Citation Nr: 21041169 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 13-08 052 DATE: July 8, 2021 ORDER Entitlement to service connection for a right knee disability is denied. FINDING OF FACT The preponderance of the evidence does not show that the Veteran's right knee disability manifested during active service, within one year of separation, or is otherwise etiologically related to any in-service injury or event. CONCLUSION OF LAW The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1987 to November 1990, and from January to March 1991. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter for further development in July 2017 and May 2020. As the actions specified in the most recent remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As an initial matter, the Board notes that the Veteran has stated that he is unable to work due to his right knee disability. See January 2011 Statement in Support of Claim. If the Veteran believes his service-connected disabilities render him unable to obtain or maintain substantially gainful employment, he is encouraged to file VA Form 21-8940. In light of the claim herein not yet being service-connected, a TDIU is not deemed raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or 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."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Generally, to establish service connection a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a right knee disability is denied. The Veteran seeks service connection for right knee status post total knee replacement, status post meniscectomy, which he contends is the result of a 1988 in-service injury to his left knee. Turning to the relevant evidence of record, service treatment records reflect the Veteran's July 1988 complaints of pain behind his left knee. According to treatment notes, while playing softball the Veteran's left foot got caught on the base and he twisted his left leg. A March 2011 VA physician note reflects that the Veteran injured his right knee in July 1988 in-service and that it was never the same when he left Germany. During an April 2011 VA social work visit, the Veteran reported that he injured his right knee in service. In a January 2011 statement the Veteran reported hurting his knee in-service in 1988 and that his knee was never the same as when he was young. As time has passed the Veteran's knee has gotten increasingly worse until he finally underwent knee surgery in November 2006. Things continued to worsen, and the Veteran had a second surgery in 2008, which did not help him. The Veteran reported that he can barely walk and that as he is unable to work, his qualify of life due is very poor. The Veteran was afforded VA examinations in January 2015 and October 2017. During the January 2015 examination, the Veteran reported that his right knee went bad due to his 1988 in-service left knee injury. Overall, the examiner concluded that the Veteran's right knee degenerative joint disease is at least as likely as not related to the Veteran's left knee condition due to overcompensation and weightbearing. In support of his conclusion, the examiner stated that the Veteran's left knee deteriorated and there was no other specific alternative mechanism offered for the Veteran's right knee. During the October 2017 VA examination, the Veteran reported the onset of right knee symptoms in October 1989 when he jumped off a 5-ton truck and sustain a twisting injury to his knee. The Veteran reported 2 meniscectomies and that his condition had worsened. The examiner stated there is no evidence in the Veteran's STRs of a right knee condition or treatment for a right knee condition while on active duty. The examiner also noted no history of a right knee condition on the Veteran's entrance or exit physicals. Overall, the examiner concluded that the Veteran's current right knee disability is less likely than not incurred in and or caused by active service. In its May 2020 remand, the Board directed the RO to obtain an addendum opinion to the October 2017 VA examination, to specifically address the January 2011 private nexus opinion by D.R.H., ARNP. The Board also found the October 2017 examination inadequate because in finding a negative nexus for the Veteran's right knee disability, the examiner relied on the lack of evidence of in-service treatment for a right knee disability. The Board directed the examiner to review the entire claims folder, including the Veteran's lay statements, and to specifically address the January 2011 private nexus opinion by D.R.H. The RO obtained a new VA opinion in September 2020. The examiner opined that the Veteran's current right knee disability was less likely than not incurred in our caused by the Veteran's active service, to include the 1988 in-service injury. In support of his conclusion, the examiner noted that he found no evidence of chronic or recurrent right knee problems beginning in service to correlate to the right knee meniscus tear necessitating meniscectomy and a total knee replacement. The examiner acknowledged the 1988 injury but noted that no permanent residual or chronic disability subject to service connection is shown by the Veteran's STRs or demonstrated by the evidence from the period immediately following separation from service. Specifically, the examiner noted that the Veteran was in the service for 2 more years after the 1988 injury, and then a few months in 1991, without any evidence showing that the 1988 injury caused the Veteran's claimed chronic right knee disability. The examiner addressed the private opinion by D.R.H. and noted that it was purely speculative as D.R.H. relied only on testimony and did not cite to any supportive evidence in finding a positive nexus for the Veteran's right knee disability. Based on the foregoing, the Board finds that the preponderance of the evidence weighs against finding that service connection for a right knee disability is warranted. In making this finding, the Board finds the September 2020 VA opinion to be the most probative, competent medical opinion of record regarding the etiology of the Veteran's right knee disability. The Board is cognizant that the Veteran's private provider D.R.H., ARNP, opined that the Veteran's chronic right knee pain is "on a greater than 50% basis," related to the Veteran's 1988 in-service injury. However, the Board has found this opinion to be of limited probative value as the opinion is conclusory and not supported by a medical rationale. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993). In comparison, the September 2020 VA examiner provided a fully articulated conclusion adequately supported by medical rationale, consideration of the Veteran's lay statements, and citation to the Veteran's claims file and medical history. For these reasons, the Board finds the opinion to be the most persuasive evidence of record, which ultimately weighs against a finding that the Veteran's disability was incurred in, or otherwise related to, an in-service injury. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008) (holding that it is in the purview of the Board to decide, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion, are important factors for assessing the probative value of a medical opinion). The Board also finds it significant that the Veteran has not identified or authorized for release any private treatment records, including from D.R.H., ARNP, or the Yakima Valley Farm Workers Clinic, that could help to substantiate his claim for service connection. The Board emphasizes that if the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Given the Veteran's failure to cooperate with VA's repeated efforts to obtain these outstanding medical records, the Board has had to consider the merits of his claim without the potentially valuable information that could have otherwise been provided by his private treatment records. Finally, the Board recognizes that the Veteran sincerely believes that his right knee disability was incurred in or caused by military service. The Veteran is competent to report on matters observed or within his personal knowledge and is therefore competent to make statements regarding his symptoms and medical history. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, a probative medical opinion on the etiology or underlying causes of his right knee disability requires the specialized training of a medical professional. In this case, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render a persuasive or competent medical opinion on whether his right knee disability was incurred in or caused by his military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). Therefore, any opinion by the Veteran regarding the etiology of his disability is not competent evidence. The Board finds the September 2020 VA medical opinion of record, provided by a qualified medical professional, to be more probative regarding causation and is against a finding of ongoing symptoms since service. In summary, the Board finds that the preponderance of the evidence weighs against finding in favor of service connection for the Veteran's right knee disability. Because the evidence fails to establish that the Veteran's current disability manifested during service, within one year of separation, or is otherwise etiologically related to any in-service event, the Veteran's claim does not satisfy the criteria for service connection. As such, the benefit-of-the-doubt rule does not apply, and the Veteran's claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.