Citation Nr: 21071367 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 12-34 730 DATE: November 30, 2021 ORDER Entitlement to service connection for a left knee disability is granted. FINDING OF FACT It is just as likely as not the Veteran's left knee disability is attributable to his military service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for a left knee disability. 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 from February 1964 to November 1965. In October 2019, the Board denied this claim, and, in response, the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). In an August 2020 Order, the Court granted a Joint Motion for Remand (JMR) filed by the contesting parties, vacating the Board's decision denying this claim and remanding it back to the Board for further development and readjudication consistent with the terms of the JMR. In April 2021, to this end, the Board in turn remanded this claim back to the local Regional Office (RO) (Agency of Original Jurisdiction (AOJ)). Entitlement to service connection for a left knee disability The Veteran contends that his left knee disability is related to his service. Specifically, he contends that he injured this knee while jumping out the back of a truck during his service, in 1965, and that he has chronic disability as a result. The evidence of record establishes the Veteran has a current diagnosis of osteoarthritis of his left knee. Consequently, resolution of the appeal of this claim turns, instead, on whether there also is the required attribution of this disability to his military service including to the injury being specifically claimed. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Watson v. Brown, 4 Vet. App. 309, 314 (1993). A July 1965 service treatment records (STR) notes the Veteran's report of intermittent left knee pain after jumping off a truck. So, there is no disputing he sustained that injury during his service. In support of his claim and the posited correlation ("nexus") between his currently diagnosed left knee disability (osteoarthritis) and that injury during his service, the Veteran submitted private medical opinions written in February 2018 and September 2021. The February 2018 commenting provider indicated that the Veteran had been under his care for many years. This clinician opined that the Veteran's current left knee disability is related to a stress fracture during his service. The more recent September 2021 commenting provider considered the Veteran's service history and statements including his reports of an injury while jumping out of a truck and concluded that it is at least as likely as not his current left knee disability is due to that injury in service In support of this conclusion, this commenting provider cited to medical studies finding that "knee disease is very commonplace in Veterans who have endured basic military training" and "individuals prone to knee pain have symptoms during physically demanding military service and later in life". This commenting provider acknowledged the Veteran's complaint of left knee pain following his injury in service and surmised that his current symptoms of knee disease are at least as likely as not consistent with post-traumatic arthritis, which develops after an acute direct trauma to the joints. The Board also acknowledges the VA examinations and consequent opinions that conversely are against this claim. Ultimately, however, the Board finds the VA opinions deficient and certainly no more probative (competent and credible) than the private opinions supporting the claim, particularly the September 2021 private opinion. In relevant part, the December 2011 VA examiner determined that the Veteran's left knee disability is less likely than not related to his service. The rationale referenced the normal separation examination, which in the examiner's opinion meant the injury in service had resolved by the time of discharge. In a subsequent February 2018 VA opinion, requested pursuant to the Board's October 2017 remand directive, a VA orthopedic surgeon concluded that the Veteran's diagnosed bipartite patella was not a fracture. The rationale cited his medical evidence history not showing a prior fracture of the patella and imaging studies showing the location of the bipartite patella was consistent with a developmental fusion failure, as opposed to a fracture. This VA examiner thus concluded that the condition did not lead to degenerative joint disease (arthritis) and that the left knee disability consequently is less likely than not to have occurred because of the Veteran's active military service or to be causally related to his injury in service. Those unfavorable medical nexus opinions notwithstanding, the Board finds that the December 2011 VA examiner appears to have ignored the Veteran's competent reports of ongoing left knee symptoms since his injury in service. An opinion based on the absence of treatment records without consideration of a Veteran's competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Likewise, the February 2018 VA medical opinion though by an orthopedic surgeon, is no more probative than the September 2021 private opinion in explaining why the current left knee osteoarthritis is versus is not the result of the Veteran's documented injury in service. Accordingly, resolving this reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for his left knee disability. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.