Citation Nr: 18160629
Decision Date: 12/28/18	Archive Date: 12/27/18

DOCKET NO. 15-42 648A
DATE:	December 28, 2018
ORDER
The claim for entitlement to service connection for a left knee disability is denied.
FINDING OF FACT
The preponderance of the evidence is against finding that the Veteran’s left knee is due to a disease or injury in service 
CONCLUSION OF LAW
1. The evidence fails to establish that the Veteran’s current knee disability is etiologically related to his active service.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from July 1977 to July 1981.
Following issuance of a Statement of the Case in November 2015, the Veteran perfected his appeals as to three different claims via a December 2015 VA Form 9. These claims are currently under development at the Agency of Original Jurisdiction (AOJ) and have not been certified to the Board.  Therefore, the Board will not address them at this time.
Service connection 
The Veteran contends that his current left knee disability is related to a December 1978 in-service injury.  Specifically, in a March 2011 statement, the Veteran reported “I was working in the warehouse rear dock area walking down the ramp when I slipped and fell off of the lower part of the ramp and landed on my left knee.”  See March 2011 statement Private Treatment Record
Legal Criteria
Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017).  Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d) (2017).
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013).
Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F. 3d 1331, 1337 (Fed. Cir. 2013) (“Continuity of symptomatology may be established if a claimant can demonstrate (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.” (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)).  
Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service.  Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C. §§ 1110, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.
In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).  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 (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  
Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, the claimant prevails.  38 U.S.C. § 5107 (2012); 38 C.F.R. §.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for a claim to be denied.  Alemany v. Brown, 9 Vet. App. 518 (1996).  


