Citation Nr: 1804776 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-18 795A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a right knee injury. 2. Entitlement to an increased rating in excess of 10 percent for a back injury. REPRESENTATION Veteran represented by: Karl A. Kazmierczak, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 2009 to March 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011(right knee condition) rating decision and a May 2013 (back condition) rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran had a videoconference hearing before the undersigned Veterans Law Judge in July 2017. A transcript has been associated with the file. The claims file is now entirely in VA's secure electronic processing system, Virtual VA and Veterans Benefits Management System (VBMS). The issue of service connection for a back condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's currently diagnosed knee right condition was not incurred in or aggravated by the Veteran's active duty service. CONCLUSION OF LAW The criteria for the establishment of service connection for a right knee injury are not met. 38 U.S.C.. §§ 1110, 5107 (2012), 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Assist and to Notify Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Legal Criteria Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the veteran. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cer. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). III. Service Connection for a Right Knee Injury The Veteran is diagnosed with right knee patellofemoral syndrome. The next question is whether there was an in-service incurrence of his knee injury. The Veteran's service treatment records (STRs) are negative for treatment of a right knee injury. The Veteran's May 2008 entrance examination does not show any pre-existing knee injury. In his January 2008 post-deployment assessment, the Veteran did not note any knee injury and the Veteran stated that his health was approximately the same as it had been before his deployment. The Veteran also stated he had not been engaged in direct combat where he discharged a weapon, nor did he see any dead or wounded people, and did not feel he was in great danger of being killed. The Veteran indicated that he had not developed any medical problems during the deployment. There is some evidence the Veteran suffered a right knee injury earlier in his life. In a February 2011 medical evaluation, the Veteran stated he injured his knee skateboarding when he was younger. In a September 2013 statement, the Veteran reported that when he was in training, he fell off a truck with all his gear on. The Veteran's spouse submitted a statement in June 2017 saying the Veteran was still dealing with his injuries, including his knee injury. However, the objective evidence of record does not show the Veteran had a chronic right knee condition incurred while in service. The Veteran's medical records show that he was having problems with a knee injury in 2014, but it seemed to resolve itself as the Veteran's medical records since that time do not indicate continuing treatment for a chronic right knee condition. Additionally, none of the Veteran's medical providers have diagnosed via x-ray arthritis in his right knee. The Veteran had a videoconference hearing in July 2017. In his hearing, the Veteran stated he believed his right knee should be service connected because when he entered into the military, he wasn't having knee problems. The Veteran stated that when he flew to Iraq, he had some knee injuries when lifting up generators and filling up a five-ton truck bed. The Veteran reported he received treatment for his knee while in service in Iraq and told them about his knee. The Veteran stated he first got treatment for his right knee after his time in service in March 2011. The Veteran stated he was diagnosed with patella femoral syndrome in June 2011, which was approximately three months after he got out of service. The Veteran stated at that point, his knee was getting worse. The Veteran stated that he hurt his knee in a combat situation in Iraq. While the Board has considered the Veteran's lay statements and the statements by his wife, the Board has found no objective evidence showing the Veteran was seen in service for a knee injury. The Board acknowledges that the Veteran is competent to relate what happened to him in service and while the Veteran has stated he sought treatment for his knee in service, there is no record of such treatment. Additionally, the Veteran's post-deployment examination shows no knee injuries or treatment. The Board also acknowledges that the Veteran did begin to seek treatment for his right knee shortly after his release from service. However, the Veteran's right knee condition does not qualify for service connection under §3.303 (b) because chronicity in service is not adequately supported (absence of medical records) and the Veteran's medical records do not show that he continues to seek treatment for a chronic right knee condition. The Board acknowledges that the Veteran does not need continuity of treatment, but rather only continuity of symptomatology in order to qualify for service connection. However, while the Veteran has said that his knee has continued to cause him pain, the objective evidence, including the Veteran's medical records, does not reflect continuity of symptomatology. In considering the Veteran's lay statement of an in-service injury, but balancing them against no report of the injury in service, and similarly no objective evidence of continuing, chronic symptomatology, the Board finds that the more probative evidence is against the claim of service connection. ORDER Service connection for a right knee injury is denied. REMAND The Veteran has asserted that his back condition has gotten worse and is more disabling than his current 10 percent rating. The Veteran was last seen in April 2013 for a back examination. The Veteran contends that his back condition has worsened since that examination. The Veteran was scheduled for an examination in September 2015 but did not appear. In his July 2017 hearing, the Veteran stated he missed his scheduled September 2015 examination because he didn't get the letter due to his change of address. The Board acknowledges that the Veteran did move around this time and the Veteran may not have received notice of the examination. Therefore, a new examination to determine the severity of the Veteran's back condition is warranted. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain any and all outstanding medical records from the Veteran and associate them with the claims file. 2. Schedule the Veteran for a VA examination to ascertain the current severity of his service-connected back condition. 3. Readjudicate the claims on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs