Citation Nr: 18143984 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-09 755 DATE: October 22, 2018 ORDER Entitlement to service connection for a left knee condition is granted. REMANDED Entitlement to a service connection for a right knee condition is remanded. FINDING OF FACT The Veteran’s left knee condition is etiologically related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee condition have been met. 38 U.S.C. §§1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps on active duty from August 2003 to November 2013. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for a left knee condition Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Sheddon v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3,303(d). 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, the benefit of the doubt is afforded to the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicolson, 21 Vet. App. 303 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has “unique and readily identifiable features” that are “capable of lay observation.” See Barr, 21 Vet. App. at 308–09; see also Petitti v. McDonald, 27 Vet. App. 415, 427–28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The Veteran contends that he is entitled to service connection for his left knee condition, which he asserts resulted from his service. At the outset the Board notes that the Veteran has a current diagnosis of left knee strain from a VA examiner diagnosed in January 2014. Regarding the in-service injury, the Board notes the Veteran’s service treatment records (STRs) are silent for any complaints or treatment of the left knee. However, the Veteran provided lay evidence, through his statements, that the onset of his knee pain began during service. The Veteran lists many activities he performed in service, such as hauling large weapons, hiking with gear packs, foot patrols, standing watches, and multiple fitness tests. The Veteran also reported that he did not experience knee pain prior to his joining the Marine Corps. The Board finds him competent to report on these symptoms and on the events and circumstances of his service. The Board also finds the Veteran’s lay statements credible. Although there are no records in the Veteran’s Service Treatment Records confirming the Veteran complained or was treated for a left knee condition; a VA examination, conducted in January 2014, diagnosed the Veteran with left knee strain. This diagnosis was made less than 45 days following the Veteran’s separation from active service. The most probative evidence of record shows left knee symptoms that manifested during a period of active service. This was later diagnosed as left knee strain immediately following the Veteran’s separation from active duty. Accordingly, in the absence of any evidence to the contrary, service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right knee condition is remanded. The Board is of the opinion that additional development is required before the remaining claim on appeal is decided. For the reasons stated below, the Board finds the medical opinion provided by the examiner to be insufficient. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr, 21 Vet. App. at 312. To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In a recent decision, Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018), the US Court of Appeals for the Federal Circuit held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” The Federal Circuit explained that the term “disability” refers to the functional impairment in earning capacity. In order for pain to rise to the level of being considered a disability, the Federal Circuit indicated a Veteran must demonstrate that his or her pain results in an abnormal functioning of the affected body part or system, such that the Veteran experiences an impairment of earning capacity. Such diminished functional capacity may include, but is not limited to, difficulty running, squatting, bending, or climbing. Pain may also result in anatomic abnormalities, weakness, or impaired range of motion. In this case, the Veteran underwent a VA examination to assess his claimed knee disability in January 2014. In the course of the examination the examiner acknowledged Veteran’s in-service right knee pain and the Veteran’s claims that such pain started in 2004 and remained constant since then. The examiner also noted that the Veteran indicated he had irritation and pain in his right knee since the removal of a cyst during the Veteran’s service. The examiner found insufficient evidence to warrant a diagnosis for a right knee condition, claiming there was no pathology with which to render a diagnosis. However, the examiner did not comment on whether the Veteran’s right knee pain results in any functional impairment, nor did the examiner proffer an opinion whether the Veteran’s right knee pain was at least as likely as not (a 50 percent probability or greater) connected to the Veteran’s in-service complaints of right knee pain, or the in-service cyst removal from the Veteran’s right knee. Accordingly, the matter is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, to include any more recent treatment records related to the claimed disability. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e) 2. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran’s claimed right knee disability. All pertinent evidence of record must be made available to and reviewed by the examiner(s). Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any diagnosed right knee injury at least as likely as not (a 50 percent probability or greater) originated during his period of active service. The examiner(s) must provide a complete rationale for all proffered opinions. In this regard, the examiner(s) must discuss and consider the Veteran’s competent lay statements. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Finally, undertake any additional development deemed necessary and then readjudicate the Veteran’s claims. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran should be provided with a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Gresham, Law Clerk