Citation Nr: 18140484 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 16-12 471 DATE: October 4, 2018 ORDER 1. Entitlement to service connection for a left knee disability is denied. 2. Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability, is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran’s left knee disability is not related to his military service. 2. The Veteran’s right knee disability was not caused or aggravated by any service-connected disability or his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). 2. The criteria for service connection for right knee disability, including as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1979 to December 1983. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board notes that a May 2018 rating decision granted service connection for bilateral hearing loss, with a noncompensable disability rating, and continued the 10 percent disability rating for tinnitus. Thereafter, in August 2018, the Veteran timely filed a notice of disagreement (NOD) for the issues decided in the May 2018 rating decision. Although no Statement of the Case (SOC) has been issued to the Veteran pertaining to these issues, the RO has acknowledged the Veteran’s NOD in September 2018 correspondence to the Veteran, and additional action is pending. Typically, when there has been an initial RO adjudication of a claim and an NOD has been filed as to its denial, the appellant is entitled to an SOC, and the RO’s failure to issue an SOC is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999). As the RO has acknowledged and is processing the Veteran’s disagreement, this situation is distinguishable from Manlincon where an NOD had not been recognized. Thus, a remand is not necessary. Service Connection Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a left knee disability is denied. The Veteran seeks entitlement to service connection for a left knee disability as a result of his military service. The Veteran has a current diagnosis of patellofemoral syndrome. See May 2014 VA Examination Report. The Veteran contends that he developed knee pain while running with boots and wearing a backpack for long distance marches during service. Id. However, no diagnosis of patellofemoral syndrome was rendered in service, and there are no probative medical opinions in favor of the claim. Indeed, service treatment records do not reflect any treatment or symptomatology related to patellofemoral syndrome of the left knee. The Board notes that a service treatment record documented the Veteran’s reports of left knee pain, along with a diagnosis of traumatic chondromalacia. See Service Treatment Record dated April 27, 1982. However, there is no evidence of record linking this incident to his current patellofemoral syndrome of the left knee. The Veteran underwent a VA examination for his left knee in May 2014. The examiner opined that the left knee disability was less likely than not related to his military service. He acknowledged the report of knee pain during service, but noted that there were no reports of continuous pain following that incident. The examiner further noted that there were no reports of symptomatology or diagnoses related to the left knee upon the Veteran’s separation from service. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a left knee disability. In this regard, the Board places great probative weight on the May 2014 examiner’s opinion that the Veteran’s left knee disability was less likely than not related to his military service. The examiner clearly reviewed the claims file and thoroughly summarized pertinent clinical records, indicating that he was fully aware of the extent of the Veteran’s claimed condition, as well as his medical history and reported symptomatology. He offered a discussion analyzing the pertinent evidence of record and explaining the basis for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As there have been no opinions submitted in favor of the Veteran’s claim, the May 2014 VA opinion is the only probative medical opinion of record. The Veteran has contended on his own behalf that his left knee disability is related to his military service. The Board appreciates that the Veteran believes that his current disability is related to service, and that he is competent to report his personal observations. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board affords the lay opinion no probative value. Although lay persons are competent to provide opinions on some medical issues, see Kahana, supra, as to the specific issue in this case, determining whether a musculoskeletal disorder, such as patellofemoral syndrome, is due to military service, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, the preponderance of the evidence is against entitlement to service connection for a left knee disability. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability, is denied. The Veteran also seeks service connection for a right knee disability, which he contends is related to his left knee disability. There is no dispute that the Veteran has a current diagnosis of patellofemoral syndrome of the right knee. See May 2014 VA Examination Report. On the Veteran’s August 2014 Notice of Disagreement, as well as his February 2016 VA Form 9, he indicated that he desired to establish service connection for a right knee disability as secondary to his left knee disability Service connection may also be granted for disability which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). As discussed above, service connection for a left knee disability has been denied by the Board. As service connection has not been granted for a left knee disability, service connection cannot be granted for a right knee disability as secondary to a left knee disability. 38 C.F.R. § 3.310. Further, as none of the evidence indicates, nor does the Veteran contend that his right knee disability is due to his period of active service, the Board finds that service connection must also be denied on a direct basis. As such, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a right knee disability. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel