Citation Nr: 21005217 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 20-17 699 DATE: January 29, 2021 ORDER Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right knee disorder is denied. REMANDED Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a right foot or ankle disorder is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or by reason of being housebound is remanded. REFERRED The record shows that the Veteran may want to pursue a claim for entitlement to special monthly pension based on the need for aid and attendance or by reason of being housebound based on the notation of such in the September 2019 evaluation from his private treatment provider. This is referred to the agency of original jurisdiction (AOJ) for appropriate action. FINDING OF FACT The Veteran has not been shown to have a current left or right knee disorder that manifested in service or within one year thereafter or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from November 1958 to November 1988. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision by the Department of Veterans Affairs (VA). The Veteran requested a Board hearing in his April 2020 substantive appeal; however, he cancelled that request in a September 2020 written statement from his representative and has not since requested a hearing. Thus, his hearing request is considered withdrawn. The Board also notes that the right foot claim has been recharacterized to include the right ankle, given the AOJ’s expanded consideration of the issue. See March 2020 statement of the case. Law and Analysis Initially, the Veteran was not provided a VA examination in connection with his service connection claims decided herein. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. This development is necessary if the evidence of record: (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of a disability; (2) establishes that the claimant suffered an event, injury, or disease in service, or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, or with another service-connected disability; but (4) does not contain sufficient competent medical evidence to decide the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the evidence does not show that the Veteran has a current left or right knee disability or persistent or recurrent symptoms of a disability. The evidence also does not show that he had any injury, disease, or event in service to which any current left or right knee disorder could be related. Based on the foregoing, the Board finds that a VA examination or medical opinion is not necessary for these claims. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for a left or right knee disorder. The Veteran filed the claims for service connection for left and right knee disorders in March 2018, without any specific contention as to in-service injury or a possible relationship to his military service; subsequent submissions confirmed he was seeking service connection for the knees without further information as to such a relationship, claimed onset, or claimed ongoing symptomatology since service. See October 2019 application form (claimed service connection for additional disabilities, along with notation of painful degenerative arthritis of both knees) and January 2021 representative written appellate brief (noted Veteran’s sincere belief that he has bilateral knee disorders related to his military service without further information). The post-service evidence does not show that the Veteran has a current left or right knee disorder diagnosis. In fact, the available private treatment records from 2016 and 2017 show that the Veteran was treated for other medical issues. His musculoskeletal system and extremities were found to be normal during those evaluations as recently as a September 2017 appointment, several months before he filed his claim. He also did not report any problems with his knees at those times. See also October 2019 AOJ letter (requested completed releases for treatment records; no additional releases submitted). The September 2019 private evaluation the Veteran submitted in support of his SMC claim shows that his left lower extremity weakness and unsteady gait are residuals of a nonservice-connected stroke for which he has a separate pending claim. The Board has considered the Veteran’s contention that he believes he may have degenerative arthritis of the knees. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the diagnosis of such a disease falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In addition, the Veteran’s service treatment records do not document any complaints, treatment, or diagnosis of a left or right knee problem. His relevant body systems were found to be normal at the time of the July 1958 entrance examination with November 1958 review and August 1988 retirement examination, as well as on the multiple periodic service examinations, and he denied a history of relevant symptoms on corresponding reports of medical history. To determine that a chronic disease was “shown in service,” the disease identity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303(b); Walker, supra. The service treatment records do not show that the Veteran had arthritis during service. Therefore, chronicity is not established in service. Moreover, the record contains no indication that such a disorder manifested to a compensable degree within one year of his military service. See also 38 C.F.R. § 4.71a, Diagnostic Code 5003 (arthritis must be objectively confirmed by x-ray). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Moreover, even if he had such a diagnosis or functional impairment, the evidence, including the Veteran’s own submissions, does not show that he had any injury, disease, or event in service to which a current left or right knee problem could be related. See also Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (the absence of any one element will result in denial of service connection). Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran’s claims. As such, the benefit-of-the-doubt rule does not apply, and the claims are denied. Gilbert, 1 Vet. App. 49, 53. REASONS FOR REMAND On review, the Board finds that additional development is necessary prior to final adjudication of the Veteran’s remaining claims. Specifically, the Veteran was scheduled for a VA foot examination in August 2019. The Veteran failed to report for that examination, but the record indicates that he was in the process of moving around that time. See August 2019 returned correspondence, AOJ follow-up letter, and claims file memoranda. He provided a new mailing address to VA the following month, and he did appear for VA examinations for other claims several months later. Based on the forgoing, the Veteran should be afforded another opportunity to appear for this VA examination. The SMC claim is inextricably intertwined with the service connection claims. The case is REMANDED for the following actions: The Veteran should be rescheduled for a VA examination to determine the nature and etiology of any current left and/or right foot and right ankle disorder that may be present. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. If the Veteran reports that he does not feel well enough to attend an in-person VA examination, consideration should be given as to whether the claims file contains sufficient information to obtain a VA medical opinion instead. See November 2020 representative written statement. The Veteran and his representative may wish to submit additional information in this regard. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment and personnel records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current left foot, right foot, and right ankle disorders. For each diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise related to the Veteran’s military service, including any symptomatology therein. The service treatment records show that the Veteran twisted his left foot (inversion) in April 1969 with an x-ray showing deviation of the first metatarsal bone without a fracture seen on x-ray. In July 1981, he hit his right foot against a steel bar and had edema and tenderness of the right side of the foot without fracture on x-ray. In November 1983, he reported both feet had a rash, itch, and soreness for a long time; the assessment was fungus of the feet. The service treatment records also include a June 1980 examination that shows the Veteran sprained his right ankle in January 1980 without sequelae. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Postek, 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.