Citation Nr: 21068314 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-03 856A DATE: November 10, 2021 ORDER Service connection for a right knee condition is granted. REMANDED A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT The Board finds the probative evidence of record, including a September 2006 VA examination, supports a finding that the Veteran injured her right knee during service which has persisted since exiting from service. CONCLUSIONS OF LAW The criteria have been met for service connection for a right knee condition to include secondary to service-connected bilateral pes planus. 38 U.S.C. § 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from June 1998 to June 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal from November 2013 and December 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were before the Board in October 2018 and April 2021 and were remanded for further development. Service connection for a right knee condition is granted. Legal Criteria Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background The Veteran sustained injuries including two separate motor vehicle accidents during service in 1999 and 2000 and subsequently reported right knee pain. See July 2000 and February 2004 service treatment notes. The Veteran has a diagnosis of a right knee condition as evidenced by a September 2006 VA examination. The conducting physician indicated that the Veteran's right knee condition has existed since 2003 and that the condition occurred in the line of duty. The Veteran was afforded a November 2017 VA examination during which the conducting physician opined that it was less likely than not that the Veteran's right knee condition was causally related to service. The physician acknowledged that the Veteran did not report right knee pain until February 2003 which was three years after the motor vehicle accident and that there were no subsequent treatments nor reports of right or left knee pain. The Veteran was also afforded an August 2021 VA examination during which the conducting physician opined that it was less likely than not that the Veteran's right knee condition was causally related to his service-connected bilateral pes planus. As a rationale, the physician explained that the medical literature is controversial regarding secondary causes of musculoskeletal biomechanical changes and is based on empirical evidence and not on randomly controlled double-blind studies. The physician explained that observation of the Veteran's gait has been cited as normal in numerous documents. Analysis The Board finds that the evidence of record indicates that the Veteran has a diagnosis of a right knee condition. The Board also notes that the evidence indicates that the Veteran reported experiencing right knee pain throughout service following two motor vehicle accidents. Turning to the question of whether there is a nexus, or causal link, between the current shown disability and service, the Board finds that the evidence shows the Veteran's right knee condition began during service and has persisted since that time. The Board assigns probative value to the September 2006 VA examiner's opinion that the Veteran's right knee condition has existed since 2003 and that the condition occurred in the line of duty based on their review of the claims file. The Board cannot assign probative value to the November 2017 VA examiner's opinion that the Veteran's right knee condition was not related to service because they made several inaccurate remarks regarding the facts of this matter. First, they remarked that the Veteran did not report right knee pain until February 2003 when the evidence indicates that the Veteran reported right knee pain in July 2000. Additionally, the examiner erroneously remarked that the Veteran did not have any subsequent complaints of right knee pain when the evidence indicates that the Veteran reported right knee pain in February 2004. As such, the Board cannot assign this opinion any probative value. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the most probative evidence of record supports a finding that the Veteran injured her right knee during service which persisted after exiting from service. Accordingly, service connection for a right knee condition is granted. REASONS FOR REMAND The claim for a TDIU rating is remanded. In November 2019, the Veteran put in a request to invoke intermittent leave under the Family and Medical Leave Act (FMLA) due to mental health symptoms. The Board remanded this matter in April 2021 in order for the Veteran to have an opportunity to submit a formal claim for a TDIU. Given that the Veteran has not yet submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, this matter is remanded in order for the RO to undertake additional development, to include obtaining a VA Form 21-8940, as such would be helpful in determining the Veteran's employment status throughout the relevant period, education, and service-connected limitations. Finally, on remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Provide the Veteran with appropriate notice regarding the TDIU claim and request that she complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Explain what is needed to establish entitlement to TDIU due to her service-connected disabilities. Ask the Veteran to submit any additional evidence in support of a TDIU claim, to specifically include information on her work history, salary, and educational history. 2. Adjudicate the Veteran's TDIU claim. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.