Citation Nr: 20040195 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 16-62 374 DATE: June 11, 2020 ORDER Entitlement to service connection for a left knee condition is denied. REMANDED Entitlement to service connection for a skin condition (claimed as recurrent rash) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s current degenerative arthritis of the left knee began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1964 to July 1969. This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In January 2020, the Board remanded the matters for further development. Now the matters are returned to the Board. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. The Veteran contends that his current left knee condition is due to his left knee injury sustained in service while trying to stop a robbery. See October 2019 Hearing Transcript, at 4. The Veteran was afforded a VA examination in March 2020. On examination, the examiner noted the Veteran’s current diagnosis of degenerative arthritis of the left knee. Thus, the Board finds that the first Shedden element for service connection is met. As to the in-service incurrence of the left knee condition, the Board notes that the Veteran’s service treatment record, including his separation examination, does not show any diagnosis or treatment related to a left knee condition. However, the Veteran competently testified that he had injured his left knee in service after jumping off of a vehicle and falling into a drainage pitch while responding to a robbery scene. See October 2019 Hearing Transcript, at 4-5. In light of the Veteran’s competent and credible testimony, the Board resolves any reasonable doubt in the Veteran’s favor and finds that the second Shedden element for service connection is also met. However, the March 2020 VA examiner opined that the Veteran’s left knee condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner provided that he was unable to locate any service treatment record documenting an in-service left knee injury or treatment or any objective evidence to support a nexus or chronicity from service. The examiner further stated that there are many causes to degenerative arthritis including obesity, repetitive trauma, aging and overuse. The Board finds the March 2020 examiner competent and credible and assigns probative weight to the examiner’s opinion as it was rendered after reviewing the Veteran’s claims file in conjunction with an in-person examination of the Veteran. The Board acknowledges the Veteran’s contention of having a left knee condition since his separation. However, the evidence of record does not show any treatment history for a left knee condition following the Veteran’s separation in July 1969. The Board also notes that the Veteran did not respond to the RO’s additional effort to obtain more information on any outstanding treatment record for his left knee condition. See VA Correspondence sent on January 22, 2020. As the preponderance of the evidence is against finding a nexus between the Veteran’s current left knee condition and the claimed in-service injury, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Board finds that the Veteran’s entitlement to service connection for a left knee condition is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS FOR REMAND The Veteran is also seeking service connection for a skin condition. However, the Board finds that more development is necessary prior to final adjudication. On March 2020 VA examination, the examiner opined that the Veteran’s current skin condition is less likely than not related to the claimed in-service injury, event or illness. The examiner provided that the sunburn noted in service was unrelated to his current condition and self-limiting. However, the March 2020 examiner has failed to consider the Veteran’s competent testimony on having symptoms of a skin condition during service. See October 2019 Hearing Transcript, at 5-6 (the Veteran testified that constant itching of his groin, head, and legs started when he was in the Philippines and started again in Vietnam); see also September 2016 Notice of Disagreement (the Veteran provided that he has been having symptoms since leaving the service). The Board finds that an addendum medical opinion addressing the Veteran’s testimony regarding the onset of his skin symptoms is necessary in order to make a fully informed decision. Accordingly, the matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should obtain an addendum opinion from the March 2020 VA examiner regarding the Veteran’s service connection claim for a skin condition. If the March 2020 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. If the examiner determines that a new examination is necessary, the AOJ should schedule one for the Veteran. The examiner should review the Veteran’s claims file and a copy of this REMAND order before rendering the requested addendum opinion. (a.) The examiner must opine whether the Veteran’s current skin condition is at least as likely as not (50 percent or greater probability) related to his service or had its onset in service. (b.) The examiner specifically is asked to consider the Veteran’s October 2019 testimony on how constant itching of his groin, head, and legs started in his service in the Philippines and started again in Vietnam. See October 2019 Hearing Transcript, at 5-6; see also September 2016 Notice of Disagreement (the Veteran provided that he has been having symptoms since leaving the service). The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. (c.) The examiner must provide a complete written rationale for any opinion offered. 2. After completing the above action and any other necessary development, the issue on appeal must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, Associate 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.