Citation Nr: A21020474 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 190422-18226 DATE: December 23, 2021 ORDER Service connection for a right knee disability is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether Veteran's right knee disability began during her active duty military service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for a right knee disability have been met. 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 in the United States Navy from October 1988 to September 1995. Her decorations include the Southwest Asia Service Medal. The original rating decision underlying the present appeal was issued in August 2015 by the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina. The Veteran filed a legacy Notice of Disagreement (NOD) (VA Form 21-0958) in August 2016. In June 2018, she elected review in the modernized review system. 38 C.F.R. § 19.2(d). The Veteran selected the Supplemental Claim lane when she opted into the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. Following a denial of her Supplemental Claim in February 2019, she timely appealed to the Board of Veterans' Appeals (Board) in April 2019, selecting the hearing review option. In February 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Under the AMA hearing review option, additional evidence may be submitted at the hearing and up to 90 days thereafter. 38 C.F.R. § 20.302. Here, the record reflects that the Veteran submitted additional evidence at the time of her hearing in February 2021. Evidence was also submitted within 90 days after the hearing. In the February 2019 rating decision on appeal, the AOJ determined that new and relevant evidence had been received to warrant readjudication of the Veteran's claims on the merits. The Board is bound by that favorable finding. 38 C.F.R. § 3.104(c). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110,1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service injury or disease. See e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time she files her claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of a disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The term "disability" as used for VA purposes generally contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). If a veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseasesincluding arthritisto a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms which supports a subsequent diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (finding that case law deeming lay evidence categorically incompetent "has been overturned by this court's precedent"). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a right knee disability The Veteran seeks to establish service connection for a right knee disability. She maintains that she has a disability of that knee that can be attributed to an incident during her active duty service in which she tripped and injured the knee. The record reflects that the Veteran was treated for a right knee injury in 1995 after she tripped over a cord that was tied to a nearby chair during a ship tie-down procedure. Accordingly, an in-service injury has been established. Additionally, the record shows that she has a currently diagnosed right knee disability, including as evidenced at a February 2019 VA examination. The only question remaining for the Board's consideration is whether her current right knee disability is causally related to the injury during service. As noted, the Veteran's service treatment records confirm that she suffered a right knee injury in April 1995 after falling over a chair that had been tied down for sea travel. The records show that she hit her knee on the deck. The treating clinician noted that she had blunt trauma to her right knee and was walking with a noticeable limp. The clinician documented that there was no obvious deformity, but indicated that there was mild edema and point tenderness to her patella, with pain, some crepitus, and a decreased range of motion. The clinician concluded that the Veteran suffered a soft tissue contusion of her right knee and instructed her to return if her symptoms did not improve. The clinician stated that she did not have a history of knee pain. In a July 1995 dental health questionnaire, the Veteran reported a history of painful joints. In a November 2013 VA primary care nurse practitioner note, the treating clinician indicated that the Veteran had osteoarthritis of her right knee and noted that she injured the knee while in the military, with no further injury thereafter. She reported that she experienced a flare of severe aching and sharp pain in her right knee the year before, but had not had a recent flare. She stated that she took over-the-counter pain medication if "it gets bad." In a June 2015 VA primary care nurse practitioner note, the treating clinician documented that the Veteran had osteoarthritis of both knees, with the right being worse than the left. In her August 2016 NOD, the Veteran claimed that she continually experienced problems with her right knee since she injured it during her service. She stated that she believed her left knee condition was related to overuse due to compensation for her right knee. In a February 2019 examination report, the examiner indicated that the Veteran had a diagnosis of bilateral patellofemoral pain syndrome, with a date of diagnosis of 2019. She reported that she first began to experience problems with her knees near the end of her military service in 1995, after tripping over a cord tied to a nearby chair during a ship tie-down procedure. She noted that she immediately began to experience pain in her right knee and began to develop similar pain in her left knee in subsequent months after the incident. She attributed further deterioration of her knees due to ongoing participation in physical training that she was required to complete for the remainder of her military service. She claimed that her symptoms worsened over time, and that the pain was initially intermittent, but became much more persistent over the years. She further noted that she experienced periodic episodes of more severe pain, which were usually unpredictable. The examiner opined that the Veteran's right knee disability was less likely than not incurred in or caused by her claimed in-service injury, event, or illness. The examiner stated that although her service treatment records indicated that she was treated for a knee injury in 1995, an x-ray showed no evidence of a fracture and she was diagnosed with a soft tissue contusion. The examiner noted that she did not report any ongoing knee conditions in her August 1995 separation examination, and the evidence did not show complaints of knee problems until June 2015. The examiner indicated that there was an insufficient factual basis by which to establish a nexus between her right knee disability and her current disability. In a February 2021 statement, submitted the day of her Board hearing, from an individual who served with the Veteran and witnessed