Citation Nr: 21014601 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-30 977 DATE: March 15, 2021 ORDER Service connection for left knee disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s left knee disability is attributable to military service. CONCLUSION OF LAW The criteria for service connection for left knee disability are not met. 38 U.S.C. §§ 1110, 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 United States Marine Corps from January 1957 to January 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the June 2016 VA Form 9, Substantive Appeal, the Veteran requested a Board hearing. In a June 2019 telephone call with VA personnel, the Veteran’s attorney expressed the Veteran’s intent to withdraw his request for a hearing. Notice of the phone call was added to the record. As such, the Board finds that the Veteran’s hearing request has been withdrawn. 38 C.F.R. § 20.603. The undersigned Veterans Law Judge has been assigned to consider this matter pursuant to 38 C.F.R. § 20.106. This case was previously before the Board in February 2020 and December 2020 for further development. The development requested having been completed, the case is now appropriate for appellate review. Decisions of the Board shall be based on the entire record and consideration of all evidence, lay and medical, that is material. 38 U.S.C. § 7104(a); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). In evaluating the evidence in any given appeal, it is the responsibility of the Board to make appropriate determinations of (a) competence; (b) credibility; and (c) weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Medical opinions are deemed competent since they are from medical professionals. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As to the matters adjudicated below, neither the Veteran nor his attorney has raised any issues with VA’s duty to notify or VA’s duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Service connection for left knee disability The Veteran seeks entitlement to service connection for a left knee disability, asserting that his disability is the result of jumping from trucks/tanks on rugged terrain during his active duty service. See e.g. May 10, 2013 and June 27, 2016 lay statements; August 2014 Notice of Disagreement. Generally, to receive service connection on a direct basis, a Veteran must establish: a current disability; an in-service incurrence of a disease or injury; and a causal relationship between the current disability and the disease or injury incurred during service, the so-called “nexus” requirement. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied before service connection may be achieved. Here, the Veteran has been diagnosed as having a left knee meniscal tear. See March 2020 VA examination. Thus, the first element of a current left knee disability has been met. The question before the Board is whether the Veteran’s left knee disability is causally related to active duty service. The Veteran was afforded VA examinations in May 2014, March 2020, and December 2020. In the February 2020 decision, the Board found that the May 2014 VA medical nexus opinion was inadequate for adjudicative purposes. In August 2016, the Veteran submitted a private medical nexus opinion from Dr. R.H. opining that the Veteran’s left knee issues were the result of injuries that occurred while the Veteran served on active duty. Dr. R.H.’s medical opinion is wholly conclusory and unsupported by an explanatory rationale; thus, it is inadequate to resolve the appeal. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). Accordingly, the February 2020 Board decision remanded the claim to afford the Veteran a new VA examination. Pursuant to the February 2020 Board remand, the Veteran underwent a VA examination in March 2020. The examiner issued a negative nexus opinion based on the claims file lacking documentation associating the Veteran’s left knee to any in-service event. The examiner’s opinion was based solely based on the absence of documentation in the record and is inadequate to adjudicate the claim. Dalton v. Peake, 21 Vet. App. 23 (2007). Accordingly, in the December 2020 decision, the Board remanded the claim for the RO to obtain a VA addendum medical opinion that fully complies with legal authority and considers the Veteran’s contentions on appeal. In December 2020, the RO obtained a VA addendum medical opinion. The examiner reviewed the Veteran’s claims file and noted the Veteran’s June 2016 lay statement of injuring his left knee when jumping off tanks with full gear during military service. The examiner reviewed Dr. R.H.’s August 2016 medical opinion and noted that the opinion did not give any an explanation as to how the left knee injury occurred in-service, but only that injured occurred during military service. The examiner noted an August 2019 MRI showing left knee tears of medical and lateral meniscus. The examiner opined that the Veteran’s left knee disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner supported his conclusion by stating: Based on the veteran’s lay statement of 6/27/16 noting he jumped off of a tank with 70 pounds full gear and injured his left knee as described by the veteran, does indicate that he had an injury to the left knee with a soft tissue injury based on the knee becoming swollen at that time. However, if the injury was due to a torn meniscus as described in the MRI of 2019, the symptoms of left knee pain would have persisted through his military career. There is no evidence that he was chronically evaluated for a left knee condition after he injured his left knee. Considering the examiner addressed the Veteran’s contentions, discussed the Veteran’s medical history and provided a reasoned rationale in supporting his conclusion, the Board finds the examiner’s nexus opinion significantly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that in the May 2015 VA treatment records, the Veteran reported he was exercising on weight machines and used extra weights three weeks prior that caused his left knee discomfort. The Veteran said there was no swelling and that it was gradually improving. He also said that he goes to the gym regularly. The medical provider diagnosed the Veteran as having a “left knee injury while working out,” which was gradually improving. Statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346 (1992). This evidence weighs against the claim. While the Veteran is competent to report having experienced symptoms of injuring his left knee when from jumping off trucks/tanks during military service, he is not competent to provide a diagnosis in this case or to determine that his symptoms were manifestations of a left knee meniscus tear. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the December 2020 VA examiner’s opinion. (Continued on the next page)   After reviewing the record in its entirety, the Board concludes the preponderance of the evidence weighs against finding that the Veteran’s left knee disability is attributable to military service. Accordingly, the Veteran’s claim for service connection for left knee disability is denied. Because the preponderance of the evidence is again the claim, the benefit of doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Agarwal, 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.