Citation Nr: 21026111 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-54 687 DATE: April 29, 2021 ORDER Service connection for a right knee disability is denied. REMANDED Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The Veteran does not have a current right knee disability. CONCLUSION OF LAW The criteria for an award of service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1988 to April 1994. His decorations include the Southwest Asia Service Medal and the Saudi Kuwait Liberation Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The RO, in pertinent part, denied service connection for a bilateral knee disability and granted service connection and a 10 percent rating for PTSD, effective July 27, 2010. In September 2016, while the Veteran’s appeal was pending, the RO granted service connection for a left knee disability. The RO also increased the rating for PTSD to 30 percent, effective July 27, 2010, and to 50 percent, effective January 20, 2015. In November 2019, the Board granted a 50 percent rating for PTSD for the entire period on appeal prior to January 20, 2015 and denied a rating in excess of 50 percent throughout the appeal period. The claim for service connection for a right knee disability was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial of service connection for a right knee disability and returned that issue to the Board. See September 2020 supplemental statement of the case (SSOC). Meanwhile, the Veteran appealed the Board’s November 2019 decision with respect to the evaluation of his PTSD to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through his attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision insofar as it denied a rating in excess of 50 percent for PTSD and remanding that matter for readjudication.   Service connection for a right knee disability As noted, this issue was previously before the Board in November 2019, when it was remanded to the AOJ for additional development. In its remand, the Board directed the AOJ to obtain updated VA treatment records and to afford the Veteran a VA examination in connection with his claim. The AOJ obtained updated VA treatment records in September 2020 and afforded the Veteran a VA examination that same month. The Board finds that the AOJ substantially complied with the November 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that he has a right knee disability that was incurred in or caused by service. Specifically, in a November 2016 VA Form 9, he indicated that he would like to be considered for service connection for degenerative joint disease of the right knee. In an October 2019 Informal Hearing Presentation, the Veteran’s representative advanced argument to the effect that the Veteran’s work as a mechanic during service caused his right knee disability, inasmuch as it required repeated use of the knees in standing or bending either over or under a vehicle for repairs. The Veteran also stated during a September 2020 VA examination that he had been experiencing a right knee disability ever since leaving the military, and noted that he was part of an Airborne Division wherein he would repel 150 feet from helicopters and perform road marches of 12 miles with a 65-pound rucksack. 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). If a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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 (1990). The question before the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order for service connection to be established, there first needs to be competent evidence of a current disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The term “disability” as used for VA purposes generally contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In the present case, the Board finds that the Veteran is not shown to have had a current right knee disability at any time during the pendency or proximate to the filing of his claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303(a), (d). The available treatment records contain no descriptions of functional impairment related to the right knee during the pendency of the claim. Nor has the Veteran described any current impairment in earning capacity related thereto. In addition, his service treatment records (STRs) are negative for any chronic/ongoing problems with the right knee. The sole mention of the right knee in the STRs was in December 1992. The Veteran was seen for low back pain at that time and reported that he occasionally felt numbness in his right knee/thigh. No treatment was sought or obtained relative to the right knee, however, and no diagnoses were rendered as to the right knee. The Veteran was afforded a VA examination in January 2015. The focus of the examination appears to have been his left knee. However, some findings were made as to the right knee as well. Specifically, it was noted that the Veteran had full range of motion in the right knee, with no objective evidence of painful motion; no loss of range of motion on repetitive use testing; and no functional loss/functional impairment. The only positive finding was that he had tenderness or pain to palpation. Strength was normal with both flexion and extension, there was no instability of the knee, and there were no meniscal conditions. The Veteran was afforded another VA examination in connection with his claim in September 2020. The examiner noted the Veteran’s contention that he had been experiencing a right knee disability since leaving the military and that he repelled from helicopters and performed road marches of 12 miles with a 65-pound rucksack. The Veteran did not report flare-ups, did not report functional loss or functional impairment, and denied that he had ever received treatment for the knee since leaving the military. Range of motion testing was normal, and no pain was noted on examination. The Veteran’s strength was normal, he had no atrophy, ankylosis, or instability, he did not use an assistive device, and the examiner indicated that the condition did not impact his ability to work. The examiner offered a negative nexus opinion, reasoning that even though the Veteran subjectively stated that he began having right knee pain immediately following service related to his in-service duties as a mechanic, which required repeated use of the knees in standing and bending, there was no chronic diagnosis for a right knee condition. She further reasoned that the objective examination was normal, that the Veteran’s symptoms were subjective only, and that there was no etiology to render a current and chronic right knee disability diagnosis. Review of other medical records also fails to show that the Veteran has a current diagnosis related to his right knee. While VA treatment records from February 2012 and November 2017 show that he reported pain in his knees, examinations were normal, and the only diagnosis given was in February 2012, which was a history of intermittent right knee pain. Importantly, while the VA treatment records show that the Veteran has right knee pain, none of them indicate that his right knee pain is accompanied by functional impairment resulting in loss of earning capacity. See Saunders, supra. While the Veteran may believe that he suffers from a right knee disability that is related to service, the evidence does not support a finding that he has functional impairment of the right knee resulting in loss of earning capacity. The September 2020 examiner’s opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no medical opinions to the contrary. The preponderance of the evidence is against the claim. The benefit of the doubt rule is not for application, and the appeal of this issue must be denied. 38 U.S.C. § 5107 (b); Gilbert, supra. REASONS FOR REMAND Entitlement to an initial rating in excess of 50 percent for PTSD is remanded. In the JMPR filed with the Court, the parties agreed that the Board erred when it failed to ensure that VA fulfilled its duty to assist the Veteran in obtaining outstanding psychiatric treatment records. Specifically, in his August 2012 notice of disagreement, the Veteran stated that he was seeing a doctor and a counselor for his PTSD. At a January 2015 VA examination, the examiner noted that the Veteran saw a counselor for six months and was diagnosed with PTSD in 2001. In light of those references, the parties to the JMPR agreed that the Board was required to take action to ensure that VA satisfied its duty to assist by requesting authorization and information from the Veteran as to where he received treatment, pursuant to 38 C.F.R. § 3.159(e)(2), and by making efforts to obtain any outstanding relevant records related to treatment as identified in the existing record or otherwise identified by the Veteran. By the terms of the JMPR, a remand is required. Updated records of any VA treatment should also be procured. 38 C.F.R. § 3.159; see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). This matter is REMANDED for the following action: 1. Ask the Veteran to provide releases for relevant records of treatment from any civilian doctors, counselors, or other mental health care providers he saw in 2001 and 2012, and to identify, and provide appropriate releases for, any other civilian providers who may have treated him for PTSD. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs (to include obtaining an updated PTSD examination, if warranted), the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a SSOC.  An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.