Citation Nr: 21025236 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 19-13 319 DATE: April 27, 2021 ORDER Entitlement to service connection for residuals of a right knee injury to include total knee replacement is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s right knee disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for residuals of a right knee injury to include total knee replacement are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1959 to October 1963, to include a year of foreign service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in April 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in February 2021. A transcript of the hearing is of record. 1. Entitlement to service connection for residuals of a right knee injury to include total knee replacement The Veteran asserts that he is entitled to service connection for a right knee disability due to an injury he sustained during his military service. Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran appeared for a hearing before the Board in February 2021. During the hearing, the Veteran testified that he injured his right knee in service during a football game in 1962. He reported that he received treatment for his knee after the injury. The Veteran stated that after a couple months of experiencing pain in his knee, he had his knee put into a cast for 6 weeks. However, he reported that the pain continued to worsen until he decided to have a knee replacement. Private treatment records document that the Veteran received a right knee replacement in August 2011. Private treatment records from July 2011 reveal that the Veteran reported initially injuring his right knee in 1962. He reported that since 1962, he has had multiple issues with right knee pain. Review of the Veteran’s service treatment records (STRs) shows documentation of an in-service left knee injury. More specifically, his STRs document that he injured his left knee while playing sports. The Veteran was monitored for multiple days before being placed on light duty. During the Veteran’s February 2021 hearing, the Veteran attributed the discrepancy in the records to the claim that he was simultaneously receiving sutures in his left eye due to injuring his eye from passing out shortly after his knee injury. He stated that the doctors made a mistake and wrote down the wrong knee in their records. Unfortunately, the Board does not find this argument credible. In this regard, review of the Veteran’s STRs show multiple notes spanning across different days of the Veteran receiving treatment for his left knee. A January 2, 1962 record reflects that the Veteran suffered a trauma to his left knee resulting in a possible sprain or tear of the medial collateral ligament and meniscus. This record made multiple references to the Veteran’s left knee being injured. A January 4, 1962 record noted that the Veteran fainted while his left knee was being x-rayed and struck his head; this record also noted that the Veteran had a normal x-ray with normal range of motion in his left knee. Nursing notes from the Veteran’s hospitalization, such as one from January 5, 1962, reflect that the Veteran was admitted to the hospital for trauma to the left knee; these also reflect that the Veteran’s right eye had been sutured. A January 16, 1962 medical summary reflects the treatment that the Veteran received for a left knee injury, and it noted that he would be placed on light duty for two weeks. Subsequent records offer no further information as to which knee was injured. The Veteran’s October 1963 report of medical examination at separation, for instance, contained no information about his in-service injury. When the Veteran joined the Marine Corps reserves in the mid-1970s, a July 1974 report of medical history from the Veteran reflects his history of “water on the knee” in 1961, but there was no reference to which knee. A May 1975 report of medical examination did not reflect any knee disability. A May 1975 report of medical history from the Veteran specifically answered “don’t know” to the questions of whether the Veteran had a trick or locked knee, but the Veteran reported that he was in good health with no present complaints. In summary, the Veteran contends that he injured his right knee in service, and that the treatment he received at the time simply made a transcription error in stating that it was his left knee that was injured. If only one such record was present, perhaps this contention would be plausible. In weighing the evidence, however, the Board finds it probative that numerous in-service records over multiple days referenced the Veteran’s injury to his left knee. If there had been a mere transcription error, one would think that such would be corrected over the course of the Veteran’s more than two weeks of treatment. Given that these records consistently refer to the Veteran’s left knee injury, and that the first evidence to the contrary is the Veteran’s recollections made to his private physician beginning in 2011 (almost 50 years after the injury occurred), the Board finds the Veteran’s contentions inconsistent with the evidence of record and therefore not credible. Accordingly, the Board finds that there is no evidence beyond the Veteran’s statements to establish that an in-service event or injury has occurred to warrant service connection for the Veteran’s right knee disability. Thus, the second element for service connection is not satisfied and entitlement to service connection is not warranted. In making this decision, the Board acknowledges that the Veteran has not been afforded a VA examination to determine the nature and etiology of his right knee disability. However, the Board finds that the Veteran’s claim fails to satisfy the requirements of McLendon (namely, the evidence of an in-service incurrence and evidence connecting his current disability to service), and thus will not remand for the purpose of obtaining an examination. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). In making the above determinations, the Board has exhaustively reviewed the Veteran’s complete claims file, including his service treatment records and service personnel records. In doing so, the Board can make no other conclusion but to find that the weight of the evidence is against the Veteran’s claim for service connection. The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for a right knee disability. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. K. Hall, 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.