Citation Nr: 21002375 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-12 379A DATE: January 13, 2021 ORDER Entitlement to service connection for left knee condition is denied. Entitlement to service connection for right knee condition is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has had a left knee condition at any time during, or approximate to, the pendency of the claim. 2. The preponderance of the evidence is against a finding that the Veteran has had a right knee condition at any time during, or approximate to, the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left knee condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102; 3.303, 3.304. 2. The criteria for entitlement to service connection for right knee condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102; 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1958 to July 1960. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the record. The Board remanded the case for further development in December 2019 and September 2020. The case has since been returned to the Board for further appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 38 F.3d 1163 (Fed. Cir. 2004). For the purposes of service connection, pain alone, without any underlying pathology or disease process can constitute a current disability if there is objective evidence that the pain causes functional impairment resulting in a decreased earning capacity. Saunders v. Wilke, 886 F.3d 1356, 1363 (Fed. Cir. 2018). However, where 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. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson451 F.3d 1331, 1335-37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. 1. Entitlement to service connection for left knee condition 2. Entitlement to service connection for right knee condition After careful review of all the evidence of record, the Board finds that the Veteran does not have current bilateral knee conditions for which he can be service connected. Service treatment records are silent for any complaints of or treatments for his claimed left and right knee conditions. Pursuant to a December 2019 Board remand, the Veteran was afforded a VA knee and lower leg examination in January 2020. The Veteran reported that he had no problem with his knees. He denied buckling, pain, and stiffness. He also denied any injury, stating that his knees are “normal.” The examiner found that the Veteran did not have a current diagnosis associated with his claimed bilateral knee condition. The examiner opined that the Veteran’s claimed left and right knee conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner explained that the Veteran reported that he did not have any issues with his knees and stated that he did not know why he had to attend this examination appointment. The examiner reported that the examination yielded normal findings. The examination report indicates that the Veteran had full range of motion in both knees on both flexion and extension without any pain noted on examination; muscle strength was also normal. There was no ankylosis, joint instability, or meniscal condition. Following the September 2020 Board remand, the Veteran was afforded another VA knee and lower leg examination in October 2020. The examiner found that the Veteran did not have a current diagnosis associated with his claimed left and right knee conditions, noting that there was no objective evidence on examination to support diagnoses of the claimed conditions because the Veteran denied having any knee conditions and chose not to proceed with the physical examination. The examiner opined that the claimed conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner explained that on physical examination, the Veteran denied experiencing any knee pain or having any knee conditions. The Veteran reported that he did not want to proceed with the physical examination or his claim for any knee conditions. Post-service treatment records indicate that the Veteran complained of weakness and pain in his left knee in November 2005. See CAPRI, received by VA in September 2014; Medical Treatment Record – Government Facility, received by VA in September 2006. During his July 2019 Board hearing, the Veteran reported stiffness and instability in his right knee and stiffness in his left knee. He also reported that he did not have any pain in his knees. The Veteran stated that these issues with his knees began in service and have continued since that time. The Board finds that there is no evidence of record, lay or medical, that would support a finding that the Veteran’s left or right knee pain causes functional impairment, which results in a decrease of earning capacity See Saunders, 886 F.3d at 1363. The record also contains no diagnosis for a left knee or a right knee condition. Thus, based on the evidence of record, including the Veteran’s denials of any knee conditions and knee pain during his January 2020 and October 2020 VA examinations, the Board finds that the Veteran has not established that there is a current disability for which service connection can be established. In the absence of proof of a current disability there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that the evidence does not reach the level of equipoise regarding the claims of entitlement to service connection for left and right knee conditions. See 38 U.S.C. § 517(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107 (b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107 (a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107 (b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.