Citation Nr: 21061534 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 15-23 183 DATE: October 4, 2021 ORDER Entitlement to service connection for a right knee disability, status post total right knee replacement, is denied. FINDING OF FACT The Veteran's right knee disability, status post total right knee replacement was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a right knee disability, status post total right knee replacement, have not been met. 38 U.S.C. §§1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from June 1961 to February 1965. This matter comes before the Board of Veterans' Appeals (Board) from a August 2014 rating decision, issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran had a hearing before a Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the electronic claims file. In a May 2019 decision, the Board remanded the issue for further development of the record and a new VA examination. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). In August 2021, the Board sent a letter to the Veteran, informing him that the VLJ who conducted his hearing was no longer able to participate in the adjudication of his decision. The Board notified the Veteran that he has the right to request another hearing if he so chooses. 38 U.S.C. § 7107(c); 38 C.F.R. § 19.3(b), 20.707. Additionally, the Board notified the Veteran that if he did not respond within 30 days of the letter, the Board will assume that he does not want another hearing and will proceed accordingly. At this time, the 30-day abeyance period has passed and the Veteran has not responded. Therefore, the Board is prepared to fully adjudicate the claim. The Board is satisfied that there was substantial compliance with its remand orders and is prepared to adjudicate the issue at hand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a right knee disability, status post total right knee replacement The Veteran contends that he is due entitlement to service connection for a right knee disability. Specifically, the Veteran claims his right knee disability is directly due to an event that occurred in service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004). The Veteran's service treatment records (STRs) were reviewed and found to be silent as to any complaint, treatment, or diagnosis for a right knee injury. Specifically, no knee injury was found at the time of the Veteran's enlistment, nor were any complaints noted at any point during his time in active-duty service. Finally, no knee pain or issues of the knee were documented on the Veteran's separation examination, and the Veteran did not report any knee problems at that time. The first recorded complaint of a right knee disorder in the record comes in March 2008. The Veteran had an initial visit with Dr. P.C.M. at Scranton Orthopedic Specialists. The Veteran has numerous medical records from Scranton Orthopedic Specialists, spanning from the initial March 2008 visit, up through June 2014. The Veteran was consistently found to have right knee degenerative joint disease. The Veteran claimed that he first injured his knee in the Navy. However, no physician has offered an opinion on whether the Veteran's knee disability did begin in or is otherwise related to his service. In April 2014, the Veteran claimed that he had noticed increasing pain in his knee for the past 10 years. He also began to receive treatment from the Wilkes-Barre VA Medical Center (VAMC) in April 2014 as well. Eventually, in May 2014, the Veteran received a right knee arthroplasty (total knee replacement) from one of his private doctors, Dr. H.W.S. In February 2015, the Veteran submitted a lay statement into the record. He stated that while in the Navy, he slipped on a grease-lined deck and hit his knee. On the October 2018 Board hearing, the Veteran testified that after he hit his knee, he went to sick bay where the knee was wrapped with an ace bandage. The Veteran was in the Navy for two years after the incident. He claimed that he experienced pain during those years but did not report to sick bay again. While the VLJ did specifically note that he found the Veteran to be credible as to his in-service incurrence, it was noted that no doctor had offered an opinion to the Veteran linking the current right knee injury to the events in-service. In November 2018 the Veteran was afforded a VA examination. The examiner noted the Veteran's degenerative joint disease of the right knee. He also noted that the Veteran had a limited range of motion in his right knee, with flexion only measuring to 115 degrees, where normal range of motion would find flexion measuring to 140 degrees. In May 2019, the Board remanded the Veteran's claim, noting that the Veteran reported that he had received treatment from a private physician Dr. J.D. before he began receiving treatment at Scranton Orthopedic Specialists. He specifically stated in the record that he received an arthroscopic knee scope from Dr. J.D. The Board remanded the right knee claim to the VA so that the RO could attempt to obtain the private treatment records from Dr. J.D. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. This duty includes assisting the Veteran in the procurement of pertinent medical records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's available service treatment records, VA treatment records, and the available private treatment records. The Veteran has not identified any additional outstanding records that have not been requested or obtained. Also, the Veteran was afforded a VA examination in November 2018 and December 2020, with an additional VA medical opinion in May 2021. Following the May 2019 Board remand, the RO requested for authorization from the Veteran to obtain outstanding private treatment records, specifically from Dr. J.D. in November 2019, July 2020, January 2021, and February 2021 correspondence, attaching a blank Form VA 21-4142a to each letter (General Release for Medical Provider Information) for the Veteran to complete VA's request. As of the date of this decision, no response has been received from the Veteran. VA also provided the Veteran a new VA examination in December 2020. Therefore, VA's Duty to Assist has been fulfilled. The December 2020 VA examiner noted the Veteran's report of flareups, as well as functional loss he experiences due to his right knee disability. The Veteran also showed additional loss of motion since his November 2018 exam, with flexion only measuring to 85 degrees. The Veteran also notes that the right knee stiffens when sitting and is in pain when going up or down stairs and inclines. The right knee also has swelling, disturbance of locomotion and interference with standing. It also has a decided reduction in muscle strength on flexion and extension. The examiner opined that the right knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner offered a rationale, stating that all the records had been reviewed and the examiner had been unable to find sick call records from either 1963 or 1964 to address the injury that the Vet stated he had while on active duty. It was noted that the separation examination was also silent for any knee condition. The examiner therefore concluded that the Veteran's total right knee replacement was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In May 2021, VA obtained an addendum medical opinion. The VA examiner stated that all records had been reviewed and the Veteran's right knee condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Additionally, the examiner opined that it was less likely than not that the right knee disability was aggravated by active-duty service, based upon the examiner's record review. After a full and thorough review of the record, the Board finds that the Veteran's entitlement to service connection for a right knee disability is denied. The Veteran has a clear current disability of the right knee, characterized as status post total knee replacement. Therefore, the first Shedden element is met. The Veteran is also noted to be credible in his October 2018 Board hearing, testifying as to an in-service incurrence where he slipped on the deck of the U.S.S. Donner, which would satisfy the second Shedden element. However, the Board finds no records in the claims file that link the current disability to any event in-service. Specifically, the Board finds that even aknowledging that the Veteran fell and hit his knee during service, any such injury was acute and resolved; it did not result in a chronic knee disorder during service. This finding is corroborated by the December 2020 and May 2021 VA examiners, both of whom relied on the fact that the Veteran's right knee was found to be clinically normal at his separation examination. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that the evidence supporting this claim does not rise to a level of equipoise. See Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009). Rather, the preponderance of the evidence is against finding that entitlement to service connection for a right knee disability is warranted. 38 C.F.R. §§ 3.303, 3.304. For the reasons stated, the benefit-of-the doubt standard of proof does not apply, and the claim for entitlement to service connection must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.