KNEE IMPAIRMENT OF

Summary

The veteran, who served from September 1978 to September 2000, appeals the denial of service connection for a left knee disability. The veteran has a current diagnosis of left knee arthritis, confirmed by a December 2020 VA examination. However, the service treatment records only show a single instance of treatment for left knee pain in May 1982, with no further complaints or diagnoses related to the left knee during the remainder of his service. The retirement examination in March 2000 indicated normal lower extremities and the veteran denied any knee complaints at that time. While the veteran later claimed continuity of symptoms and sought treatment from private physicians and VA facilities, the Board found these assertions less credible due to inconsistencies with contemporaneous service records and the significant gap between service and any diagnosed left knee condition. The Board found the December 2020 VA examination opinion, which concluded the arthritis was less likely than not related to service, to be more probative than a private physician's opinion from 2016. The VA opinion was supported by the negative service treatment records and the lack of continuity of symptoms. Therefore, service connection for the left knee disability was denied.

Rationale

Single instance of treatment for left knee pain in service; No further complaints or diagnoses in service treatment records; Veteran denied knee problems at retirement examination; Lack of continuity of symptomatology; VA opinion found more probative than private opinion

Full Decision Text

Citation Nr: 21024330
Decision Date: 04/22/21	Archive Date: 04/22/21

DOCKET NO. 16-03 600
DATE: April 22, 2021

ORDER

Service connection for a left knee disability is denied.

FINDING OF FACT

The Veteran’s claimed left knee disability, to include arthritis, was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service event, injury or disease.

CONCLUSION OF LAW

The criteria for service connection for a left knee disability have not been satisfied.  38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1978 to September 2000.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by a Department of Veterans Affairs (VA) regional office.  In September 2018, a hearing was held before the undersigned Veterans Law Judge.  In May 2019, the remaining issue on appeal was remanded for an examination of the Veteran.  

Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

VA has established certain rules and presumptions for chronic diseases, such as arthritis.  See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).  With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim.  38 C.F.R. § 3.303(b).  In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a).

The Veteran has a current left knee disability.  For example, at his December 2020 VA examination he was diagnosed with left knee arthritis, which was confirmed by x-ray examination conducted at the same time.  Thus, the remaining question is whether the current left knee disability is related to service. 

The Veteran retired in 2000 after serving over 22 years on active duty.  Service treatment records show a single instance where he was treated for left knee pain in May 1982.  He reported a left knee injury the prior night.  Evaluation revealed: stable ligaments, minimal swelling, point tenderness and a bruise.  No subsequent treatment, complaints, or diagnosis related to any left knee disability is indicated in the service treatment records.  If continuing knee pain was present during service, the Board would expect the Veteran would have reported these problems to medical professionals.  The Veteran was in the military where mobility was a key component in accomplishing duties and had access to healthcare.  He sought treatment on occasion for medical problems and the Board would therefore expect a reasonable person to have sought treatment for knee problems if present.  However, there are no other treatment records showing treatment for left knee pain.  

During the March 2000 retirement examination, evaluation of the lower extremities was normal.  In a corresponding report of medical history, the Veteran specifically denied having had any complaints or symptoms related to his knees.  If knee pain or problems were present during service, the Board would expect the Veteran would have responded “yes” when asked at separation if
 expect the Veteran would have reported these problems to medical professionals.  The Veteran was in the military where mobility was a key component in accomplishing duties and had access to healthcare.  He sought treatment on occasion for medical problems and the Board would therefore expect a reasonable person to have sought treatment for knee problems if present.  However, there are no other treatment records showing treatment for left knee pain.  

During the March 2000 retirement examination, evaluation of the lower extremities was normal.  In a corresponding report of medical history, the Veteran specifically denied having had any complaints or symptoms related to his knees.  If knee pain or problems were present during service, the Board would expect the Veteran would have responded “yes” when asked at separation if he had trick or locked knee, or painful or swollen joints, because a reasonable person would have interpreted the questions to include common symptoms of knee disability such as pain.  Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having knee pain if present.  

A December 2010 VA treatment record indicated that the Veteran had joint aches and stiffness of the knees, without joint swelling.  

In October 2011 a VA examination of the Veteran was conducted.  The Veteran reported right knee complaints during service.  Both knees were examined and no diagnosis was rendered regarding the left knee.  

In May 2013, another VA examination of the Veteran was conducted.  Again, the Veteran reported having right knee pain during service and that his knees were getting worse as he got older; he confirmed that the medical history from the 2011 examination was correct.  Both knees were examined and no diagnosis was rendered regarding the left knee.  

On a September 2014 VA treatment record the Veteran specifically reported that he was not suffering from joint pain.  As a military retiree, the Veteran also receives medical care from service department medical facilities.  Records dated in 2015 and 2016 show diagnoses of arthritis and knee pain.   

