Citation Nr: A20007313 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190815-20229 DATE: April 30, 2020 ORDER Entitlement to service connection for right knee replacement is granted. FINDING OF FACT Resolving all reasonable doubt in his favor, the Board finds that the Veteran’s right knee replacement is related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for right knee replacement has been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with Department of Veterans Affairs (VA) decision on their claim to seek review. This decision has been written consistent with the new AMA framework. The Veteran served on periods of active duty from October 1971 to December 1978 and May 1981 to January 1985. This appeal comes to the Board of Veterans’ Appeals (Board) from a September 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). See August 2019 Decision Review Request: Board Appeal (Notice of Disagreement). The Veteran’s application for service connection for right knee was received by VA in January 2018. The claim was denied in an April 2018 rating decision under the legacy appeals system. In June 2018, the Veteran submitted a RAMP Opt-In Election form and requested higher level review. See June 2018 RAMP Opt-In Election. In September 2018, a Higher-Level Review was completed, and a rating decision was issued denying the Veteran’s claim based on the evidence of record. See 38 C.F.R. § 3.2601(f) (2019) (“The evidentiary record in a higher-level review is limited to the evidence of record as of the date the agency of original jurisdiction issued notice of the prior decision under review and the higher-level adjudicator may not consider additional evidence.”). VA received a timely AMA Notice of Disagreement with the September 2018 rating decision in August 2019. As the Veteran choose the Direct Review Board Review Option on the Notice of Disagreement, the Board will consider only the evidence of record at the time of the September 2018 rating decision. See 38 C.F.R. § 20.202. 1. Entitlement to service connection for right knee replacement The Veteran contends that his right knee replacement disability is related to his active duty service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “nexus” between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A review of the record indicates that the Veteran is currently diagnosed with right knee arthrofibrosis, right knee strain, and right knee joint osteoarthritis. As such, the first Shedden element is met. The Veteran’s service treatment records (STRs) demonstrate that on October 19, 1972, he was treated for incident regarding his right knee after getting out of a truck during service. The STRs states the Veteran’s right knee popped out of the joint for three days and he was treated for pain. See October 1972 STRs. Therefore, the second element of Shedden, in-service occurrence, is met. Therefore, the presumptive question before the Board is the nexus element. The Veteran underwent a private medical examination by Dr. G.B. in December 2017, that was received by VA in January 2018. See January 2018 Private Medical Examination Report. After review of the record and examination, DR. G.B. opined that the Veteran’s knee condition is at least likely as not due to the Veteran’s knee injuries in the military. He noted that the Veteran’s years of manual labor in the military and his specific knee injuries during service have significantly affected the degenerative changes in the Veteran’s right knee. The Veteran underwent a VA examination in March 2018. After in-person examination and review of the record, the March 2018 VA examiner provided a negative nexus opinion concerning the Veteran’s right knee and provided the rationale that there is insufficient evidence to establish a nexus between the Veteran’s right knee condition and military service. The Board finds the March 2018 VA examination inadequate, as the examiner does not provide a sufficient rationale. The Board notes that there are probative medical opinions in favor of and against the claim. The evidence against the claim attributes the absence of information as the inability to render a nexus opinion. The evidence in favor of the claim attributes the Veteran’s right knee disorders to specific in-service injuries as evidenced in the his STRs. After resolving doubt in the Veteran’s favor to include in-service injuries, the Board finds that the evidence is in equipoise. The benefit of the doubt doctrine applies. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the claim, the benefit of the doubt shall be given to the Veteran. Accordingly, entitlement to service connection right knee replacement is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board, R. Smith Department of Veterans Affairs 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.