Citation Nr: 21030587 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-35 248 DATE: May 19, 2021 ORDER Entitlement to service connection for sore knees, status post torn tendon is denied. REMANDED Entitlement to service connection for respiratory condition, to include obstructive sleep apnea (OSA), is remanded. Entitlement to service connection for fibromyalgia is remanded. FINDING OF FACT The preponderance of the evidence is against finding that sore knees, status post torn tendon, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for sore knees, status post torn tendon, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from June 1993 to June 1997. This case comes before the Board of Veterans' Appeals (Board) on an appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office. In November 2018, the Board remanded the claim for additional development. Service Connection Entitlement to service connection for sore knees, status post torn tendon. The Veteran seeks service connection for sore knees, status post torn tendon. He claims he injured his left knee in service, and it has caused his current knee problems, to include requiring surgery on his left knee. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by service. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran service treatment records show that in May 1995, the Veteran reported he fell and was treated for a twisted right knee. The record shows that following the fall, he was unable to fully extend his right knee and had localized tenderness, lacked 15 percent of full extension, but did not have instability. On his separation examination in June 1997, there is no mention of knee complaints or diagnoses. In July 2009, the Veteran had an MRI done of his left knee at a private facility following knee pain and dislocation while doing martial arts. It was determined that he had soft tissue swelling over the anterolateral aspect of the knee and there was evidence of a popliteal cyst decompressed into the posterior tissues. There also appeared to be a posterior capsular disruption suggesting a hyperextension injury. Later the same month, the Veteran had a private orthopedic consult. He told the doctor he injured his left knee on July 13, 2009 during karate practice when he went back with his left leg and all of a sudden felt a pop and thought he dislocated his knee. The Veteran did indicate he had a previous problem with or injury to this area but did not specify when. In March 2010, the Veteran had a private orthopedic evaluation for his left and right knees. He told the doctor that he injured his left knee while training martial arts in August 2009 and that his right knee was sore from compensating. He said that since his injury, he often felt as though his left patellar would give out. The doctor reviewed the Veteran's x-rays and MRI, and determined they showed degenerative changes of the patella, otherwise normal, and transient patellar dislocation. During a September 2010 physical therapy initial evaluation following surgery on his left knee to realign his knee cap, the Veteran reported he had problems with his left kneecap for the last few years, and that he dislocated it the previous summer during a martial arts competition. In September 2012, an outpatient interdisciplinary note details the Veteran's complaints of left knee pain from an injury two weeks prior. He stated that he was doing martial arts and developed pain and swelling of the left knee. He had been seen at the emergency room, and had his knee drained of a significant amount of fluid. He told the doctor that he was a police officer and a martial artist and frequently got knee injuries. He also told the doctor that he had originally injured his left knee in the military when he twisted it. Again, in January 2013, the Veteran reported to a private orthopedic and spine center for an injury to his left knee. He told the doctor his injury was due to a martial arts training, and that during a kick, he dislocated his knee again. Pursuant to the November 2018 Board remand, the Veteran underwent a VA examination in December 2019 for his sore knees, status post torn tendon. The examination report noted a diagnosis of left knee lateral release. The Veteran indicated the onset of his left knee injury was during service when he slipped and fell. He said he suffered intermittent pain in his left knee but denied any pain in his right knee. The Veteran told the doctor he had no current right knee complaints. He denied having any pain in the right knee. The Veteran had normal range of motion for both knees, did have some pain after repetitive use over time on the left side, but the doctor determined he had no further loss of range of motion anticipated during these scenarios. The examiner documented the Veteran's left knee ligament release in 2012, and determined that since his left knee problems were mechanical that it was less likely than not due to a specific exposure event experienced by the Veteran in Southwest Asia, and that it was less likely than not that his left knee condition was incurred in or caused by the right knee injury in service. She continued by saying that his service treatment records were silent for left knee pain in service, and therefore she was unable to show it was related to service. Unfortunately, the history the appellant has presented as to his left knee injury in service is only consistent with the records showing an in-service right knee injury, yet he has persistently claimed that his injury was to his left knee. The Board finds that the service treatment records are explicit and clear in that the appellant injured his right knee, with numerous references to his right knee. Thus, the Board finds the service treatment records more probative than his statements that his injuries are to his left knee. See Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). The Board finds that the Veterans current left knee condition is not related to his in-service knee injury, and consequently service connection is not warranted. In reaching this decision the Board finds the December 2019 VA examiner's opinion highly probative. In this regard, the examiner considered the Veteran's right knee injury during service, his history of left knee injuries due to his martial arts practice, and his statement that he has no right knee complaints. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board finds that service connection for sore knees, status post torn tendon is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection. As such, the doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for respiratory condition, to include obstructive sleep apnea. 2. Entitlement to service connection for fibromyalgia. The Veteran appeals his denial of service connection for respiratory condition, to include OSA, and for fibromyalgia. He claims his disabilities are a result of his service in the Gulf War. The November 2018 Board remand requested verification of the Veteran's contentions that during his service, the ships he was assigned to were deployed to the Persian Gulf theater of military operation. However, no records concerning the ships U.S.S. DWIGHT D. EISENHOWER (CVN-69) and the U.S.S. THEODORE ROOSEVELT (CVN-71) were associated with the record. There is no indication an attempt was made to verify his service. Unfortunately, in order to properly adjudicate this claim, these records are needed, and another remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Attempt to verify the Veteran's contention that during his service on the U.S.S. DWIGHT D. EISENHOWER (CVN-69) and the U.S.S. THEODORE ROOSEVELT (CVN-71), the ships were deployed to the Persian Gulf theater of military operations, to include contacting the appropriate agencies and requesting ship records and deck logs. If multiple requests are needed to cover the entire period, submit multiple requests. 2. If qualifying service in the Southwest Asia theater of operations is verified, obtain an addendum opinion addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a respiratory disability, to include obstructive sleep apnea, that is etiologically related to service, to include his service in the Southwest Asia theater of operations. All opinions must be supported by a detailed rationale. K. MARENNA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Doerfler, 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.