Citation Nr: 21011094 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-47 784 DATE: February 26, 2021 ORDER Service connection for a right knee disability is denied. FINDING OF FACT The Veteran’s current right knee disability is right knee strain which is a known clinical diagnosis and which was not manifest in service and is unrelated to service. CONCLUSION OF LAW The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2002 to June 2006 and from November 2007 to November 2010. The matter is on appeal from an August 2016 rating decision, although the March 2016 rating decision is reconsidered as part of this appeal as detailed in the November 2017 Board remand. The 2017 remand requested further development. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Veteran’s service discharge certificate from his 1st period of service in the Marine Corps shows no foreign or sea service, but an award of the Iraq Campaign Medal. His service discharge certificate from his 2nd period of service, also in the Marine Corps, shows no foreign service and slightly more than 1 year of sea service, and an award of the Iraq Campaign Medal. Furthermore, a November 2005 service treatment record shows that the Veteran reported serving in Iraq, and the Veteran indicated in his June 2006 VA Form 21-526 that he had served in a combat zone after September 11, 2001. Accordingly, the Board will treat the Veteran as having served in Southwest Asia during the Gulf War. For Veterans who served in the Southwest Asia Theater of operations during the Gulf War, service connection may be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Gulf War Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 / 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). The Board notes that the Veteran’s complete service treatment records may not be available. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current right knee disability, which a May 2019 VA examination report indicates is right knee strain, a known clinical diagnosis. The preponderance of the evidence indicates that this was not manifest in service and is unrelated to service. Service treatment records show only one instance of a right knee complaint, in November 2005. At the time, the Veteran was being seen for a chief complaint of left knee pain which he reported began after he had served in Iraq 3 months prior. He incidentally stated that he had had pain to his right knee since that morning, but believed that he had bumped his right knee during a wrestling match that morning, and was not as concerned about it. On physical evaluation, his right knee was unremarkable. Only a left knee diagnosis was rendered. In August 2008, the Veteran complained of left knee pain, but not of right knee pain, and his right knee was normal at that time. Service treatment records show treatment for a left knee problem but not for any right knee problems in November 2009. The Veteran filed a claim for service connection for left knee disability without filing one for right knee disability in June 2011. Right knee complaints appear to have been first reported in October 2015 and the Veteran first claimed right knee disability in November 2015. The Board remanded in November 2017 to clarify whether the Veteran had a current right knee disability, and then on VA examination in May 2019, he was diagnosed with right knee strain. There was also a suggestion of right knee strain on VA examination in February 2016. However, in December 2020, a VA examiner probatively opined that the Veteran's current right knee strain was less likely than not incurred in or caused by service. The rationale correctly noted that the Veteran's service treatment records showed only a one time complaint of right knee pain, and that he was found to have a normal right knee examination at that time. Also, there was no additional medical treatment for his right knee noted through his release from active duty in 2010, and he had a normal right knee examination and no right knee complaints at the time of a July 2011 VA examination. Furthermore, the VA examiner in December 2020 noted that post-service medical records do not reference right knee problems until more than 5 years post-service. Additionally, the VA examiner indicated that a review of the Veteran's claims folder showed no objective evidence supporting the premise that the Veteran’s current right knee condition (strain) was incurred in or caused by his right knee pain in November 2005. Last, right knee strain is a known clinical diagnosis; therefore, service connection is not warranted under 38 C.F.R. § 3.317 for an undiagnosed illness. The name itself indicates that it is caused by strain, and there is nothing in the record to suggest, nor does the Veteran contend, that it is a medically unexplained chronic multisymptom illness, and so service connection cannot be granted for right knee strain pursuant to 38 C.F.R. § 3.317 on the basis of any service by the Veteran in the Southwest Asia theater of operations during the Gulf War. While the Veteran may feel that his current right knee strain is related to service, as a layperson, he is not competent to opine on this complex medical matter. Medical training is required. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson 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.