Citation Nr: 21062503 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-50 078 DATE: October 7, 2021 ORDER Entitlement to service connection for right knee patellofemoral chondromalacia is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's right knee patellofemoral chondromalacia is related to her active duty service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right knee patellofemoral chondromalacia are 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 on active duty from November 1989 to January 1998 and January 2003 to July 2003 and performed service in the Navy Reserve. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the claim of service connection for right knee condition. In March 2019, the claim of service connection for right knee disability was remanded by the Board for further development. As the Board is granting the claim of service connection in full, discussion of compliance with the Board's March 2019 remand instructions is unnecessary. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for right knee patellofemoral chondromalacia Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends her right knee pain symptoms began in service and have continued since her separation from service. Multiple service treatment records noted the Veteran's complaints of right knee pain, to include a January 1994 service treatment record indicating right knee trauma. In June 2020, a VA physician found that the Veteran's right knee patellofemoral chondromalacia was less likely than not related to service. The physician reasoned that there was no service treatment record of significance in the Veteran's first period of active duty, no diagnosis within one year of her first period of active duty, and no diagnosis through 1994. For the following reasons, entitlement to service connection for right knee patellofemoral chondromalacia is warranted. An October 2014 private treatment record noted the Veteran's diagnosis of right knee patellofemoral chondromalacia. Thus, the Veteran meets the current disability requirement. A January 1994 service treatment record noted the Veteran's diagnosis of right knee trauma. Thus, the Veteran meets the in-service injury requirement. The June 2020 VA opinion is of little probative weight as it relied on the lack of contemporaneous medical evidence without considering the Veteran's lay statements regarding continuous right knee pain symptoms both in and since her separation from service. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Moreover, the June 2020 VA opinion is based on an inaccurate factual premise. Specifically, the VA physician reasoned that there was no service treatment record of significance in the Veteran's first period of active duty when there was a June 1994 service treatment record documenting right knee trauma. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). The Veteran reported that she experienced right knee pain symptoms in and since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan, 451 F.3d at 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Veteran's reports are credible and competent as there is nothing to explicitly contradict them. To the extent that the grant of service connection in this matter is based primarily on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Id. at 1335. At this point, the Board could remand the claim for a VA examination or opinion. However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order) (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'" (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). (Continued on the next page) For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's right knee patellofemoral chondromalacia is related to her active duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right knee patellofemoral chondromalacia is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.