Citation Nr: 21072546 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 13-16 166 DATE: December 3, 2021 ORDER Entitlement to service connection for a left knee disability is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, symptoms of the left knee disability, diagnosed as arthritis, had their onset during service and have been continuous since separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.303(b), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1993 to August 1997 and from April 2003 to September 2004. He had additional periods of service in the Reserves between these periods of active duty. In July 2016, January 2018, July 2020, and April 2021, the Board remanded the claim for further development, including verifying the status of the Veteran's service between his periods of active duty and to obtain adequate addendum medical opinions regarding the claimed left knee disability. Although the Board does not find substantial compliance with the Remand directives, upon further review, the Board grants service connection herein. Accordingly, there is no prejudice to the Veteran in deciding the claim on the merits. Service Connection for a Left Knee Disability Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with arthritis of the left knee, which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis The Veteran has a current diagnosis of a left knee disability, to include arthritis. See e.g., January 2021 examination report. Service treatment records dated September 1995 showed that the Veteran complained of knee pain. In March 1996, the Veteran complaint of left leg pain and was diagnosed with a strain and later shin splints. A September 2003 pre-deployment examination noted a history of left knee meniscal tear one year prior. In a February 2004 post deployment examination, the Veteran endorsed having painful joints. During an October 1997 general medical examination approximately two months after discharge from the first period of active duty, the examiner noted that although there was tenderness of both knees, the knees were normal. No x-rays were taken. In 1999, the Veteran complained of bilateral knee pain for two years. In 2009, the Veteran again complained of knee pain. In October 1999, the Veteran again complained of two years of bilateral knee pain. The range of motion of the knee was normal. A January 2001 problem list included bilateral knee pain and in February 2001 the Veteran again complained of bilateral knee pain. In February 2002, he complained of the left knee giving out with exercise. In the April 2013 substantive appeal, the Veteran stated that he believed his knee was a direct result of running during service. He added that he fractures his left tibia (for which he is service connected), which aggravated his knee pain. According to November 2015 x-rays, the left knee showed mild degenerative changes and slight narrowing of the medial joint space. In a March 2017 opinion, a VA examiner opined that the right knee was at least as likely as not related to service but that the left knee was less likely than not related to service. The examiner reasoned that a September 2003 record showed left meniscal tear a year prior and a MRI of both knees in November 2001 showed no meniscus involvement on the left but only on the right. During the examination, the Veteran reported that he noticed knee problems when deployed to Uzbekistan in 2003, at which time he was provided with knee braces after declining a surgery. In a July 2019 addendum opinion, a VA examiner opined that based on all available documentation, the Veteran had bilateral knee degenerative changes but said condition could not be corroborated as having occurred during service. Specifically, service treatment records showed only an isolated complained. The examiner added that between 1997 and until a diagnosis of chondromalacia patellae in 2012, there were no evidence of left knee treatment. The examiner added that the left knee arthritis was less likely than not related to the service-connected right leg condition but rather a continuation of the left knee meniscal tear. In January 2021, the Veteran underwent an additional knee compensation examination, at which time the examiner opined that the claimed condition was less likely than not proximately due to or the result of the service-connected disability. The examiner reasoned that there was no indication that the Veteran had a left knee condition that was caused or aggravated by the right knee condition. The examiner added that the Veteran had been obese for many years, which was a major risk factor for developing DJD. Regarding direct service connection, this examiner opined that it would be mere speculation to state that the Veteran had a left knee pain during service and as such it was less likely than not that the Veteran had left knee pain due to service. Upon review, the Board finds the medical opinions of record lack any significant probative value. The Board previously found the March 2019 and July 2019 opinions inadequate. The Board also finds the January 2021 opinion inadequate because it is a noncommittal opinion and amounts to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility. See Bloom v. West, 12 Vet. App. 185 (1999). Moreover, this examiner also failed to address evidence of continuous complaints of left knee pain since discharge from service in 1997. All opinions solely relied on the lack of recorded medical treatment records post-service to conclude that the currently diagnosed left knee disability was not related to the complaints and treatment for a left knee disability during service and immediately after service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n.1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). However, the Board notes that lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim and cannot be used as a rationale in explaining why the current disability is not related to service. Id. Additionally, all examiners noted that the left knee problems began in 2003; however, the documented medical evidence clearly shows continuous complaints. However, at the time of the January 2017 addendum, there were private records dating back to 2014, which referenced treatment as early as 2010. To the extent that the VA opinion misstates the Veteran's medical history, it is based upon an inaccurate factual premise and is of little to no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Of note, in a precedential decision, the Court held that a negative medical nexus opinion that fails to address the reports of the Veteran's medical history and symptoms along with the Board's lack of credibility finding is inadequate. See Miller v Wilkie, 32 Vet. App. 249, 259-60 (2020). As noted, the opinions solely relied on the lack of objective evidence and did not consider nor address the Veteran's lay reports regarding continuity or even the documented evidence of continuous treatment and complaints of knee pain from 1997 to 2003 between the two periods of active duty service. While the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d 1331. In this regard, although no documented medical evidence is available from 2003 to 2007, the Board finds the Veteran's lay reports as to continuity of symptoms both competent and credible. After review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence is at least in equipoise on the question of whether the noted left knee disability in service is related to the diagnosed post-service left knee disability. See 38 C.F.R. § 3.303(b). As discussed above, there is indisputable documented medical evidence of multiple left knee complaints and treatment in service. In addition, immediately after the first period of active duty and until the until reenlistment the Veteran continuous to complain of left knee pain. Thereafter, he continuous to receive treatment throughout the pendency of the appeal. The Veteran competently and credibly asserted that symptoms of his left knee pain have been continuous since separation from active duty. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that symptoms of arthritis had their onset in service and have continued ever since. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. This is sufficient to satisfy the nexus requirement. Hence, service connection for the Veteran's left knee disability must be granted. S. B. MAYS 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.