Citation Nr: 21067675 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 18-48 482 DATE: November 5, 2021 ORDER Entitlement to service connection for a stroke, to include as secondary to traumatic brain injury (TBI), is denied. REMANDED Entitlement to an initial rating higher than 10 percent for right knee instability is remanded. Entitlement to an initial rating higher than 10 percent for right knee arthritis with history of pulled ligament is remanded. Entitlement to an initial rating higher than 10 percent for left knee patellofemoral pain syndrome status post meniscal tear is remanded. FINDING OF FACT The evidence is against finding a current diagnosis of stroke or residuals thereof during the pendency of the appeal. CONCLUSION OF LAW The criteria for service connection for stroke are not 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 had active service from July 1969 to June 1971 and from August 1971 to July 1975, with subsequent Army Reserve and National Guard service. This appeal stems from a December 2014 rating decision that assigned the initial rating for the right and left knee disabilities and denied service connection for a stroke. Service Connection for Stroke Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). The Veteran initially generally claimed service connection for a stroke; however, in the June 2015 notice of disagreement, he mentioned that the stroke was related to the service connected TBI. Nevertheless, on review of all the evidence, the Board finds that the Veteran does not have a diagnosis of stroke or residuals thereof. Specifically, medical treatment records showed that the Veteran told medical providers he had a stroke in 1989 and/or 1994. However, a review of the medical evidence does not show that he in fact had a stroke. For example, 1994 records showed that the Veteran's father died from a stroke but noted nothing about this Veteran having a stroke. At the same time, an MRI and CT of the brain showed no evidence of a stroke. In 1998, a medical professional noted the Veteran's lay reports of having a stroke but noted that he had negative neurological tests and negative CT/MRI. In 2008, the Veteran indicated that he had a stroke in the mid-1990s but denied having any residual symptoms. In 2009, the Veteran again reported that he had a stroke six years earlier. Nevertheless, other than the Veteran's lay reports about having a stroke, no medical professional and no competent study revealed any evidence of a stroke. In analyzing this claim, the Board recognizes that the Veteran is competent to report his observable symptoms; however, his lay statements are not competent to attribute his symptoms to a certain medical disability, as he is not shown to possess the medical training to do so. The Board finds the objective medical evidence based on medical testing to be more probative than the Veteran's lay assertions. The laws authorizing Veterans' benefits provide benefits only where there is current disability, as identified by a medical diagnosis. In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board concludes that the Veteran has not presented competent evidence showing that he has a current diagnosis of a stroke or residual thereof, and that any symptoms he has that resemble stroke residuals can be attributed to the service connected TBI and seizure disorder, which are rated 40 percent and 100 percent disabling. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). For the reasons and bases discussed above, the preponderance of the evidence is against the Veteran's service connection claim for sleep apnea, and it therefore must be denied. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2020). REASONS FOR REMAND A remand is necessary to provide the Veteran with an adequate VA examination to help determine the current severity of the right and left knee disabilities. The most recent examination of the bilateral knee disabilities was in March 2018, at which time the Veteran reported having flare-ups and functional loss after repeated use over time. Although the examiner noted that the Veteran was examined immediately after repeated use over time, the estimated additional loss in range of motion showed no difference in the right knee and improvement in the left knee. In addition, although the examiner noted that the examination report was medically consistent with the Veteran's statements describing functional loss during flare-ups, the examiner stated that it was not possible to estimate additional loss in terms of range of motion without resorting to mere speculation because the examination was not conducted during flare-ups. However, the examiner did not use the information provided by the Veteran or obtain additional information from the Veteran or the treatment records with respect to the frequency, duration, characteristics, severity, or functional loss during flare-ups and after repetitive use. The Court held that "before the Board can accept an examiner's statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the "medical community at large" and not the insufficient knowledge of the specific examiner." See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). As such, a new VA examination is warranted. The matters are REMANDED for the following actions: 1. Ensure all outstanding VA treatment records are associated with the claims file. 2. Thereafter, provide the Veteran with a VA examination to help identify the current severity of the right and left knee disabilities. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of the right and left knee disabilities throughout the pendency of the appeal from December 2013, forward. In doing so, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joint in question and the paired joint should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. 3. Thereafter, readjudicate the remanded claims. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.