Citation Nr: 21076758 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 19-25 477 DATE: December 27, 2021 ORDER Entitlement to service connection for left knee degenerative arthritis is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's left knee degenerative arthritis is related to his active duty service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left knee degenerative arthritis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to November 1969. He is a recipient of the Combat Infantryman Badge (CIB). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the claim of service connection for left knee arthritis secondary to left knee injury. In September 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Entitlement to service connection for left knee degenerative arthritis The Veteran contends that he injured his left knee during a parachute jump during training in service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran's CIB reflects that he engaged in combat. The finding that a veteran engaged in combat allows a combat veteran to use satisfactory lay or other evidence to establish that he was injured or incurred a disability while on active duty, even in cases where there is no official record that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)). Moreover, the fact that the Veteran engaged in combat with the enemy not only assists him in establishing the in-service disease or injury element, but may also assist him in establishing the incurrence of the disability itself. Id. The clinical evaluations during the Veteran's enlistment examination in September 1965 were normal. During a May 2018 VA examination, the VA examiner found that the Veteran's left knee disability pre-existed service as the Veteran had apparently injured his left knee in an automobile accident prior to service. His service treatment records were silent for left knee complaints of pain or treatment, and his separation examination did not reflect any evidence of ongoing left knee condition or pain. Moreover, arthritis of weight-bearing joints is a common finding most likely related to normal wear and tear. During his September 2021 Board testimony, the Veteran testified that he lied during his enlistment examination about injuring his knee in an automobile accident to avoid going to Vietnam. He indicated that he injured both of his knees when he landed on the ground during a parachute jump during training, and that for a year after the incident he walked around a lot while serving in Vietnam. His right knee began to hurt 20 years ago, and his left knee started to hurt 10 years ago. For the following reasons, entitlement to service connection for left knee degenerative arthritis is warranted. In May 2018, a VA examiner noted the Veteran's diagnosis of left knee degenerative arthritis. Thus, the Veteran meets the current disability requirement. The Veteran's September 1965 enlistment report of medical examination noted normal knees on clinical evaluation. The Veteran is therefore presumed to have been sound as to his left knee upon entry into active service. 38 U.S.C. § 1111 (a veteran is presumed to have been sound as to her feet upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment). The term "noted," in 38 U.S.C. § 1111, refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). Thus, the May 2018 VA opinion is inadequate as it indicated that the Veteran suffered from a left knee disability that preexisted service. As noted previously, the Veteran is presumed to have been sound as to his left knee upon his entry into active duty service. The Veteran's admission during his September 2021 Board hearing that he lied to avoid going to Vietnam is credible. However, this admission does not make the Veteran's lay statements regarding his continuous left knee pain symptoms, the parachute jump incident in service, and the circumstances of his service in Vietnam not credible. When considering the places, types, and circumstances of the Veteran's service, his reports of a parachute jump incident service, as well as the circumstances of his service in Vietnam, are credible. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). Furthermore, given that there is nothing to explicitly contradict the Veteran's reports of continuous left knee pain symptoms, the Board finds them competent and credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). Moreover, as discussed previously, the fact that the Veteran engaged in combat with the enemy not only assists him in establishing the in-service disease or injury element, but may also assist him in establishing the incurrence of the disability itself. Reeves, 682 F.3d at 998. At this point, the Board could remand the claim for a VA examination or opinion. However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's left knee degenerative arthritis is related to his active duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left knee degenerative arthritis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.