Citation Nr: 21076435 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-50 092 DATE: December 23, 2021 ORDER Service connection for left knee arthritis is granted. Service connection for right knee arthritis is granted. REMANDED Service connection for loss of consciousness is remanded. Service connection for right shoulder injury is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the record shows that the Veteran's left knee condition is related to service. 2. Resolving all doubt in the Veteran's favor, the record shows that the Veteran's right knee condition is related to service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for left knee have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for right knee have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1989 to October 1991. Her decorations include the Parachutist Badge. This appeal stems from July 2012 and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Veteran's claim of service connection for loss of consciousness has been recharacterized to include all neurological health disabilities, to include traumatic brain injury, vertigo and dizziness, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. Bilateral knees The Veteran seeks service connection for her bilateral knee condition. In support, the Veteran reported having bilateral knee problems in service and thereafter. Indeed, her service treatment record confirms knee problems and pain. See STR (March and April 1989). The Veteran reports having pain and corresponding limitation of motion as well as right knee and left knee instability. The Veteran has a diagnosis of bilateral knee arthritis and genu varus deformity, and left knee strain. See VA medical examination (July 2017); see also VA medical treatment record (July 2020). Thus, the first element of service connection is met. Throughout the appeal, the Veteran has stated that her bilateral knee condition has been recurrent since service. The Board acknowledges that on July 2017 a VA examiner provided a negative nexus opinion on the relation of the Veteran's knees condition to service. However, consistent with the Veteran's reports, the evidence on record shows that the Veteran's disability on her knees is related to service, which includes pain and corresponding limitation of motion as well as right knee and left knee instability. The Board finds that the medical and lay evidence linking the Veteran's bilateral knee disability to service is probative, competent and credible. Indeed, the record shows knee problems and medical treatment in service and thereafter. See STR (April 1989); see also VA medical treatment record (April 2013 and July 2020). The evidence shows that the Veteran's bilateral knee disabilities are related to service, thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). The Board finds the Veteran's statements and medical records credible in showing that her bilateral knee conditions are related to service. The Veteran is competent to report her bilateral knee symptoms that began in service and the Board finds the Veteran's statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the lay evidence is consistent with other evidence of record, both medical and lay, and further finds that it is competent and credible. Thus, service connection is warranted for her bilateral knee condition. In light of the competent lay and medical evidence linking the Veteran's bilateral knee disability to service, the Board finds that the Veteran's bilateral knee disability had its onset during his period of military service. As such, service connection is granted. See 38 C.F.R. § 3.303(a). REASONS FOR REMAND 2. Right shoulder and neurological condition The Veteran reports that service connection is warranted for her right shoulder and neurological conditions. In support, the Veteran's reported that her right shoulder condition started in service after suffering an injury during her parachute training. Additionally, her neurological condition also started in service after she lost consciousness while in training. See BVA hearing transcript (August 2021). The service treatment records confirms that the Veteran was treated for vertigo, dizziness and a head condition in service. See STR (August 1989). Additionally, her VA medical treatment record shows a diagnosis and medical treatment for her dizziness. See VA medical treatment record (September 2012, May 2014 and January 2021). Further, her father provided a credible and competent statement about the Veteran calling him and telling him about her passing out during basic training. See Buddy statement, R.H., (August 2021). The Veteran asserts that service connection is warranted for her right shoulder and neurological conditions since there onset was in service. To date, she has not been provided a VA examination and the Board finds affording one to the Veteran is necessary to adjudicate this appeal. As there is no examination to determine the nature and onset of her right shoulder and neurological condition, a remand is necessary to have the Veteran examined and for an examiner to review her claims folder and provide opinions necessary to adjudicate this appeal. The matters are REMANDED for the following action: 1. Obtain complete VA and non-VA treatment records of the Veteran's right shoulder and neurological conditions. 2. Notify the Veteran that she may submit additional lay statements from herself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of her in-service and post-service right shoulder and loss of consciousness injuries and or issues. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). Whether an in-person examination is necessary should be determined by the examiner. The examiner must opine as to whether it is at least as likely as not that the Veteran's right shoulder and neurological conditions are related to or had their onset in service. A diagnosis of traumatic brain injury (TBI) must be ruled in or excluded. Moreover, the examiner must review all the competent medical and lay evidence, about the Veteran's right shoulder and neurological conditions onset, etiology, nature and symptoms in and after service. In offering this opinion, the examiner must acknowledge and discuss the Veteran's competent and lay statements of her conditions and any lay evidence regarding the onset of her disabilities, to specifically include the statements received by VA in August 2021. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.