Citation Nr: 22018127 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-12 369 DATE: March 28, 2022 ORDER Entitlement to service connection for a left knee disability, to include as secondary to service-connected residuals of traumatic right knee injury with degenerative joint disability, is denied. FINDING OF FACT The evidence does not show that the Veteran's left knee disability is either proximately due to or aggravated by his service-connected right knee disability, had its onset during active duty service, manifested within one year of separation, or is otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in November 2019, May 2021, and November 2021 for further development. The Board is satisfied that there was substantial compliance with the prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) The Veteran testified at a Central Office hearing before the undersigned in August 2019. A transcript is of record. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected residuals of traumatic right knee injury with degenerative joint disability, is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166 67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases, which include arthritis, a presumption of service connection arises if the disease is manifested to a compensable degree within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic disabilities, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a disability was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). Service treatment records do not show complaints of, treatment for, or a diagnosis for a left knee disability. They do show that the Veteran reported and received treatment for psychiatric issues during service. In a December 1975 VA examination, the Veteran reported that his left leg gave out on him and that he could not climb up when needed. He stated that he had problems with his knees, especially his left knee, but that he injured his right leg while playing football. The examiner found that examination of the left leg and knee showed entirely normal findings. It was further noted that the Veteran could not recall which knee he had injured. In a November 2009 VA examination, the Veteran reported injuring his right knee while playing football during service. Upon physical examination, there was no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding of movement in the left knee. Examination of left knee revealed no locking pain, genu recurvatum, crepitus, or ankylosis. In a February 2015 VA examination, the Veteran reported flare ups that impacted the function of the knee, to include difficulty with prolonged sitting, standing, walking, stooping, and bending. Upon initial range of motion testing, the Veteran had full range of motion in the left knee with no objective evidence of painful motion. There was no additional loss of range of motion upon repetitive use testing. There was no tenderness or pain to palpation, reduction in muscle strength, joint instability, history of recurrent patellar subluxation or dislocation, shin splints, meniscal condition, or knee surgeries for the left knee. Functional impact included limited activity due to range of motion loss and/or pain during flare ups. The examiner found that there was no diagnosis for the left knee because there was no pathology. At a hearing with a Decision Review Officer, the Veteran asserted that his left knee condition was either secondary to or worsened by his service-connected right knee. In a January 2017 VA examination, initial range of motion testing showed full range of motion in the left knee with no pain noted on examination. There was no additional loss of range of motion upon repetitive use testing. There was no reduction in muscle strength, muscle atrophy, ankylosis, instability, or a meniscal condition for the left knee. At the August 2019 hearing, the Veteran reported that he put most of his support on his left knee to try to balance himself, so he walked "almost like a duck." He had not been diagnosed with a left knee disability, but he had pain in the left knee. The Veteran's wife reported that she could see that he was in pain because of how he walked. She also saw him rubbing his knee. At the January 2020 VA examination, the examiner found that the Veteran was diagnosed with bilateral knee osteoarthritis. The Veteran had bilateral knee pain, but he did not report flare ups or functional loss. Upon initial range of motion testing, the Veteran had full range of motion in the left knee with no pain noted on examination. There was no additional loss of range of motion upon repetitive use testing. There was no tenderness or pain on palpation, pain with weight bearing, crepitus, reduction in muscle strength, muscle atrophy, ankylosis, instability, shin splints, or a meniscal condition for the left knee. The examiner opined that it was less likely than not that the Veteran's left knee disability was due to his active service. He found that bilateral knee x-ray studies showed findings suggesting an old left patellar injury. While the Veteran reported a mild injury to the left knee during service, he could not recall the specifics. He did not require any significant treatment or incurred loss of time from work at that time. Additionally, there were no records in the file confirming any injury to the left knee. There was not enough objective evidence to relate the Veteran's current left knee condition to an in-service injury, event, or illness. The examiner also opined that it was less likely than not that the Veteran's left knee disability was due to or aggravated by his service-connected right knee disability. He noted that there was no indication that the Veteran's left knee pain was associated with his right knee discomfort. Further, the Veteran's left knee symptoms were consistent with a diagnosis of osteoarthritis, which was most likely due to an old left knee injury. In a June 2021 VA examination opinion, the January 2020 VA examiner opined that it was less likely than not that the Veteran's left knee condition was due to service. There was no documentation of a left knee injury or treatment. The examiner found that the Veteran's osteoarthritis was most likely age-related upon noting that x-ray findings showed that his arthritis was equal bilaterally. The examiner also opined that it was less likely than not that the Veteran's left knee disability was due to or aggravated by his service-connected right knee disability. He