her injury in 1995, the individual claimed that the Veteran was horribly embarrassed about the incident, and limped and expressed pain for days after the incident. At her February 2021 Board hearing, the Veteran testified that she was not given any bed rest after her right knee injury and went right back to work because she was told nothing was broken. She noted that she had continuing pain after the initial injury and told the treating clinician that she had an issue, but indicated that she did not pursue treatment any further because her supervisor was very strict about females going to sick call. She claimed that she was also embarrassed, so she did not complain, despite continuing pain. She reported that she did not have constant pain while in the military, and just "shook it off" because she was young and "knew [she] would bounce back." She stated that after her separation, she experienced occasions where her knee gave out on her, so she began to rely on her left knee more. She noted that she saw a private doctor for her knee problems, but that doctor went into bankruptcy and she was unable to obtain her records. In a March 2021 medical opinion, received by VA in April 2021, the Veteran's private physician opined that her bilateral knee disabilities were related to her active duty service. The physician noted that x-rays of her knees showed decreased medial joint space in the lateral patella, and that she reported a fall on a ship while in the Navy. The physician stated that her current diagnosis would be enthesopathy of the bilateral knees, with arthritis and chondromalacia. The physician indicated that the condition was causally related to her fall in 1995, based on reading her claims file, listening to her story, and conducting an examination and x-rays, along with the "ongoing symptom complex provided by the [Veteran] and the amount of degenerative change [in her knees]" Based on the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record is at least in equipoise as to whether her right knee disability is related to her active duty service. Although the February 2019 examiner opined that her right knee disability was not a result of her 1995 knee injury, as there was insufficient evidence of continuity of symptoms after her separation, she testified at her February 2021 hearing that she continued to experience right knee symptoms after the end of her military service, and that she sought treatment for the condition but was unable to obtain records of that treatment due to the bankruptcy of the clinician who conducted the treatment. Additionally, her post-service treatment records indicated that she complained of right knee problems as early as 2012, and her private physician opined that, based on all the evidence of record, it was more likely than not that her right knee disability was due to her 1995 injury. The appeal of this issue is granted. REASONS FOR REMAND Entitlement to service connection for a left knee disability is remanded. The Veteran also seeks to establish service connection for a left knee disability. She maintains, in essence, that she developed a left knee disability as a result of compensating for her right knee disability. The record reflects that the Veteran was afforded a VA examination of her left knee in February 2019. However, the examiner did not address the Veteran's claim on a secondary basis. In addition, it is unclear whether the March 2021 private physician concluded that the Veteran's left knee disability was due to her 1995 injury or secondary to her right knee injury. While the physician indicated that the Veteran's bilateral knee disabilities were linked to her 1995 injury, the Veteran has not heretofore alleged that she injured her left knee during service. Nor do her service records reflect that the left knee was injured at that time. Instead, she has claimed that she had a gradual onset of left knee symptoms due to compensation for her right knee symptoms. Post-service treatment records reflect that she was first diagnosed with osteoarthritis of the right knee in November 2013 and that she was not diagnosed with osteoarthritis of her left knee until June 2015, with the osteoarthritis of her right knee being more severe than that of her left knee at that time. Under the circumstances, the Board finds that further development is necessary. For the reasons stated, the March 2021 private opinion lacks the clarity necessary to support an award of service connection for the left knee. In addition, the February 2019 VA examiner did not offer an opinion as to secondary service connection. In light of those facts, and because the record at the time of the AOJ's decision contained at least some evidence to support the proposition that the right knee disability might be related to service, the AOJ should have sought further opinion evidence as to secondary service connection before adjudicating the left knee claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). The failure to do so constitutes a pre-decisional duty to assist error that must be corrected. This matter is REMANDED for the following action: Make arrangements to provide the record on appeal to an appropriately qualified clinician for purposes of obtaining a medical opinion as to the nature and etiology of any left knee disability that the Veteran may have had during the period on appeal. After reviewing the record, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any current left knee disability had its onset in, or is otherwise attributable to, the Veteran's period of active service, to include a result of the tripping injury she sustained during service in 1995. In doing so, the clinician should discuss the findings in the STRs as well as the February 2019 and April 2021 medical opinions currently of record. If the clinician finds that it is unlikely that the Veteran has a left knee disability that is directly related to her military service, the clinician should provide a further opinion as to whether it is at least as likely as not that a left knee disability (1) was caused or (2) has been aggravated (i.e., permanently or temporarily worsened beyond natural progression) by her now service-connected right knee disability. In doing so, the clinician should specifically discuss the Veteran's statements regarding her history of compensating with her left knee due to her right knee symptoms (altered gait mechanics). The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries observable by a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The clinician is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the clinician is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting symptomatology. The clinician must provide a rationale for all opinions expressed. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. Specifically, the clinician must indicate whether there was a further need for information or testing, or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Ferguson, 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.