Factual Background
During the Veteran’s enlistment examination, the Veteran denied any prior leg problems.  See service treatment records (STRs) – Medical.  However, in December 1978, the Veteran was seen for complaint of knee pain for the past two weeks.  Id.  The Veteran denied any prior history of knee trauma or injury.  The physical examination was noted to be within normal limits.  Id.  The Veteran was assessed with muscle strain.  Id.  No clinical abnormalities were noted at the June 1981 separation examination.  Id.  
Post-service private treatment records indicate that the Veteran was assessed with mild degenerative changes with decreased joint space narrowing in March 2006.  See March 2006 Crosspoint Medical Clinic.  The Veteran underwent a two-week physical therapy session for his knee pain.  Id.  
The next treatment record in the claims file is from April 2011.  See April 2011 Raymondville Family Medical Clinic Record.  The Veteran reported knee pain for past three weeks, but also “states that pain has been there for yrs [sic].”  Id.  The Veteran was assessed with left knee strain suspect meniscal tear.  Id. Conservative treatment including knee brace was prescribed.  
In June 2011, the Veteran submitted several lay statements from family members.  For instance, the Veteran’s former brother in law Ms. A.F. stated “I still remember the time when [the Veteran] called and said he had fallen in the warehouse while working sometime in 1978.”  See VA Form 21-4138, Statement in Support of Claim from Mr. A.F. Ms. A.F. also stated that the Veteran had a bad knee after service.  
An Magnetic Resonance Imaging (MRI) of the Veteran’s left knee taken in July 2011 indicated a medial meniscal tear.  See San Benito Imaging Center Report.  
In September 2011, the Veteran was afforded a VA examination to determine the etiology of his knee disability.  See September 2011 VA examination.  The Veteran reported that he has had a left knee condition since 1978.  He also stated that he experienced symptoms of weakness, swelling, pain, and tenderness.  Id.  He also denied ever being hospitalized or undergoing surgery for his knee condition.  The physical examination of the left knee revealed weakness, tenderness, locking pain and crepitus but indicated no signs of edema, instability, effusion, or ankylosis.  The examiner diagnosed the Veteran with degenerative arthritis of left femoropatellar joints.  Id.  The examiner provided a negative nexus opinion regarding the Veteran’s current left knee disability.  The examiner noted that the Veteran was seen once during active service for left knee pain, and “[t]here is no further entries in the medical records regarding any type of complaint of treatment or any type of follow up for the left knee over the next three years.”  Id.  The examiner’s stated rationale was “that mild changes of the left femoropatellar joint noted on x-rays at this time, are too mild to be due to something [t]hat happened 34 years ago.”  He further states that if the December 1978 injury was significant, “the current changes which would have taken place over a period of about 34 years would be a lot more than ‘mild’ changes.”  Id.  
Analysis 
The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.
The Veteran was diagnosed with degenerative arthritis of the left knee.  Thus, he has met the first element of service connection – a current disability.
The Board finds that the second element of service connection is met because the Veteran was treated for a left knee injury in December 1978 as noted in his STRs.  
However, there is no evidence of a link between the Veteran’s current knee disability and his in-service injury.  The September 2011 VA examiner opined that the Veteran’s left knee disability was less likely than not related to the in-service injury.  Specifically, the examiner found that the Veteran was seen once during active service, with no further complaints or follow up noted during service.  The examiner also found that the Veteran’s current left knee disability was mild and would have been more severe if it were related to the in-service injury that occurred 34 years ago.  
While the Veteran believes that his left knee disability is related to active service, the Board finds great probative value in the VA examiner’s opinion because this opinion was supported by a rationale and is consistent with the medical evidence of record which show that the Veteran did not seek any additional treatment for a left knee compliant during active service and did not provide medical evidence of knee pain until March 2006.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may favor competent medical nexus evidence over lay statements offered by Veteran).  
The Board has also considered the lay statements in support of the claim including from the Veteran, and his family members.  The Veteran has stated that he believed that his left knee disability was related to his in-service injury; however, in weighing the evidence of record against his claim, there is no evidence of further complaints related to his left knee following treatment in December 1978.  Notably, lay persons are competent to provide opinions on some medical issues.  See Kahana v. Shinseki, 24 Vet. App. 428, 425 (2011).  However, as to the specific issue in this case, the etiology of his current left knee degenerative arthritis – it falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).
Moreover, the examiner’s opinions was based on review of the claims file and examination of the Veteran.  Importantly, this medical opinion is uncontroverted by any medical evidence of record.  In fact, the Veteran has not submitted any medical evidence supporting his contention that his left knee  disability was due to or the result of his active service.
Therefore, because the VA examiner’s opinion has more probative weight, the preponderance of the evidence weighs against finding the Veteran’s current left knee disability is entitled to direct service connection.
The Board also considered whether the Veteran’s left knee arthritis was entitled to presumptive service connection.  Arthritis will be presumed to be incurred in service if it manifested to a compensable degree (meaning 10 percent disabling) within one year after discharge from service.  See 38 U.S.C. § 1110, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a).  However, the record does not show that the Veteran was diagnosed with degenerative arthritis within one year of separation from service in July 1981.  In fact, the Veteran was not diagnosed with degenerative arthritis until March 2006, which is approximately 25 years after active service.  Therefore, the Veteran did not establish that his degenerative arthritis was a chronic condition for the purpose of presumptive service connection.
(Continued on the next page)
 
The record does not contain any evidence that the Veteran’s left knee disability was either chronic or that he suffered continuous symptoms following service.  Therefore, where the record contains no evidence of a chronic knee condition or manifestations of a knee disability either in service or within one year after separation from service, service connection on a presumptive basis, including on the basis of continuity of symptomology, has not been established.
Accordingly, the Board concludes that the preponderance of the evidence is against the claim and entitlement to service connection for a left knee disability must be denied.  38 U.S.C. § 5107 (b)(2012); Gilbert v. Derwinski, 1 Vet. App. at 54-56.  Given such, the benefit-of-the-doubt doctrine is not applicable.
 
YVETTE R. WHITE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	G. Lilly, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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