Citation Nr: 21007627 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 13-02 558 DATE: February 10, 2021 ORDER Service connection for left knee patellar tendonitis is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether left knee patellar tendonitis had its onset in or is otherwise related to the Veteran’s period of service. CONCLUSION OF LAW The criteria for service connection for left knee patellar tendonitis 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 June 2005 to June 2010. This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter for further development in August 2015. In March 2017, December 2017, April 2019, and again in September 2020, it was determined the examiner did not sufficiently comply with the remand orders, and this issue was again remanded. The record demonstrates that the criteria for service connection for left knee patellar tendonitis are met. The Veteran contends his bilateral knee disability symptoms wax and wane, but the disability is the result of an injury in August 2008 during convoy training, which was further aggravated by jumping out of a Humvee in service. See 01/23/2013, Buddy/Lay Statement; 08/25/2010, STR–Medical. Bilateral patellar tendonitis was diagnosed in September 2008. 08/25/2010, STR–Medical. Notably, the Veteran’s right knee patellar tendonitis is service-connected. 08/11/2017, Rating Decision–Narrative. Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Lay evidence, when credible, is competent to establish the presence of continuity of symptomology for a claimed disability during and since separation from active service and may provide sufficient support for a claim of service connection. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). The absence of treatment shown within service treatment records is an insufficient rationale for a negative nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A VA examiner’s failure to consider the veteran’s testimony when formulating his or her opinion renders that opinion inadequate. Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. The record contains a competent diagnosis of left knee patellar tendonitis during the period on appeal; accordingly, competent evidence of a current disability is found. 12/31/2015, CAPRI. A September 2011 VA examiner determined the Veteran had no left knee disability. 09/08/2011, VA Examination. An April 2012 VA treatment note demonstrates the Veteran’s bilateral knee patella reflexes were less than normal. 08/06/2015, CAPRI. A November 2015 VA physician assistant assessed bilateral patellar tendonitis noting the left knee was worse than the right knee. 12/31/2015, CAPRI. In response to the Board’s March 2017 remand directive requesting a VA examination to determine whether the Veteran’s current patellar tendonitis is due to or had its onset in service, a March 2017 VA examination was provided. The March 2017 VA examiner diagnosed right knee patellar tendonitis but did not find a left knee disability; thus, she gave a negative opinion as to the etiology of the left knee disability, albeit providing a positive nexus for the right knee disability. 03/30/2017, C&P Exam. As the Veteran did have a left knee disability diagnosed during the period on appeal, the Board remanded the case again in December 2017 for an opinion as to the etiology of the diagnosed left knee disability or for an explanation as to why the November 2015 diagnosis is not indicative of a current diagnosis for VA purposes. In February 2018, a VA examiner found any left knee patellar tendonitis during the appeal period was not incurred in or caused by military service because no disability was found in the December 2011 and March 2017 VA examinations. 02/07/2018, C&P Exam. The Board remanded this issue again in April 2019 for an opinion as to whether the left knee patellar tendonitis diagnosed in November 2015 is causally related to the Veteran’s service, and whether the right knee disability aggravated the left knee disability. The February 2018 VA examiner provided an addendum opinion in December 2019 that the bilateral knee disability developed after the September 2011 examination because no knee disability was found at the September 2011 examination. The examiner also found no aggravation of the left knee disability because it did not pre-exist service, and there is no evidence the right knee disability caused or aggravated any left knee disability. 12/17/2019, C&P Exam. Again, in September 2020, the Board remanded this issue because the examiner did not answer the specific question of whether the patellar tendonitis noted in November 2015 was directly related to complaints in service. In October 2020, the February 2018 VA examiner provided the rationale that given the lack of details surrounding any left knee patellar tendonitis after September 2008, and given the latency from the time he left the military without left knee complaints until 2015 when he was found to have patellar tendonitis, it is felt less likely than not the left knee patellar tendonitis is proximately due to or a result of the left knee patellar tendonitis from September 2008. 10/19/2020, C&P Exam. The Board acknowledges the VA examiners’ opinions that it is less likely than not that the left knee disability had its onset in or is otherwise related to the Veteran’s periods of service, but assigns those opinions diminished probative weight as they fail to discuss the Veteran’s contention that the symptoms of the left knee disability wax and wane but had its onset during service and whether his in-service injury was as likely as not to result in the left knee disability. See Stefl, 21 Vet. App. at 124. Six VA examiner opinions regarding the etiology of the left knee disability with a notice of the adequacy requirements were solicited. Still, all the opinions were nevertheless inadequate as they all failed to consider the Veteran’s lay statements. See Miller, 32 Vet. App. at 257. The March 2017 VA examiner provided a positive nexus opinion regarding the etiology of the right knee patellar tendonitis, and the record and opinions of the February 2018 VA examiner indicated the etiology of the right and left knee disabilities are the same, given that both were initially injured in August 2008 and bilateral patellar tendonitis was diagnosed in September 2008 and November 2015. Inasmuch as the sole basis for the negative nexus opinions is the absence of a diagnosis at the time of the March 2017 examination, it is reasonable to assume that had the examiners considered the Veteran’s lay statements and the presence of a diagnosis during the appeal period, a positive nexus would have been provided. Again, the Veteran perfected this appeal over eight years ago. Both the Board and RO have attempted on numerous occasions to have the VA examiners consider the lay evidence of record. The Veteran’s reports of waxing and waning left knee patellar tendonitis symptoms since his August 2008 injury are consistent with the evidence of record and tend to support a nexus to his in-service injury. His account of his symptoms is both competent and credible. Any doubt on this material issue is resolved in the Veteran’s favor, and service connection for left knee patellar tendonitis is warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.