stated that the Veteran's osteoarthritis was most likely age-related. In a December 2021 VA examination opinion, another VA examiner opined that it was less likely than not that the Veteran's left knee disability was due to his service-connected right knee disability. There was no clear evidence from review of orthopedic literature 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 five centimeters so that the individual's gait pattern has been altered. The examiner found that this level of severity not supported by the record or history or exam. It was not unusual for two joints to share properties in the same person, but one joint's disease did not "spread" to another or cause damage to it. Therefore, the Veteran's left knee degenerative arthritis less likely than not related to his right knee. The examiner found that she could not determine a baseline level of severity of the Veteran's left knee disability, but still found that it was less likely than not that it was aggravated by his right knee disability. She noted that the Veteran's current symptoms of pain and swelling were a natural progression of the degenerative arthritis of the left knee. There was no identified condition that was beyond the natural progression of the disorder. According to post-service VA treatment records, the Veteran reported knee problems while playing football. In July 2014, x-ray studies showed that he had mild degenerative changes bilaterally. According to post-service private treatment records from March 2004 to October 2012, the Veteran had bilateral lower extremity edema, pain, and swelling. The records showed that from March 2004 to January 2011, the Veteran had left lower extremity thrombophlebitis and deep vein thrombosis. However, in March 2004, he denied joint pain and he did not have effusion or warmth in his left lower extremity joints. In May 2010, the Veteran had left flank pain which seemed more related to his spine and spinal stenosis. In October 2012, he complained of a lump on his left anterior knee. Based on a careful review of the subjective and clinical evidence, the Board finds that the evidence persuasively weighs against finding service connection for a left knee disability is warranted. As an initial matter, the evidence shows that the Veteran has a current diagnosis of left knee osteoarthritis. However, there still must be a showing of a nexus to service. The evidence does not show any evidence that the Veteran's left knee osteoarthritis manifested within one year of separation from service. Rather, the Veteran was diagnosed with left knee osteoarthritis in July 2014. Therefore, the Board finds that the Veteran is not entitled to service connection on a presumptive basis under either 38 C.F.R. § 3.307 (a)(3) or under 38 C.F.R. § 3.303 (b) for continuity of symptomatology. Service treatment records do not show complaints of, treatment for, and a diagnosis of a left knee disability. The Board acknowledges that the Veteran reported injuring both of his knees during service while playing football. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511 12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). The Board notes that while service treatment records show that the Veteran was treated psychiatric issues, they do not show that he complained of or sought treatment for a left knee condition. Further, a more contemporaneous December 1975 VA examination shows that the Veteran reported injuring only his right leg while playing football despite also reporting then current left leg issues. In light of the evidence, the Board finds that the Veteran's statements as to his in-service left knee injury are inconsistent with the evidence of record contemporaneous to service, lack credibility, and therefore, are entitled to no probative weight. Id. The Board finds that the January 2020, June 2021, and December 2021 VA opinions are persuasive as to the etiology of the Veteran's left knee disability. Specifically, the January 2020 and June 2021 VA examination opinions are persuasive as to whether the Veteran's left knee disability was due to his service, the June and December 2021 VA examination opinions are persuasive as to whether the Veteran's left knee disability was due to his service-connected right knee disability, and the December 2021 VA examination opinion is persuasive as to whether the Veteran's left knee disability was aggravated by his service-connected right knee disability. The examiners based their opinions on a thorough review of the Veteran's medical records, consideration of the Veteran's lay statements, and medical research. Significantly, the VA examiners provided opinions that were supported by a fully articulated rationale. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board finds that the persuasive evidence of record shows that the Veteran's left knee osteoarthritis did not have its onset during service, was not secondary to his service-connected right knee disability, or was otherwise etiologically related to service. Significantly, neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection for a left knee disability. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board notes that lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of left knee disabilities, to include arthritis, the issue of causation of such medical disabilities is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the Board recognizes the Veteran's lay assertions that his left knee disability was due to his right knee disability, but finds that the Veteran is not competent to provide such a medically complex etiological opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board finds that the Veteran's lay assertions are not competent to provide a medical link between his left knee disability and service-connected right knee disability. Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's left knee disability is related to his right knee disability, it has not uncovered any credible evidence which supports such a connection and the Veteran lacks the medical expertise to competently determine the etiology of his left knee disability. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a left knee disability is warranted. Rather, the evidence persuasively weighs against finding in favor of the Veteran's service connection claim for a left knee disability. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, Associate 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.