected disability. There since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). A June 2011 VA memorandum made a formal finding that some of the Veteran's service treatment records (STRs) are unavailable. When, as here, at least a portion of the service records cannot be located, through no fault of the Veteran, VA has a "heightened" obligation to more fully discuss the reasons and bases for its' decision and to carefully consider applying the benefit-of-the-doubt doctrine. See, e.g., O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In this circumstance, however, the threshold for allowance of a claim is not lowered and the need to still have probative medical nexus evidence causally relating the current disability being claimed to service or to service-connected disability is not eliminated. Rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claims for service connection by suggesting a correlation between his claimed conditions and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare, 1 Vet. App. at 367). Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303. In addition, certain "chronic" diseases including arthritis will be presumed to have been incurred in service, absent an intervening ("intercurrent") cause, if they were shown as chronic in service or if they manifested to a compensable degree within a year following separation from service, or if they were noted in service (or within the presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Also, according to 38 C.F.R. § 3.310, service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability although in the latter instance compensation is limited to the disability specifically owing to the aggravation. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Entitlement to service connection for a right knee disability The Veteran is in receipt of service connection for traumatic arthritis of his left knee that has resulted in surgical replacement of this knee with prosthesis. He contends that he additionally has a right knee disability secondary to his service-connected left knee disability (see September 2002, July 2011, and June 2012 VA Form 21-4138, Statement in Support of Claim). In deciding this claim, all potential theories of entitlement must be considered. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). So, to this end, the Board has considered whether service connection is warranted on a direct basis, presumptive basis, as well as on a secondary basis, but finds that it is not warranted on either basis. Service connection on a secondary basis On June 30, 2009, the Veteran had left knee total arthroplasty. His admitting diagnosis was noted to include bilateral knee psoriatic arthritis and degenerative joint disease (DJD), i.e., degenerative arthritis, so two types. In an April 2012 VA Disability Benefits Questionnaire (DBQ), the Veteran reported that his knee buckles and swells approximately three times a week, and that he has a popping sound in his right knee. On examination, he did not have full flexion, but he had it to 110 degrees albeit with painful motion beginning at that point. Normal flexion is to 140 degrees. See 38 C.F.R. § 4.71, Plate II. But, to give the range of motion he had some context and perspective, consider that flexion limited to 110 degrees is still nearly twice the flexion, so well beyond, what is required for even for the most minimum 0 percent according to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260, requiring flexion limited to no more than 60 degrees. A September 2019 DBQ shows a diagnosis of right knee degenerative and psoriatic arthritis. The examiner found no evidence in the medical records that the Veteran's right knee disability was due to his left knee disability. The examiner also surmised the right knee arthritis seems to have worsened because of the psoriasis, and that it is less likely than not related to the left knee disability. The examiner found no records that the Veteran's right knee disability was worsened by his left knee disability. In sum, it was the examiner's opinion that it is less likely than not the Veteran's right knee disability is secondary to meaning either caused or aggravated by his left knee disability. A December 2021 DBQ comes to the same conclusion namely, that it is less likely than not the Veteran's right knee disability is secondary to his left knee disability. The examiner stated, in pertinent part, as follows: There is no clear evidence from a review of orthopedic literature (Wheeless' Textbook of Orthopedics) to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individual's gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. This level of severity is not supported based on record review, history, or exam. It is not unusual for two joints to share properties in the same person, but one joint's disease does not 'spread' to another or cause damage to it. Therefore, the right knee disability is less likely than not (less than 50 percent probability) related to the total left knee arthroplasty (Oxford's Textbook on Orthopedics and Trauma). A nexus has not been established In sum, the evidence is against service connection on a secondary basis. Service connection on a direct-incurrence basis The Veteran began serving on November 30, 1971. Two weeks later, a December 15, 1971, STR recounts that he had complaints of locking of both knees; he reported that, when it had happened in the past, he had to walk stiff-legged and sometimes fell over. The impression was a strain. A May 1974 STR reflects that the Veteran reported that both knees had swelled up the prior night. After evaluation, the diagnosis was chondromalacia. The Veteran's May 1979 Report of Medical Examination for separation purposes notes that his lower extremities were normal except for a torn left lateral meniscus. If he also had chronic (meaning permanent) right knee disability, it stands to reason that it, too, would have been noted, but it clearly was not. