Citation Nr: 18158678 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 17-06 283 DATE: December 18, 2018 ORDER Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. FINDINGS OF FACT 1. The Veteran has no current diagnosis of a right knee condition; and there is no competent evidence showing that his current, subjectively reported right knee symptoms have resulted in functional impairments in earning capacity. 2. The Veteran has no current diagnosis of a left knee condition; and there is no competent evidence showing that his current, subjectively reported left knee symptoms have resulted in functional impairments in earning capacity. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2001 to March 2010. He also had additional inactive service. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104 (d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Pertinent regulations for consideration were provided to the Veteran in the November 2016 Statement of the Case (SOC) and will not be repeated here in full. Service Connection The Veteran claims service connection for right and left knee disabilities. He contends that he has current right and left knee disabilities manifested as symptoms such as pain and limitation of motion. His representative implicitly attributed such symptoms to an unspecified event or injury during the Veteran’s active service in Iraq. See August 2018 brief; February 2017 statement in lieu of VA Form 646.   After a full review of the record, the Board finds that the claim must be denied. The Veteran has not been diagnosed with any current right or left knee conditions at any point during the appeal period. Nor is there any competent evidence showing that his current, subjectively reported bilateral knee symptoms have resulted in functional impairments in his earning capacity. Therefore, he has no current right or left knee disabilities for which service connection may be granted. The Board considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding U.S. Court of Appeals for Veterans Claims erred as matter of law in finding veteran’s pain alone, absent specific diagnosis or otherwise identified disease or injury, could not constitute a disability under 38 U.S.C. § 1110) and other relevant authorities. These authorities do not support a finding that the Veteran has a current right or left knee disability. Notably, neither he nor his representative has specified how they believe the Veteran’s current, subjectively reported bilateral knee symptoms have resulted in functional impairments in earning capacity. Cf. Mitchell v. Shinseki, 25 Vet. App. 32, 38, 43 (2011) (stating, “pain itself does not rise to the level of functional loss;” “pain must affect some aspect of the normal working movements of the body...in order to constitute functional loss;” and “painful motion alone is not [the equivalent of] limited motion” (internal quotation marks omitted)); Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (disability occurs “if a veteran cannot perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance” (citing 38 C.F.R. § 4.40 )); Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011) (“disability” in VA regulations is “generally associated with the veteran’s inability to perform certain acts”). Moreover, there is no objective, competent medical or vocational evidence of record suggesting that the Veteran’s current, subjective bilateral knee symptoms have resulted in any functional impairment in earning capacity. The Federal Circuit stressed in Saunders: We do not hold that a veteran could demonstrate service connection simply by asserting subjective pain to establish a disability….To establish the presence of a disability, a veteran will need to show that…pain reaches the level of a functional impairment of earning capacity. The policy underlying veterans compensation to compensate veterans whose ability to earn a living is impaired as a result of their military service supports the holding we reach today. The presence of a disability at any time during the claim process can justify a grant of service connection, even when the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, Congress specifically has limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a current disability. Thus, when the evidence does not support a finding of a current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In conclusion, the service connection claims for right and left knee disabilities are denied. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist The Veteran and his representative contend that the Veteran is entitled to a VA examination and/or a VA medical opinion regarding the service connection claims denied herein. VA’s duty to assist a veteran in obtaining evidence necessary to substantiate a claim includes providing an adequate VA medical examination or opinion when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. However, VA is not required to provide an examination in every case. See Waters v. Shinseki, 601 F. 3d 1274 (Fed. Cir. 2010). Rather, VA must provide a medical examination when the record contains (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. See 38 U.S.C. § 5103A (d)(2); McLendon v. Nicholson, 20 Vet. App. 79, 81-86 (2006). Here, the Board finds that the first McLendon element is unsatisfied because there is no competent evidence of a current right or left knee disability, or persistent or recurrent symptoms of a disability. The only evidence of record in this regard are the Veteran’s lay statements and his representative’s contentions reporting current, subjective bilateral knee symptoms such as pain and decreased range of motion. The Board recognizes that symptoms such as pain may constitute a current disability when the evidence shows that such symptoms have resulted in functional impairments in earning capacity. See Saunders, supra. However, this was not shown here for the reasons explained above. In summary, the first McLendon element is unsatisfied, even considering the principles in Saunders. Furthermore, the Veteran’s and his representative’s conclusory, generalized lay statements suggesting a nexus between the Veteran’s current, subjective bilateral knee symptoms and service are not enough to warrant a VA examination or medical opinion. See Waters, supra at 1278. “Since all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran’s disability case.” Id. There is no competent medical evidence of record supporting the contention that the Veteran’s reported knee symptoms may be associated with service. In summary, even under the low threshold of McLendon, neither a VA examination nor a VA medical opinion is warranted. Neither the Veteran nor his representative has raised any other duty to notify or duty to assist issues. 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 a duty to assist argument). Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R.§ 3.103(c)(2), and neither has identified any prejudice in the conduct of the Board hearing. As the issue has not been raised, there is no need for the Board to discuss compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010). See Dickens, supra. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel