Citation Nr: 21064226 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-18 832 DATE: October 19, 2021 ORDER Entitlement to service connection for a right knee disorder is granted. FINDING OF FACT The weight of the probative evidence of record establishes that the Veteran's right knee disorder was caused by his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right knee disorder have been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1987 to May 2009. Since the RO last considered the Veteran's claim in June 2020, additional evidence has been added to the Veteran's claims file. The additional evidence includes a July 2020 nexus opinion. Although the Veteran has not provided a waiver of RO consideration of this evidence, a waiver is not needed. An automatic waiver of Agency of Original Jurisdiction (AOJ) consideration applies in this case with respect to the July 2020 opinion submitted by the Veteran because the Veteran's substantive appeal was received after February 2, 2013, and the Veteran has not requested the Board to remand the case for AOJ consideration of the evidence. See 38 U.S.C. § 7105(e). Entitlement to service connection for a right knee disorder Service connection may be established for a disability resulting from diseases or injuries which are present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board concludes that the probative evidence of record is at least in equipoise as to whether the Veteran's right knee disorder was caused by or incurred as a result of the Veteran's active duty service. As a preliminary matter, the evidence demonstrates that the Veteran has a current diagnosis of degenerative arthritis of the right knee and right knee meniscal tear status post meniscectomy. See August 2019 VA examination. Accordingly, a current disability is established. Although the Veteran's service treatment records do not reflect diagnoses of or treatment for a right knee disorder during active duty service, his service personnel records confirm that his duties during active duty service included work as an aircraft mechanic and combat training. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. In an August 2019 VA opinion, a nurse practitioner concluded that the Veteran's right knee disorder was less likely than not related to his active duty service because the Veteran did not complain of knee pain until 2012. In support of his claim, the Veteran submitted a July 2020 medical opinion from C.J., M.D., a board-certified orthopedic surgeon with an added certificate of qualification in sports medicine. After reviewing the Veteran's service treatment records and post-service records, as well as the Veteran's "circumstances and events of his military history," Dr. C.J. opined that "it is highly likely that [the Veteran's] conditions are a direct result [of] the duties related to being an Aircraft Mechanic and extensive combat training that occurred during his military service." Dr. C.J. explained that his opinion was based upon his personal experience and the medical literature which demonstrate that degenerative joint disease can result from experiences such as those that the Veteran endured during his military service. In light of the positive nexus opinion of record, which is highly probative, the Board concludes that the weight of the probative evidence is at least in equipoise as to whether the Veteran's right knee disorder was caused by or incurred as a result of his active duty service. With the benefit of the doubt resolved in the Veteran's favor, service connection for a right knee disorder is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.