Citation Nr: 21015899 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 19-00 435 DATE: March 18, 2021 ORDER Service connection for right knee osteoarthritis is granted. FINDING OF FACT 1. The Veteran sustained right knee injuries in service, and competently and credibly reports continuity of symptomatology since that time. 2. The Veteran is currently diagnosed with osteoarthritis of the right knee. CONCLUSION OF LAW The criteria for service connection for right knee osteoarthritis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was a member of the Army National Guard who had a period of active duty for training (ACDUTRA) May 1960 to October 1960. This matter is before the Board of Veterans’ Appeals on appeal from an October 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The matter has been previously remanded two times for further evidentiary development, most recently in October 2020. Both remands were based upon inadequate rationales for the proffered negative nexus opinions. The examiners based their opinions on the lack of documented evidence of in-service injury. Although they noted the Veteran’s competent and credible lay reports of injury on ACDUTRA and symptoms since that time, they discounted such without explanation. Rather than remand the matter for a third time, given the demonstrated inability to comply with the specific remand directives, the Board finds that service connection for a right knee disability, diagnosed as osteoarthritis is warranted. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis is a listed chronic condition. As the VA contract examinations and opinions are inadequate, the sole opinion of record is that of a treating physician’s assistant, on behalf of his orthopedist. Mr. MS noted the history of in-service injuries and continuity of complaints. He noted the current diagnosis of osteoarthritis, based on x-rays. He opined that as he had not treated the Veteran since service, he could not state “definitively” that the in-service injuries caused the current disability, but it was not “unreasonable” to conclude that a nexus was at least as likely as not. Though not the strongest of opinions, it is positive and offers a rationale which considers the entirety of the evidentiary record. Moreover, as that evidence also establishes a diagnosis of a chronic disease and continuity of symptomatology since service, service connection is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Megan-Brady Viccellio 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.