Citation Nr: 21061327 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-32 790 DATE: October 1, 2021 ORDER Service connection for a right knee condition is denied. REMANDED A rating in excess of 10 percent for intermittent lumbar strain (back condition) is remanded. FINDING OF FACT The evidence of record does not demonstrate that the Veteran has a current right knee disability, nor that his right knee has any functional impairment in earning capacity at any time during the appeal period. CONCLUSION OF LAW The criteria for service connection for a right knee condition are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from November 1994 to October 1997. The matter is on appeal before the Board from a June 2016 rating decision. The Veteran was scheduled to appear at a Board hearing in January 2020, however, he was a no show. The Veteran's hearing request is deemed withdrawn. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases, based upon a legal presumption, which occurs by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, service connection may be established under 38 C.F.R. § 3.303(b), when a symptom or symptoms of a chronic disease are noted in service, or within a year of the date of separation from service, and when chronicity is established through a continuity of symptomatology after service. The continuity of symptomatology provision is an alternative method to establishing service connection for the specific chronic diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). The Veteran filed a claim for service connection for a right knee condition in June 2014. A review of the Veteran's STRs does not reflect any diagnoses for any right knee conditions. Nor do they show any complaints or treatments that may be related to a right knee condition. A review of the Veteran's VA treatment records does not provide any diagnoses for any right knee conditions, or any complaints or treatments that may be related to a right knee condition. Other than the Veteran's claim for service connection for a right knee condition, the Veteran has not submitted any statements explaining his claimed right knee condition. That is, he has not described his current condition, nor has he provided any explanation for how he purportedly hurt his right knee during his active military service. As such, the Veteran has not been shown to have a current right knee disability, nor has he shown that his right knee has any functional impairment in earning capacity at any time during the appeal period. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Accordingly, service connection for a right knee condition is denied. See 38 C.F.R. § 3.303. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran filed a claim for an increased rating for his back condition in June 2014. He underwent a VA examination in May 2016. In relation to reports of flare-ups and reports of functional loss or functional impairment, "no response provided" was noted. Additionally, the examiner reported that they were unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over time. The examiner did not provide any further explanation other than being unable to say without mere speculation. Also, no response was provided on whether flare-ups limited functional ability. As the May 2016 VA examination did not provide adequate information to be able to rate the Veteran, a remand is warranted to provide the Veteran with a new examination. The Board notes that following the May 2016 VA examination, the Veteran was scheduled to undergo a new VA examination in June 2017. The record reflects that in June 2017 the Veteran cancelled his scheduled appointment and requested a new appointment that would be more than 30 days later. The Veteran was advised that if the appointment was cancelled that he would need to contact VBA and resubmit the claims. He acknowledged that he understood and cancelled the appointment. While there are no indications in the record for why the Veteran cancelled the appointment, the record does indicate that he cancelled the appointment prior to the scheduled date, and that he tried to reschedule the appointment when he cancelled. However, due to him wanting to schedule the appointment more than 30 days out, he was not provided with a new appointment. A remand is warranted to provide the Veteran with a new examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records and associate those documents with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The examiner must fully describe all symptomatology and functional effects associated with this disability. All necessary studies and tests should be conducted. The examiner must review the results of any studies, to include x-rays, prior to completing the examination report. The examination report must include a discussion of the Veteran's documented medical history and lay statements. The examiner must report the range of motion measurements for the lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing (if applicable). The examiner must further comment as to whether there is any pain, weakened movement, excess fatigability or incoordination on movement, and whether there is likely to be additional range of motion loss due to any of the following: pain on use, including during flare-ups; weakened movement; excess fatigability; or incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups. All limitation of function must be identified. The examiner must discuss whether the Veteran has ankylosis of the lumbar spine and, if so, whether it is favorable or unfavorable. The examiner must also determine whether the Veteran experiences intervertebral disc syndrome of the lumbar spine. If so, the examiner must document the number of weeks, if any, during the past 12 months that the Veteran has had "incapacitating episodes." A rationale must be given for all opinions rendered. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.