Citation Nr: 21009610 Decision Date: 02/23/21 Archive Date: 02/22/21 DOCKET NO. 17-42 004 DATE: February 23, 2021 ORDER Entitlement to service connection for bilateral knee degenerative joint disease (DJD) is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s bilateral knee DJD is related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for a bilateral knee DJD has been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from September 1974 to April 1975. This matter initially came before the Board of Veterans Appeals (Board) on appeal from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied reopening of claims for service connection for degenerative joint disease in the left and right knees. In April 2019, the Board reopened the claims for service connection for DJD of the bilateral knees and denied the claims on the merits. In March 2020, the Court granted a Joint Motion for Partial Remand (JMPR), the Veteran’s representative and VA’s general counsel, vacating the Board’s denial of service connection and remanding the claims to the Board. In August 2020, the Board remanded the claims. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 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). Entitlement to service connection for bilateral knee DJD. A December 2020 VA examination report treatment notes contain diagnoses of bilateral degenerative arthritis. Thus, a current disability has been demonstrated. In September 1974, the Veteran service treatment records (STRs), indicate that the Veteran reported right knee pain and tenderness. Subsequent STRs from April 1975, also show the Veteran’s complaints about his left knee. Therefore, the in-service injury element is satisfied. Thus, the remaining question is whether the Veteran’s bilateral knee disability is related to his time in service.   In support of his claim, in his August 2017 VA Form 9 Appeal, the Veteran stated that he injured his knee during basic training, and it has bothered him ever since. He also submitted a buddy statement from R.M., a friend and fellow Veteran, who went through basic training with him, and recalled that the Veteran complained of knee pain during service. VA treatment reports from 2007 through 2009, show that, not only did the Veteran report a knee injury during service, he consistently reported intermittent bilateral knee pain in his post-service years. Treatment notes also show the Veteran continued to complain of bilateral knee pain from 2014 through 2017. The Veteran’s statements, that he has experienced bilateral knee pain since beginning service, are competent and credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay witnesses are competent to testify as to their observations).  Evidence against the claim includes a December 2020 VA examination report, in which the VA examiner determined it was less likely than not the Veteran’s current disability was related to his time in service. The examiner noted that the Veteran’s bilateral knee DJD was “acute only.” He further stated that there was no evidence of chronicity of care, with regard to the Veteran’s knees. She concluded there was insufficient documentation during service to render a nexus opinion. The VA examiner’s December 2020 opinion is of limited probative value because she did not acknowledge or comment on the fact that the Veteran was treated for multiple complaints of bilateral knee pain during service. She also did not acknowledge the Veteran’s extensive medical history of complaints and treatment for knee pain, post-service. Therefore, as the examiner’s opinion is partially based on an inaccurate characterization of the record, it is of little, if any, probative value. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). Further, the VA examiner did not consider the Veteran’s numerous lay statements in the record as to his knee injuries during service and his continuous symptoms of knee pain since leaving service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”).   As noted above, the Veteran’s lay statements regarding his knee pain are competent and credible. Buchanan, 451 F.3d at 1336 (“If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran’s ability to prove his claim of entitlement to disability benefits based on that competent lay evidence”).   Moreover, the parties to the JMPR agreed that, in rendering its April 2019 decision, the Board did not consider whether service connection was warranted pursuant to 38 C.F.R. § 3.303(b), based on the Veteran’s statements of continuity of symptomatology. The Board has considered the Veteran’s statements and determined that along with the other evidence of record they are sufficient to grant the claims. Id. at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). There is an inadequate nexus opinion weighing against the claim and competent, credible lay evidence in support. While the Board could remand the claim for an adequate medical opinion, a request for another 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”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The evidence is, thus, at least evenly balanced as to whether the current bilateral knee DJD is related to service. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, service connection is warranted for bilateral knee DJD. 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 J.K. Donaldson, 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.