Citation Nr: 21012398 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-62 384 DATE: March 4, 2021 ORDER Entitlement to service connection for a right knee disorder is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, a right knee disorder is etiologically related to an injury in service. CONCLUSION OF LAW The criteria to establish service connection for a right knee disorder have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to July 1967. The case is on appeal of an August 2016 rating decision issued by the Regional office (RO) of the Department of Veterans’ Affairs (VA). In a November 2019 decision, the Board of Veterans’ Appeals (Board) denied service connection for bilateral hearing loss and a right knee disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 order, the Court issued a partial joint motion for remand (JMR) remanding the entitlement to service connection for a right knee disorder. 1. Entitlement to service connection for a right knee disorder Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). If a chronic disease, is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309 (a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any disease initially 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). The Veteran asserts that he is entitled to service connection for a right knee disorder because the disorder originated during his active duty service. The evidence reflects that the Veteran was treated for a right knee injury during service during October 1966, as reflected in his service treatment records. Accordingly, the first element necessary to establish service connection has been demonstrated. Concerning the second element to establish service connection, the Board observes that while the Veteran’s service treatment records are devoid of a diagnosis of a knee injury, the service treatment records reflect symptoms since service including treatment and pain even though it was no official diagnosis until 2016 in the medical evidence of record. Moreover, the Veteran’s provides consistent and credible statements of pain and other symptoms related to his knee disorder since service. Based on this evidence, the Board concludes that the second element has been demonstrated. The Board acknowledges the 2017 VA examination where the examiner noted a right knee disorder diagnosis but determined that the condition was not related to active duty service. This opinion is found less probative as it does not adequately discusses the Veteran’s lay statements relating the Veteran’s knee injury to his current disorder other than nothing the amount of time that has passed, which is conclusory and not based on medical rationale. Therefore, the Board finds that the Veteran’s right knee disorder likely existed during service. Additionally, a lack of a medical nexus is not fatal to the Veteran’s claim because service connection may be established for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service, to include evidence showing continuity of symptoms during and after service. 38 C.F.R. § 3.303 (d). Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for a right knee disorder is warranted. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, Associate Counsel