Citation Nr: 21064153 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-29 334 DATE: October 19, 2021 ORDER Entitlement to service connection for bilateral knee strain is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's current bilateral knee strain began during active service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral knee strain 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 in the Navy from September 1979 to May 1988 and from August 1989 to August 1995. This matter initially came before the Board of Veterans' Appeals (Board) from a June 2017 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a November 2019 hearing and a transcript of the hearing has been associated with her claims file. In January 2020, the Board remanded this matter for further development. Entitlement to service connection for bilateral knee strain 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, 1131; 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). In this case, the Veteran contends, among other things, that she has current bilateral knee disability and that this disability had its onset in service. The Board finds, for the following reasons, that the Veteran has current bilateral knee strain and that the evidence is at least evenly balanced as to whether this disability began during active service. The report of a December 2020 VA knee examination indicates that the Veteran has been diagnosed as having bilateral knee strain. Thus, current bilateral knee disability has been demonstrated. There is also evidence of bilateral knee symptoms in service and evidence of continuous symptoms in the years since service. In this regard, the Veteran has reported that she began to experience bilateral knee pain, stiffness, and swelling during service (especially in the winter) after spending long hours jumping from boat to boat while performing duties at sea. She also struck her left knee against support equipment during service. Moreover, her post-service medical records and lay statements indicate that her bilateral knee symptoms have continued in the years since service. The Veteran is competent to report bilateral knee symptoms in service and continuous symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board acknowledges that she has provided some information which is inconsistent with a continuity of knee symptomatology in the years since service. Specifically, she reported on a May 1995 report of medical history form completed for purposes of separation from service and on reports of medical history forms dated in January and July 1996 that she was neither experiencing, nor had she ever experienced, any "trick" or locked knee. She did report a history of swollen or painful joints, but she specified on a Standard Form 507 and the January 1996 report of medical history form that this only referred to painful fingers. Nevertheless, the Veteran's May 1995 and January and July 1996 reports are themselves inaccurate because she denied a history of certain medical problems on these forms that are documented in her service treatment records (e.g., respiratory and upper extremity neurological problems). Also, she explained during the November 2019 Board hearing that the examination conducted at the time of her separation from service was not an adequate and thorough examination and that she did not report all of her medical problems at the time of her separation from service because she just wanted "to get out of there" and was not thinking about all of her problems. As there is no other evidence that explicitly contradicts the Veteran's reports and her reports are otherwise generally consistent with the evidence of record and the circumstances of her service, the Board concludes that her reports of bilateral knee symptoms in service and continuous symptoms in the years since service are credible. The nurse practitioner who conducted the December 2020 VA knee examination opined in two separate opinions dated in January 2021 that the Veteran's bilateral knee disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. She reasoned that she was unable to find any service treatment records for knee injury and that the Veteran's entrance, yearly, and separation examinations did not show any problems with either knee. The January 2021 opinions are of little probative value because they are solely based on the absence of clinical evidence of treatment for knee problems during service. The examiner did not take into account the Veteran's competent and credible reports of knee symptoms in service and continuous symptoms in the years since service, and did not address whether her knee disabilities are related to her physical duties in service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). In sum, the evidence reflects that the Veteran experienced bilateral knee symptoms in service and that there have been continuous symptoms in the years since service. She has also been diagnosed as having current bilateral knee strain. There is no adequate medical opinion contrary to a conclusion that the current bilateral knee strain had its onset in service. While the Board could remand the claim for another medical opinion, a request for another 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)). The above evidence is sufficient to decide the claim, as it is at least evenly balanced as to whether the Veteran's bilateral knee strain had its onset in 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 bilateral knee strain is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 ("[N]othing 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"). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.