Recent VA treatment records dated in 2020 show that the Veteran is prescribed topical ointment to treat complaints of knee pain.  

In October 2016 the Veteran submitted a VA Knee and Lower Leg Disability Benefits Questionnaire (DBQ) which was completed by a private physician.  The report indicated that the Veteran was diagnosed with bilateral knee osteoarthritis which was diagnosed based on x-ray examination conducted in August 2016 which showed “mild bilateral degenerative changes.”  The report also indicted the Veteran had “chronic pain due to trauma” on both sides.  The reported medical history was that the Veteran was treated for left knee pain during service, and that the pain has progressively gotten worse since retiring from the military.  The doctor indicated that the Veteran’s service treatment records and civilian medical records had been reviewed, although no comment was made on the negative knee findings on multiple examination reports, including the retirement examination.  The doctor expressed the opinion that the Veteran’s “knee problems are more likely than not >50% service connected have progressively gotten worse since retiring from military service.”  

The Veteran testified at a September 2018 hearing before the undersigned.  He testified that he did not recall any specific injury to his left knee, but general wear-and-tear during his 22 years of service, including his service as an artillery cannon crewmember.  He also indicted that he did not seek treatment and would have treated his knee pain with aspirin himself.  While he testified that his knee had been a constant problem, on questioning he also indicated it bothered him as he got older.  He did not indicate any current treatment for his knee complaints.  He also indicated that he was unaware of any specific diagnosis related to his knee.  

Subsequently, the Veteran was afforded another VA examination in December 2020.  The diagnosis was left knee arthritis based on x-ray examination conducted the prior month.  The examining physician reviewed the evidence of record and indicted the medical opinion that it was less likely than not that the Veteran’s left knee arthritis was incurred in or caused by any inservice injury, event, or illness.  The examiner found it significant that the Veteran more recently reported onset of left knee symptoms in 1996, which was well after the single documented treatment for knee injury during service in 1982, and that there was a lengthy period of time after service with no recorded diagnosis or treatment for the left knee that would progress to arthritis.

Left knee arthritis is not shown by medical evidence until approximately 2016, over a decade and a half after the Veteran’s separation from service.  As left knee arthritis is not shown to have been present during service or in the first year after retirement from service, and continuity of symptomatology leading to a diagnosis of left knee arthritis is not shown, in-service incurrence of the disability cannot be
, or illness.  The examiner found it significant that the Veteran more recently reported onset of left knee symptoms in 1996, which was well after the single documented treatment for knee injury during service in 1982, and that there was a lengthy period of time after service with no recorded diagnosis or treatment for the left knee that would progress to arthritis.

Left knee arthritis is not shown by medical evidence until approximately 2016, over a decade and a half after the Veteran’s separation from service.  As left knee arthritis is not shown to have been present during service or in the first year after retirement from service, and continuity of symptomatology leading to a diagnosis of left knee arthritis is not shown, in-service incurrence of the disability cannot be presumed.  See 38 C.F.R. §§ 3.307, 3.309(a).  

To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s report of medical history at separation from service where he denied having knee problems.  The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time.  Moreover, while an April 2011 letter from the Veteran’s representative claims service connection for left and right knee pain, at his October 2011 and May 2013 VA examinations the Veteran only reported having right knee pain during service.  Then, later in the appeal process, the Veteran reports that he had left knee pain during service which eventually caused right knee overuse symptoms.  See October 2016 Knee and Lower Leg DBQ.  These statements are in conflict with themselves and lessen the Veteran’s credibility.  

The Veteran presented for a VA examination in December 2020, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination.  The examiner opined that the Veteran’s left knee arthritis was not related to service.  In support of this conclusion, the examiner provided rationale including reference to the Veteran’s service treatment records.  The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran.  The opinion is also supported by other evidence of record as described above.  To the extent that the negative VA medical opinion is contradicted by the medical opinion of the private physician on the 2016 DBQ, the Board notes that this physician failed to address the denial of symptoms and lack of findings on the Veteran’s retirement examination, or the decade and a half gap between service and any diagnosed left knee disorder.  Importantly, the private opinion is premised on left knee pain continuing since service, a fact which the Board finds is not supported by the evidence.  Accordingly, the Board finds the VA medical opinion more probative.   

The Board has considered the Veteran’s statements, to include his assertions that his left knee disability is related to service.  As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis.  See Davidson v. Shinseki, 581 F.3d 1313 (2009).  The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues.  Thus, his lay assertions do not constitute evidence upon which service connection can be granted.  In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the VA opinion in December 2020 rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale consistent with the other evidence of record.

For the above reasons, the preponderance of the evidence is against the claim and service connection is denied.

 

 

Nathan Kroes

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Havelka, 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.