Citation Nr: 20048197 Decision Date: 07/20/20 Archive Date: 07/20/20 DOCKET NO. 05-23 257 DATE: July 20, 2020 ORDER Service connection for a right knee disability, to include as secondary to bilateral otosclerosis with impaired hearing, post-operative stapedectomies, is denied. FINDING OF FACT The most probative evidence is against a finding that Veteran’s current right knee disability had its onset during active duty service or is related to such service; that arthritis was manifested within one year of the Veteran’s discharge from active duty service; or that the current right knee disability was caused or aggravated by the Veteran’s service-connected bilateral otosclerosis with impaired hearing, post-operative stapedectomies. CONCLUSION OF LAW The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service from January 1973 to January 1977 and from August 1982 to August 1985. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen a previously denied claim for service connection for a right knee disability. A transcript of the Veteran’s December 2013 testimony at a hearing before a Decision Review Officer is of record. The claim was remanded by the Board in October 2017. In November 2018, the Board issued a decision that reopened the previously denied claim and remanded it for development. The claim was again remanded by the Board in April 2020. 1. Service connection for a right knee disability to include as secondary to bilateral otosclerosis with impaired hearing, post-operative stapedectomies Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In cases where a veteran served continuously for 90 days or more during active service and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence showing (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). The Veteran seeks service connection for a right knee disability. He asserts his current knee condition is due to in-service trauma as a result of multiple parachute jumps and he has also raised the theory that it is secondary to surgery for his service-connected bilateral otosclerosis with impaired hearing, post-operative stapedectomies, which he asserts resulted in an infection that has affected his joints. Service treatment records from the Veteran’s periods of active duty service do not document complaints of, or treatment for, any right knee problems, and the Veteran denied “trick” or locked knee during examinations conducted in November 1976, June 1981 and August 1982. The post-service evidence of record consists of a voluminous amount of VA and private treatment records, as well as several VA examination reports. When the Veteran was examined by VA in April 1986, he complained of knee joint deterioration but x-ray showed normal bones and soft tissue. During a February 2004 VA examination, the Veteran reported knee pain for approximately 10 years that he attributed to doing 40 to 50 jumps while he was in the Special Forces. X-ray was again normal and the Veteran was diagnosed with chondromalacia patella. A May 2009 medical opinion from Dr. C.N.B. indicated that the Veteran had right knee crepitus with pain and occasional swelling. The Veteran has been diagnosed during the appeal with a right knee disability so the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service or to a service-connected disability. The preponderance of the evidence, however, is against the claim. Service connection for a right knee disability is not warranted on a presumptive basis because there is no evidence of arthritis within one year of the Veteran’s discharge from active duty service in January 1977 or within one year of his discharge from active duty service in August 1985. Rather, as noted above, x-rays taken in April 1986 and February 2004 were normal without evidence of any degenerative changes. Service connection for a right knee disability is also not warranted on a direct basis. The Board acknowledges that service personnel records corroborate that the Veteran participated in several jumps while in service. There is no indication, however, that he sustained any injury to his right knee as a result of those jumps, since the Veteran did not seek treatment during service related to his right knee and consistently denied any right knee problems during periodic examinations. While the Veteran is competent to report that he injured his right knee during service, the Board does not find this assertion to be persuasive since it is unlikely that he would not have sought treatment. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Even assuming the Veteran injured his right knee in service and did not seek treatment, there is no indication from review of the record that he had chronic right knee problems following service. This determination is based on the February 2004 VA examination report, during which he reported problems for approximately 10 years (1994), and the May 2009 opinion from Dr. B., which noted the Veteran’s report via email of having a few bad landings during airborne jumps while in the Special Forces and that his left knee, not right, had always given him problems. There is also no probative opinion linking the current right knee disability with service. A VA examiner provided an opinion in December 2014 that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness, specifically noted to be airborne operations and parachute jumps, because there was no documentation of chronicity since military separation 30 years before and there was no current knee diagnosis. This opinion, which considered the Veteran’s complete record and a May 2009 opinion provided by Dr. B., is afforded high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The May 2009 opinion provided by Dr. B., on the other hand, specifically that the Veteran had several parachute jumps while in service and it is well-known that knee problems are induced by parachuting according to recent military medical literature such that the Veteran’s current knee problems are due to experiences or trauma in service, is not afforded any probative value. Although Dr. B. reported reviewing the Veteran’s record available at that time and provided a rationale for the opinion, namely that the Veteran entered service fit for duty; that he had multiple parachute jumps; that he had crepitus in both knees with pain and occasional swelling; and that he had problems as reported in an email, the problems reported in the Veteran’s email focused on the left knee, not the right. Therefore, the opinion is based on an inaccurate factual premise, namely that the Veteran had chronic right knee problems since service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal)). Finally, service connection for a right knee disability is also not warranted on a secondary basis in the absence of any probative evidence that a service-connected disability caused or aggravated the right knee disability. The Veteran has consistently asserted that he had an infection following surgery for his service-connected bilateral otosclerosis with impaired hearing, post-operative stapedectomies, that led to some sort of arthritis in his joints. This assertion, however, is not corroborated by the medical evidence of record as there is no indication that the Veteran has arthritis in his right knee joint as a result of infection. While the Veteran believes that his current right knee disorder is related to service or a service-connected disability, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a right knee disorder are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of any right knee disorder, to include the assertion that his post-service problems are related to in-service parachute jumps or an infection that resulted from surgery for a service-connected disability, is not competent medical evidence. The Board finds the December 2014 opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. In sum, the most probative evidence is against the claim, and service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.