Citation Nr: 18141316 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 14-25 002A DATE: October 10, 2018 ORDER Entitlement to service connection for a left knee condition is denied. FINDING OF FACT The preponderance of evidence is against finding that the Veteran has a left knee injury that began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a left knee injury are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1988 to November 1990. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision. The Veteran was scheduled for a Board hearing in September 2018, but he failed to appear. If a Veteran fails to appear for a scheduled hearing and a request for a postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.704(d). After the certification of the appeal to the Board in April 2015, the Veteran’s attorney submitted a written Motion to Withdraw Representation because various unspecified factors made continued representation impractical or unethical. Following certification of an appeal to the Board, a representative may not withdraw representation without good cause shown on motion. 38 C.F.R. § 20.608. A copy of the motion must be filed with the Office of the Senior Deputy Vice Chairman and sent to the Veteran, who must be provided the opportunity to respond within 30 days of receipt. Id. The Veteran’s attorney sent the Motion to Withdraw Representation to the Office of the Senior Deputy Vice Chairman in August 2015. In the motion, the attorney states that he sent a copy to the Veteran by first-class mail, postage prepaid. The record also contains a copy of a letter the attorney sent to the Veteran, notifying him of the intent to withdraw and the time period in which the Veteran could respond. In the three years since this motion was filed, the Veteran has not responded to this withdrawal. Based on these circumstances, the Board finds that the requirements of 38 C.F.R. § 20.608 have been met, the withdrawal is granted, and the Veteran is recognized as proceeding without representation. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if they manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Service incurrence or aggravation may also be established for arthritis under 38 C.F.R. § 3.303 (b) by demonstrating continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA shall give the benefit of the doubt to the claimant when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Attempts to obtain service records have been unsuccessful. The Agency of Original Jurisdiction (AOJ) documented multiple attempts to obtain these records following VA claim development procedures, ultimately concluding that the service records are unavailable. In cases where service records are unavailable, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinsksi, 1 Vet. App. 365, 367 (1991). The Board’s analysis of the Veteran’s claim is undertaken with this duty in mind. However, “[t]he caselaw does not lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the appellant.” Russo v. Brown, 9 Vet. App. 46, 51 (1996). The Veteran has provided private medical treatment records with his claim that primarily document treatment for gout and osteoarthritis of the Veteran’s ankles and feet. An August 2011 treatment note indicates that the Veteran also suffers from mechanical pain in his knees and low back. The treating physician indicates that this pain is almost certainly the result of degenerative joint disease, though it is unclear from the record whether objective testing was conducted to support this diagnosis. The records do not indicate when the Veteran’s knee pain had its onset and do not suggest a relationship between his condition and active service. Aside from these private medical records, the Veteran has provided no evidence to support his claim. While these treatment notes indicate the Veteran shows symptoms of a current disability, they provide no evidence that the Veteran’s knee condition began during service, is the result of an injury or disease in service, or was diagnosed within one year after his discharge. The Veteran has provided no statements in support of his claim, and the AOJ determined that the Veteran has never obtained treatment from a VA medical facility. The Board notes that the Veteran has not been provided with a VA examination for his claim. VA is required to obtain a medical opinion when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, though the Veteran’s medical records show symptoms of a current disability, there is nothing in the record to suggest that his knee condition is a related to service. Therefore, a VA examination is not necessary for the Board to reach a decision in this claim. Ultimately, the preponderance of the evidence is against finding that the Veteran’s current left knee condition is related to an injury or disease in service. Therefore, the benefit-of-the-doubt doctrine does not apply, and service connection is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Pitman, Associate Counsel