Citation Nr: A21016264 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 200515-84227 DATE: October 1, 2021 ORDER 1. Entitlement to service connection for right knee condition/pain/issues is denied. 2. Entitlement to service connection for left knee condition/pain/issues is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding the Veteran's right knee disability is related to active service or events therein and there is no evidence of right knee arthritis manifested as chronic in service or to a compensable degree within one year following discharge from active service. 2. The preponderance of the evidence is against finding the Veteran's left knee disability is related to active service or events therein and there is no evidence of left knee arthritis manifested as chronic in service or to a compensable degree within one year following discharge from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 1154, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to July 1992. In August 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the claim for service connection for left and right knee disability (a prior final denial had been issued in a December 2016). In September 2019, the agency of original jurisdiction (AOJ) issued a supplemental claim decision denying both issues. In December 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the September 2019 decision. In April 2020, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior September 2019 decision and continued to deny the claims. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran appealed the April 2020 decision and elected the Direct Review docket. As this is a Direct Review of an HLR, the Board may only consider the evidence of record at the time of the September 2019 decision. 38 C.F.R. § 20.301. While the September 2019 rating decision stated new and relevant evidence had not been received to readjudicate these claims, it adjudicated the issues on the merits. The April 2020 rating decision also adjudicated the claims on the merits. The Board finds these are implicit binding favorable findings of new and relevant evidence, and proceeds to address the appeal on the merits. Entitlement to service connection for a right and left knee disabilities Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The April 2020 rating decision made the favorable findings that (1) the Veteran has current diagnoses of osteoarthritis in both knees, (2) the Veteran has sufficient service to meet the minimum requirements for presumptive service connection, and (3) osteoarthritis is a chronic disease for which presumptive service connection is available. These findings are binding on the Board and establish an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Veteran has not identified any in-service injury or disease to which he believes his bilateral knee disabilities are related. He has made no specific contentions regarding this claim. The Veteran's service treatment records (STRs) do not contain complaints, treatment, or diagnosis for a knee condition. The June 30, 1992 separation examination marks the lower extremities as normal, with no knee complaints. The first recorded complaint of knee pain is in a September 2016 VA treatment record, where the Veteran presented with knee pain and x-ray was ordered. The doctor noted "New joint problems? Yes present with low back pain and bilateral knee." The Veteran declined treatment at that time. The Veteran submitted records from his private physician dated in 2018 and 2019 containing knee complaints, including a June 2019 treatment record reporting knee pain with duration of "months" with "gradual onset, worsening." These records indicate a diagnosis of osteoarthritis of the knee by x-ray on May 2, 2019. The record does not contain any evidence suggesting the disability is related to active service; on the contrary, it indicates that the onset of knee pain is relatively recent, beginning in 2016 (roughly 24 years after separation from service). The Veteran has not been provided a VA examination. VA's duty to provide a medical examination or opinion is not triggered unless the record contains competent evidence or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service, or a disease manifested during an applicable presumptive period; and an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability. McLendon v. Nicholson, 20 Vet. App.79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4). While the evidence here shows a current disability, there is no evidence of an in-service injury or disease, and no indication that the current disability may be related to service. The Board finds that the duty to assist by providing an examination has not been triggered. The most probative evidence shows these disabilities were not chronic in service, did not manifest to a compensable degree within a presumptive period, and were not noted in service with attributable continuity of symptomatology. As such, entitlement to service connection for a left and right knee condition is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Brewer, 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.