Citation Nr: 21007697 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 13-34 301 DATE: February 10, 2021 ORDER Service connection for a right knee disability is granted. REMANDED Entitlement to service connection for a left knee disability, including as secondary to a right knee disability, is remanded. FINDING OF FACT The Veteran’s right knee disability had its onset during service. CONCLUSION OF LAW The criteria for service connection for right knee disability are met. 38 U.S.C. §§ 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1955 to August 1959. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). The transcript of the hearing has been associated with the record. The Board remanded this case for further development in May 2018. In a November 2019 decision, the Board denied service connection for the bilateral knee disability. In the November 2019 decision, the Board noted that in October 2019, VA had advised the Veteran that the VLJ before whom he testified is no longer with the Board and offered him a hearing before a new VLJ. In October 2019, the Veteran responded that he did not wish to appear at another Board hearing and requested that his claim be considered on the evidence of record. When this matter was previously before the Board in November 2019, the Board denied service connection for right knee and left knee disabilities. The Veteran appealed the Board’s November 2019 decision to the United States Court of Appeals for Veterans Claims (Court), which in an August 2020 order, granted the parties’ joint motion for remand (JMR), vacating the Board’s November 2019 decision and remanding the case for compliance with the terms of the joint motion. Service Connection 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. § 1131; 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 and other witnesses are competent to report symptoms and experiences they can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 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). 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. 1. Right knee disability. The Veteran contends that his right knee disability results from an injury that occurred in 1956 while attending airborne radio operators’ school; he was hospitalized for two weeks and has suffered problems with his right knee since. See March 2018 Hearing Testimony; March 2010 Application. The Veteran’s service treatment records are unavailable. See August 2012 VA Memo. The Veteran’s friend and his brother submitted testimony that the Veteran returned from service with a limp due to his right knee disability, and the Veteran’s brother noted the Veteran included complaints of his right knee since his injury in the letters he wrote to their mother. See November 2012 Buddy Statements. The Veteran’s wife, who he married in 1963, and another friend reported that the Veteran has suffered from a right knee problem since they have known him, and he told them the problem was due to his in-service injury. See November 2012 Buddy Statement; May 2010 Statement in Support of Claim. The Veteran was provided a VA examination for his knees in March 2019. The examiner provided a negative nexus opinion by concluding that the right knee disability was less likely than not caused by an in-service event or injury because the Veteran worked in a physically demanding job for 40 years post-service, and he had an injury in the 1970s. March 2019 C&P Exam. The Veteran provided a December 2012 letter from a private doctor, who found it as likely as not that the Veteran’s knee condition was caused by military service. November 2012 VA Memo. The private doctor did not provide a rationale for his opinion. The competent and credible evidence of record shows that the Veteran’s current right knee disability began during service and has been recurrent since that time. The Veteran reported that he had a right knee injury during service and that he has had problems with his right knee since. See March 2018 Hearing Testimony. Four witnesses have corroborated the Veteran’s statements. See November 2012 Buddy Statements; May 2010 Statement in Support of Claim. The Veteran is competent to report the onset and continuation of his right knee problems, and his witnesses are competent to observe the Veteran limping; the Board finds their testimony credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the March 2019 VA examiner opined that the Veteran’s current right knee disability was not related to service; however, the evidence shows that the Veteran’s right knee disability had its onset in service. Service connection for a right knee disability is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). REASONS FOR REMAND 1. Left knee disability, including as secondary to a right knee disability. In the August 2020 JMR, the parties determined the Board relied on an inadequate March 2019 VA examination report. The parties agreed that the Veteran’s claim of service connection for a left knee disability was inextricably intertwined with the claim of service connection for a right knee disability because he asserts that it was caused or aggravated by his right knee disability. This claim should be remanded for a new VA examination as the March 2019 VA examination is inadequate. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the March 2019 Disability and Benefits Questionnaire states that the Veteran’s left knee disability is not caused or aggravated by the service-connected right knee, the opinion failed to consider the Veteran’s testimony when formulating the opinion. See id. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he either submit or provide VA sufficient information and authorization to obtain clarification from B.E.N., D.C., regarding the December 2012 private examination. 2. Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Whether an in-person physical examination is necessary should be left to the discretion of the examiner. The examiner should provide an opinion as to whether it is at least as likely as not that a left knee disability is proximately due to or aggravated by the right knee disability, including years of overcompensation due to the 1956 right knee injury. (Continued on the next page)   If the examiner cannot give an opinion without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). STEVEN D. REISS 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.