Citation Nr: 21002631 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-48 949 DATE: January 14, 2021 ORDER Entitlement to service connection for a right knee condition is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not that his right knee condition is etiologically related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right knee condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from February 1975 to February 1977. This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 Regional Office (RO)rating decision. In December 2019, the Board denied the Veteran’s claim for service connection for a right knee condition. The Veteran appealed the decision to the CAVC which, in August 2020, partially vacated the decision and remanded it for further development. See Tucker v. West, 11Vet.App. 369, 374 (1998) (remand is appropriate “where the record is otherwise inadequate”). Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for a right knee condition The Veteran contends that his right knee condition is a result of his military service Specifically, he asserts that he jumped down from a tank and twisted his right knee while stationed at 29 palms. Based upon the evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board determines that service connection is warranted for his right knee condition. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309. The Veteran reported that he received treatment at Poudre Valley Hospital in 1977 and six months after his military service he self-medicated with OTC medications including: ibuprofen, aspirin, and anti-inflammatories. Additionally, the Veteran reported that he used to wrap cloth around his knee and eventually had to use neoprene wraps. The Veteran also reported that he received injections in his right knee twice a year in 1990s, underwent surgery 1992 for torn meniscus cartilage and underwent a second surgery in 1996. Further, the Veteran’s mother stated while visiting 29 Palms, the Veteran told her he was placed on light duty due to his injuries and his wife stated that the Veteran suffered consistently with pain and swelling of right knee since his injury in the military and had to start wrapping his knee with ace bandages daily. Here, the evidence is at least in equipoise that his right knee condition is related to active duty service. Specifically, in a March 2015 statement, the Veteran’s private physician stated that it was not possible to definitively determine if this injury or others he incurred in military service are direct causes for his bilateral knee osteoarthritis, but it is again reasonable to stated that they were also contributing factors. Further, a correspondence from the Veteran’s chiropractor received in October 2019, states that the trauma that the Veteran has described that he incurred during his military career would be considered probable causal source from his knee pain. Given the private physician's examinations of the Veteran and reviews of his treatment records, the Board finds that the physician's opinions are entitled to substantial probative weight. Accordingly, both private physician's opinion’s and the Veteran's service treatment records, in conjunction with the competent and credible statements and testimony by the Veteran, his wife, and his mother show that the evidence is at least in equipoise that his right knee condition is are related to active duty service. The Board acknowledges the negative evidence, including the reports from the August 2016 VA knee examination. The report from that examinations reflects that the examiner determined that his right knee condition was less likely than not incurred in or caused by active duty service. The Board finds that this examination report is not entitled to significant probative weight because the examiner did not address the testimony and statements by the Veteran and his wife. See Miller v. Wilkie, No. 18-2796, 2020 U.S. App. Vet. Claims LEXIS 64, at *19-20 (Jan. 16, 2020). Additionally, the examiner's rationale relied on gaps between when he sought treatment after his separation from service and his separation from service. The Board notes that the VA examiner did not consider the Veteran’s lay statements and explanation as to why treatment records in closer proximity to his separation from service. By virtue of the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the evidence is at least in equipoise that his current right knee condition is etiologically related to his active duty service. Accordingly, service connection is granted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vample, Associate Counsel