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely held view that absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Veteran also reported that, to his knowledge, he was in the "best" of health. There is no indication of psoriatic or degenerative arthritis in the Veteran's right knee within a year of his separation from service so by August 1980. There resultantly is no presumption either form of arthritis onset during his service or even within this permissible one-year grace period following conclusion of his service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). More than two decades after separation from service, an October 1997 Marion County Medical Center record cites a history of "status post right knee arthroscopic surgery for a meniscal tear"; however, the Board sees the meniscal tear instead was in the contralateral left knee (see, e.g., May 1979 Report of Medical Examination and 1980 VA Form 10-10m, Medical Certificate and History), which was not noted in the 1997 medical history. Thus, the Board can reasonably find that the notation of a prior right knee meniscal tear was in error and instead meaning to reference the prior left knee meniscal tear. But even assuming for the sake of argument that it was correctly referencing the right knee, any such meniscal tear would have been after service since it was not noted during the Veteran's service including when separating from service. In July 1998, the Veteran was given an x-ray to rule out a fracture of his right knee, thus, indicating that something may have occurred in 1998 or sometime prior. The x-ray was negative, however (see Marion County Medical Center record). Assuming he had complaints referable to his right knee to warrant that x-ray, that still was approximately two decades after his separation from service. That long a lapse of time between his separation from service and the earliest documentation of this now claimed disability is a factor for consideration in deciding this service connection claim and tends to refute the notion this disability dates back to his service or is otherwise related or attributable to his service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy period following service during which there is no clinical documentation of the now claimed condition). An October 1998 record notes that the Veteran was motivated to lose weight because he had to pass a police academy physical to stay at his job (corrections officer). The record is unremarkable for concerns of a right knee despite the notation that the Veteran was to undergo a physical. An August 1999 private record for a chief complaint of chest pain, notes that that the Veteran has a history of coronary artery disease, diet-controlled diabetes, hypercholesterolemia, tobacco abuse, and hypertension. A review of systems was remarkable for a lump on his testicle, and the Veteran's report of "occasional stiffness and pain in his left knee." The report is unremarkable for chronic complaints of the right knee. The Board finds that if the Veteran had right knee complaints, it reasonably would have been noted. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013). The Veteran filed for service connection for a right knee disability in September 2002, but he failed to provide clinical evidence of a right knee disability. A March 2006 VA record reflects that the Veteran sought treatment for bilateral knee pain. His knees demonstrated mild varus deformity with full range of motion, normal strength, and normal patellofemoral tracking. It was noted that "radiographs revealed mild varus gonarthrosis." Thus, prior to his left knee total replacement, he had right knee complaints. However, they have not been shown by clinical records to be chronic since service or to be related to his in-service complaints. A July 2009 VA record notes that the Veteran had bilateral psoriatic arthritis and degenerative joint disease. However, a June 2010 VA radiology record reflects a negative right knee. A September 2011 VA record notes that the Veteran had right knee psoriatic arthritis, and that new x-rays showed no changes, and although they showed scattered psoriasis, there was "no osteolysis". A June 2012 record notes that he has right knee pain from inflammatory arthritis. An October 2013 VA radiology record notes that joint space demonstrated retropatellar narrowing the suprapatellar spur formation. The impression was patellofemoral degenerative changes. A January 2022 DBQ reflects the opinion of the examiner that it is less likely as not that the Veteran had a right knee disability causally related to service. The examiner's opinion was based on the STRs, as well as the lengthy lapse of time between service and a diagnosis. In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support the presence of a claimed disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records. In other words, the mere absence of evidence does not necessarily equate to unfavorable evidence. There are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias...."). In this case at hand, not only is there the absence of clinical records, but the Veteran has not credibly contended continuity of symptoms since his service, and his 1979 Report of Medical Examination for separation purposes was unremarkable for any right knee disability. Moreover, there is not a probative clinical opinion (i.e., based on review of the records and with adequate rationale) that it is as likely as not that a current right knee disability is related to his service. In sum, the evidence is against service connection on a direct-incurrence basis. The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his disability, including in terms of whether related or attributable to anything that occurred during his time in the military or a service-connected disability. This determination is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Since the most probative and therefore most persuasive, evidence is against this claim (on all potential bases), not instead in "approximate" (nearly equal) balance, the benefit of the doubt rule is not applicable. