Citation Nr: 20021258 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-62 106 DATE: March 25, 2020 ORDER Entitlement to service connection for a right knee disability, to include degenerative joint disease, is granted. REMANDED Entitlement to service connection for a left knee disability, to include DJD, to include as secondary to service-connected right knee disability, is remanded. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran’s current right knee disability, to include DJD, is related to his active duty service. CONCLUSION OF LAW The criteria for service connection for a right knee disability, to include DJD, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1986 to March 1990, from March 1991 to August 1991, and from February 2010 to October 2010. The Veteran also had subsequent Reserve service. The Board must discuss all theories of entitlement raised by the Veteran or by the evidence of record. Robinson v. Mansfield, 21 Vet. App. 545 (2008). Accordingly, the Board has recharacterized the claims as indicated above to afford the Veteran the broadest possible scope of review. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Entitlement to service connection for a right knee disability, to include degenerative joint disease, is granted. Service connection may be granted for disabilities due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge when the evidence establishes that disability was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303 (b). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran claims that he currently suffers from a right knee disability, which was caused or aggravated by his active duty service. Specifically, he has alleged that an injury he sustained in service in combination with excessive physical stress caused by his assigned duties while on active duty, to include heavy lifting and constant hard labor on his knees, caused deterioration of his joints which resulted in his current disability. The Veteran’s service treatment records (STRs) note a right knee injury on March 31, 1989, however the remainder are silent for any complaints, treatment or diagnosis of a right knee disability. The Veteran’s military occupational specialty (MOS) was noted to be metal fabricating specialist and structural superintendent. Post-service, the Veteran was diagnosed with and treated for degenerative joint disease and osteoarthritis. See March and April 2012 VA treatment notes and September 2013 VA examination. In September 2013 the Veteran underwent a Knee and Lower Leg examination with accompanying disability benefit questionnaire (DBQ). The examiner noted that the Veteran had bilateral degenerative joint disease. The examiner opined that the Veteran’s disability was less likely as not incurred in or caused by or aggravated by his claimed in service injury, event or illness. The examiner provided the rationale that the Veteran’s STRs showed his right knee injury on March 31, 1989, but that there was no documentation to support the chronicity of a right knee condition thereafter until the Veteran was seen by the VA in 2012. Furthermore, the examiner found that there was no documentation to support the claim of a left knee condition in service. In January 2020 the Veteran submitted a statement and opinion by a private examiner. The examiner noted that while she did not complete an in-person examination of the Veteran, she did thoroughly review his entire record. She noted the Veteran’s degenerative arthritis and chronic pain and opined that it is at least as likely as not that his orthopedic conditions of the right knee are a direct result of his military service. She noted the March 1989 in-service injury and noted the Veteran’s complaints of continuous pain worsening over the years. She noted that the long-term mechanical stress on his knees as a result of his military specialty furthered the damage in the Veteran’s right knee. She noted that the medical documentation along with the Veteran’s testimony supported the etiology and progression of the Veteran’s osteoarthritis. Throughout the appeal, the Veteran has submitted statements indicating his belief that his right knee disability was caused by his active duty service. Furthermore, during his Board hearing, he testified that he believed that his initial injury in March 1989 coupled with the excessive strain placed on his knees during his service from his duties carrying and lifting and working on his knees caused his disability. At the outset, the Board finds the evidence clearly establishes the current presence of a right knee disability. In addition, there was a documented injury to the Veteran’s right knee in service. Furthermore, the Veteran has competently and credibly described strain placed on his body during service, which is in keeping with his active duty responsibilities. Thus, what must be shown to establish his claim is that his disability is medically related to the claimed injury and/or strain he endured during service. Whether such a relationship exists is a medical determination beyond the scope of lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Here, there are two conflicting examinations of record. While the September 2013 VA examiner did not find that the Veteran’s disability was the result of his active duty service or events therein, the January 2020 examiner did. As both examiners based their opinions on thorough reviews of the record and provided clear conclusions and well-reasoned rationales, the Board finds both probative. In sum, the record contains competent opinions indicating that the Veteran’s current right knee disability was caused by or related to his active duty service, and another competent, seemingly equally probative opinion indicating that the Veteran’s current right knee disability was not caused by or related to his active duty service. As the medical opinion evidence on the question of nexus between the Veteran’s current right knee disability and his active duty service is, essentially, in relative equipoise, the Board finds that such evidence, collectively, indicates that it is at least as likely as not that the Veteran’s current right knee disability was caused by or related to his active duty service. In conclusion, the evidence shows a current diagnosis of DJD and osteoarthritis of the right knee, and medical and lay evidence showing a link between the Veteran’s current disability and his active duty service. In sum, based on the analysis above, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for a right knee disability, to include DJD, is warranted. The Board notes that, in reaching this conclusion, the evidence is at least in equipoise and the benefit of the doubt doctrine has been applied where appropriate. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Entitlement to service connection for a left knee disability, to include DJD, to include as secondary to service-connected right knee disability, is remanded. Although the Board regrets the delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s remaining claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that a VA examination is needed to determine the nature and etiology of the Veteran’s claimed left knee disability, to include DJD. The Veteran alleges that he has a left knee disability as the result of his active duty service or in the alternative as a result of his now service-connected right knee disability. The Board notes that the Veteran’s service treatment records are silent for any complaints treatment or diagnosis of a left knee disability. However, post-service the Veteran was diagnosed with DJD of the left knee and osteoarthritis. In addition, the Veteran is now service connected for his right knee disability. In September 2013 the Veteran underwent a VA Knee and Lower Leg examination with an accompanying DBQ. While the examiner noted the Veteran’s current left knee disability, the examiner opined that such was not directly related to service as the Veteran’s STRs were silent for any left knee complaints or disability. However, the examiner did not discuss the Veteran’s theory of secondary service connection. Therefore, on remand, as the Veteran is now service connected for his right knee disability, an examination and opinion which addresses the Veteran’s theory of secondary service connection should be obtained. Finally, due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. The Veteran should be provided with a VA examination to determine the nature and etiology of his claimed left knee disability. The claims file should be made available to the examiner. The examiner should respond to the following: A) Identify all manifestations of the Veteran’s claimed left knee disability, to include DJD and osteoarthritis. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s left knee disability is related to his service? (2) For any diagnosed arthritis, did such manifest within one year of the Veteran’s discharge from active service? (3) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s left knee disability was caused OR aggravated by his service-connected right knee disability? For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. The rationale for any opinions offered should be provided. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, 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.