Citation Nr: 18131221
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 14-16 668
DATE:	August 31, 2018
ORDER
Entitlement to service connection for bilateral knee disability is denied.
FINDINGS OF FACT
1. The Veteran’s service treatment records are negative for complaints of the knees.
2.  The earliest post service evidence of a knee disability is not for approximately two decades after separation from service.
3. The preponderance of the evidence is against finding that the Veteran has a bilateral knee disability due to a disease or injury in service.
CONCLUSION OF LAW
The criteria for service connection for a bilateral knee disability are not met.  38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active military service from January 1971 to December 1972.
This matter was previously before the Board in February 2016 when the Board denied it.  The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims, which, in a December 2017 memorandum decision, vacated the Board decision and remanded the matter.  In July 2018, the Veteran waived RO consideration of additionally submitted evidence. 
Legal Criteria
Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  
Service connection may also be awarded on a presumptive basis for certain chronic diseases, to include arthritis, listed in 38 C.F.R. § 3.309(a), that manifest to a degree of 10 percent within one year of service separation.  Id. §§ 3.303(b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309(a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b).
Analysis
The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.
The question for the Board is whether the Veteran has a current knee disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.  The Veteran has been diagnosed with arthritis of the knees. 
The Veteran contends that he has had bilateral knee pain since service and that he did not complain in service because it was frowned upon due to being a member of the 82nd Airborne Division.  The Board acknowledges that the Veteran earned the parachute badge (which generally requires five jumps) and that he was stationed at Fort Bragg, North Carolina which would have likely required additional jumps. 
The Board concludes that, while the Veteran has a current diagnosis of bilateral knee disability, the preponderance of the evidence weighs against finding that the Veteran’s disability began during service or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).
The Veteran separated from service in December 1972.  The earliest indication of a complaint of the knee is not for approximately twenty years and only after a post-service injury.  The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
While the Veteran has contended that he did not seek treatment in service because seeking treatment was frowned upon, the Board notes that he did seek in-service treatment for conditions other than the knee.  For example, he sought treatment on at least six occasions for a burn from cigarette lighter fluid, sought treatment for an elbow strain, and sought treatment on three occasions for an ankle infection.   Thus, if he had chronic complaints of the knee or significant injury to the knee, it seems reasonable that he would have sought treatment for such.  Moreover, his contention does not explain why he would not seek treatment prior to separation when he knew that he was being separated, or in the decade thereafter. 
Post-service, the Veteran worked as pipe-fitter for decades which included crawling through underground tunnels, kneeling three hours a day, crawling three hours a day, and climbing ladders (see Social Security Administration records).
An August 1991 Missouri Orthopedic Sports and Trauma Clinic record reflects that an MRI was ordered to rule out a medial meniscus tear of the left knee.  There was no indication on the record as to the cause of the complaints, or any indication that they had been since service. 
A July 2006 private medical record (St. Louis Neurological Institute, Inc.) reflects that the Veteran had a past medical history of an injury to his left knee in 1990 (more than a decade after separation from service) in a motorcycle accident which was treated conservatively.  The Veteran reported to the 2006 clinician that his left knee feels “loose”, as does his right knee.  The Board finds it notable that the Veteran reported a post-service motorcycle accident with regard to the left knee, but did not report chronic problems since service, or any in-service injuries.  The Board finds that if the Veteran had an injury in service, and/or chronic problems since service, it would have been reasonable for him to have reported such when seeking treatment, rather than note a much later injury in 1990.  Upon examination in 2006, the Veteran had laxity of the left lateral collateral ligament.  The clinician noted that 1991 records from Barnes-Jewish Hospital reflected that with regard to the motorcycle accident, the Veteran had a left knee ligament injury. (VA has advised the Veteran that he should submit all evidence which may support his claim, but he has not submitted Barnes-Jewish Hospital records or authorization for VA to obtain them although they could have potentially shown the condition of his knees at that time.)  Notably, although the Veteran reported that his left knee felt loose, and it was noted that he had 1+ crepitus, the report does not reflect that he reported chronic pain.  The Veteran had a full range of motion.
A June 2008 clinical record (Allied Behavioral Consultants, Inc.) reflects that the Veteran reported torn ACLs of the knees. 
A September 2008 private medical record (St. Louis Neurological Institute, Inc.) reflects that the Veteran gave a past medical history of several disabilities to include a left knee injury.  The Board again finds that if the Veteran had experienced knee pain since service, it would have been reasonable for him to have reported such, rather than to note a left knee injury in 1990.  In addition, if the Veteran had chronic right knee complaints since service, the Board finds that it would have been reasonable for him to have reported such as this would have been more than three decades of pain.  Upon examination, the Veteran had diminished range of motion of both knees.
A 2009 SSA record reflects that the Veteran had a past history of a torn left meniscus in 1991 and a torn right ACL.  
In a May 2011 note on a prescription pad, the Veteran’s primary care physician R. H., M.D. stated: “Bilateral knee osteoarthritis probably partially due to paratrooper work 1971 to 1972.”  No supporting rationale was provided; thus, the Board finds the opinion lacks probative value.  
An April 2013 VA examination report reflects that the Veteran reported that his current bilateral knee pain was due to his estimated 24 parachute jumps during service.  The Veteran explained that bilateral knee pain occurred while crouching, squatting, kneeling, and during repetitive stair usage.  The Veteran reported that his post-service occupation was a pipefitter, which involved lifting and carrying objects from floor to waist and climbing up and down ladders as circumstances dictated.  The Veteran further reported that his post-service occupation as a pipefitter involved many postural changes such as crouching and squatting.  The examiner opined that the Veteran’s osteoarthritis of the bilateral knees was “less likely than not” secondary to his military service and the related activity therein, such as parachuting, and provided the following rationale: 
With acknowledgement of his personal physician’s May 2011 statement, overall and given his robust many decades long career as a pipefitter, it’s more likely as not that his current knee diagnoses are secondary to his robust occupational history and the natural progression of aging; on point also is lack of documentation of injury in service and lack of symptoms during the ensuing [three decades] or more enough to prompt medical attention until chronologically relatively recently. 
In July 2015, the Veteran submitted an opinion from his private treatment provider, Dr. C. Solman, Jr. who provided the following opinion: 
[The Veteran] relays to me that during his military days he was performing some paratrooper activity and jumping out of airplanes and did several jumps which he felt may have contributed to his knee issues that he is having now. There is certainly evidence that such activities can certainly contribute to the development of osteoarthritis from cartilage damage during those impact activities as a paratrooper.  It is certainly likely that the jumps did incite some cartilage damage in the knees and led to progressive osteoarthritis changes in the knees over the years following his paratrooper activity.
The Board note that the Veteran’s first encounter with the Veteran was in July 2015 and at that time, the Veteran reported a “longstanding history of bilateral DJD dating back from his days in the military when he was airborne and had several jumps out of an airplane”.  The Board is not bound to accept medical opinions that are based on history supplied by the veteran, where that history is unsupported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Reonal v. Brown, 5 Vet. App. 458, 460- 61 (1993). 

In March 2018 correspondence, Dr. Solman stated as follows:
This letter is in regards to [the Veteran], a patient of mine whom I am treating for bilateral knee osteoarthritis.  [The Veteran] has already undergone a left total knee arthroplasty last year and is doing well with this.  The reason for this letter is to state that within a reasonable degree of medical certainty the patients’ 24 military parachute jumps are important, significant contributing factors to development of his osteoarthritis of his knees and the need for his treatment. Parachute jumps and landings cause an extremely high amount of impact forces on the articular cartilage secondary to the rapid loading of this cartilage when the person lands. This abnormal and consistent traumatic pressure on the joints can result in damage to the articular cartilage and result in progressive chronic painful joint disabilities such as knees in this case. The damage that [the Veteran] has to his knees at the present time is a result of this impact loading from his military parachute landings. 
The Board acknowledges that the opinion contains a discussion of the Veteran’s service but it importantly, does not discuss the lack of complaints in the two decades after separation from service, or the Veteran’s decades long employment in an occupation that involved significant crawling, climbing, and kneeling.  Although Dr. Solomon notes that the parachute jumps can result in damage to the cartilage and can result in chronic painful joints, the Veteran did not have chronic pain in the knees for more than three decades after separation from service.  Additionally, Dr. Solomon did not consider the Veteran’s post service knee injuries as possible intervening causes.  Therefore, the Board affords the opinion limited probative value as it was based on an incomplete factual basis. 
2018 Correspondence from Dr. RJ Range reflects that the Veteran presented to his office with paperwork noting that the Veteran had complaints of the lower back, right knee, shoulder, and neck which began in 1971.  The Veteran reported that he believed that his disabilities are from his parachuting in service.  Dr. Range stated that the Veteran’s disabilities would be commiserate with the Veteran s past and could stem from the high-impact falls and injuries of parachuting through the years.  Dr. Range stated that he had only known the Veteran for a “couple of months” but that it would seem “not only possible but likely that many (if not most) of [the Veteran’s] issues he presents with in my office would be in some part due to the military background and more specifically the paratrooper aspect causing injury over time.”