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for a right leg skin disability In his July 2011 claim, the Veteran stated that he had shingles on his right leg; he did not explain how this may be related to his service or a service-connected disability. In the August 2021 remand, the Board expanded this claim to include his diagnosis of psoriasis. The Veteran's STRs are unremarkable for shingles or psoriasis. He was noted to have athletes' feet in April 1972, and an April 1976 STR notes a cyst/mass on a testicle, but no finding as to a skin disability which was pervasive, or on the legs. The Veteran's 1978 Dental Patient Health Questionnaire shows that he did not circle that he had ever had a skin condition/rash/hives. However, another STR in April 1978 reflects that the Veteran was diagnosed with seborrheic dermatitis and prescribed a shampoo; it was noted that he had the butterfly distribution of the rash for six years. When the Veteran was diagnosed with seborrheic dermatitis, which is a skin disability, he was examined by a dermatology clinic, which reasonably would have noted shingles or psoriasis if he had either of those conditions. A January 1979 STR notes that the Veteran had a rash and a cold. He was diagnosed with an upper respiratory infection (URI). The Veteran's May 1979 Report of Medical Examination for separation purposes reflects that the Veteran's skin was normal upon evaluation. His only identifying mark was a tattoo. The Board finds that if the Veteran had shingles, psoriasis, or any skin disability upon separation it reasonably would have been noted upon evaluation, rather than his skin found to be normal. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013). More than two decades after separation from service, a January 2002 Marion Medical Group record shows the Veteran reported a worsening rash on his lower extremities; he had patches of psoriasis. Again, that long a lapse of time between his separation from service and the earliest documentation of this now claimed disability is a factor for consideration in deciding this service connection claim and tends to refute the notion this disability dates back to his service or is otherwise related or attributable to his service. A June 2011 VA dermatology record notes that the Veteran reported that he had a history of psoriasis since he was a young man (the Board notes it was not shown in service; the Veteran separated from service at age 24). The June 2011 record further notes the Veteran reported that he had been started on Humira "3 months ago" for psoriatic arthritis. He reported that approximately "4-6 weeks ago" he developed herpes zoster (i.e., shingles). The examiner discussed with the Veteran the "etiology of his problem, and the possibility that herpes zoster was triggered by the initiation of Humira." Thus, the evidence reflects that more than three decades after his separation from service, he began taking medication for a nonservice-connected disability, which in turn may have triggered shingles. There is no probative indication the Veteran has any skin disability involving his right leg that is as likely as not causally related to his service or service-connected disability. (He is in receipt of service connection for an acquired psychiatric disability, traumatic arthritis resulting in left knee replacement, and tinnitus, but none have been shown to require Humira as a modality of treatment.) A January 2022 DBQ reflects a diagnosis of psoriasis. The examiner noted that psoriasis is a chronic inflammatory diseases of the skin that is triggered by an immune response caused by an infection, injury, or toxin that causes the skin and/or joint symptoms to flare along with systemic inflammation that can affect other part so the body. The DBQ does not address whether the Veteran's has a skin disability which is as likely as not causally related to service, as this opinion was not requested. (Rather the examiner has been asked to opine as to the relationship, if any, between a right knee disability and psoriasis. However, as the Veteran is not in receipt of service connection for a right knee disability, the opinion is not necessary.) An opinion as to direct service connection is not warranted as there is not an indication of a relationship. The Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the veteran with a medical examination or to obtain a medical opinion occurs when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In the present situation, there is not the indication that there may be an association. In addition, there is not continuity of symptoms because the Veteran did not have a skin disability upon separation. In sum, the Veteran was diagnosed with psoriasis and shingles many years after separation from service and there is no probative opinion (i.e., based on a review of pertinent clinical records and with adequate supporting rationale) that either disability, or any other skin disability, is as likely as not related to service or a service-connected disability. The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his disabilities, including in terms of whether related or attributable to anything that occurred during his time in the military, or a service-connected disability. Service connection is not warranted for a skin disability. Since the most probative and therefore most persuasive, evidence is against this claim, not instead in approximate (nearly equal) balance, the benefit of the doubt rule is not applicable. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.