The Board finds that the opinion of Dr. Range lacks significant probative value as it is based on “paperwork” noting that the Veteran’s complaints “first started in 1971”; however, there are no 1971 records in evidence showing such complaints.  As noted above, the earliest evidence is from 1991, and makes no mention of chronic complaints.  It appears that Dr. Range’s opinion was based on another record (e.g. that of Dr. Solman made decades after separation from service) which includes the Veteran’s self-reported unsubstantiated history of chronic pain since service.  Second, Dr. Range’s opinion does not reflect that he had any indication of the post-service injuries to the Veteran’s body, to include his motorcycle accident, or his post service employment.  (The Board notes that Dr. Range also opined with the regard to the Veteran’s shoulder complaints being due to service; while the shoulder injury is not an issue before the Board, the Board notes that that there are numerous clinical records in evidence which reflect that that the Veteran had a significant post service employment injury to the left shoulder in 2007, with no prior injury; thus, it again appears that Dr. Range was making opinions as to the Veteran’s overall complaints/physical health based on an incomplete inaccurate history.) 
(The Veteran also apparently gave an incomplete and/or inaccurate history to the 2013 VA examiner when he stated that he had no treatment for knees for over three decades post military duty; however, this is not accurate as the records reflect knee surgery in the 1990s.)  
Finally, the claims file includes a January 2018 VA orthopedic surgery note which reflects the statement of the clinician that there is a “strong causal connection demonstrated between impart loading secondary to parachute jumping and development of lower extremity, particular knee, osteoarthritis.  Based upon literature review, and with consideration of the patient’s historical record of repeat parachute jumps, it is considered more likely than not that the patient’s bilateral knee ostearthritis is posttraumatic in etiology and owes itself to impact loading resulting from military activity.”  Once again, this opinion does not reflect that the clinician had an accurate picture of the history of the Veteran’s post-service employment, post-service lack of complaints for decades, post-service injuries, or onset of symptoms.  Thus, it lacks significant probative value. 
In sum, the record reveals conflicting competent medical opinions addressing the etiology of the Veteran’s currently diagnosed bilateral knee disability.  In weighing the evidence, the Board must decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).   
The Board finds the etiological opinion of the 2013 VA examiner probative in that the examiner reviewed the pertinent medical records, conducted a personal examination of the Veteran, obtained relevant occupational history, and provided a clear conclusion with a reasoned medical explanation, namely that the Veteran’s osteoarthritis of the bilateral knees, which did not require any significant medical treatment until many years after separation from service is more likely attributable to his post-service employment as a pipefitter.
The Board also finds that any clinical opinion based on continuity of symptoms since service lacks probative value as the evidence is against a finding of such.  
The Veteran is competent to describe bilateral knee complaints even though the symptoms were not recorded during service.  However, the STRs lack the documentation of the combination of manifestations sufficient to identify a knee disability, and sufficient observation to establish chronicity during service, and there is not competent credible showing of continuity of symptoms after service.  While the Veteran is competent to report symptoms, competence is not synonymous with credibility.  The Board finds that any statement as to chronic symptoms since service is less than credible given the record as a whole, to include the two decades post service without complaints, the Veteran’s lengthy post service employment involving significant crawling and kneeling without reference to chronic complaints since service, and the earliest clinical evidence which reflects injury due to a post service vehicle accident. 
In making such a credibility finding, the Board is not finding that the Veteran has any intent to deceive.  Rather, he may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred many years ago.  For instance, while the Veteran contended in a February 2012 statement that his left knee has been “loose and sloppy” since service, the Board finds this highly unlikely given that he was able to serve in the military without complaint, work for the next two decades in a labor-intensive job, and that when he complained of a loose left knee post-service, it was related to a post-service accident.  The Veteran has not submitted any evidence that he was unable to pass a military required physical fitness testing service, or placed on a temporary physical profile in service due to a knee disability.
In addition, while the Veteran is competent to report having symptoms of the knees in service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current knee disability.  The issue is medically complex, as it requires knowledge of the joints of the body as well as how age, trauma, and use affect the joints.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  
The Board has also considered the articles submitted by the Veteran.  However, the Board does not find them dispositive in this claim.  For example, one article discusses that when an injury occurs in a parachuting landing, it may require up to four soldiers to assist in evacuation from a drop zone; however, the Veteran was never evacuated from a drop zone and never reported an injury to the knees while in service.  There is no competent credible evidence of a ligament tear in service, meniscus tear in service, or any chronic injury.  
In essence, the Veteran has obtained multiple positive opinions but they are not based on an accurate post-service employment history and clinical history.  Thus, they have less probative value than the 2013 VA examination report. 
In summary, the most probative evidence of record does not indicate that the Veteran’s current bilateral knee disability is directly related to his active service, that he had a bilateral knee disability to a compensable degree within a year of his active service, or that there is a continuity of symptomatology of the Veteran’s bilateral knee disabilities following his service.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 

 
Evan M. Deichert
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Wishard