Citation Nr: 21041386 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-34 942 DATE: July 9, 2021 ORDER Service connection for a left knee disability is denied. VETERAN'S CONTENTIONS The Veteran contends that he has a current left knee disability that was incurred during service when he fell off of or down a cliff that was 30-40 feet high. FINDING OF FACT The Veteran's left knee disability was not incurred in service, to include as a result of a fall therein. CONCLUSION OF LAW The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1978 to July 1981, with subsequent Reserve service. This matter is before the Board following his appeal of a September 2015 rating decision. The Veteran testified before the undersigned Veterans Law Judge in November 2020. The Board then remanded this matter in January 2021. As a final introductory matter, the Board is cognizant that additional evidence was associated with the claims file following issuance of a March 2021 supplemental statement of the case. Nevertheless, that evidence is cumulative and/or duplicative of evidence already of record, or otherwise not relevant to the issue on appeal. Service Connection for a Left Knee Disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 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, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Here, the record establishes a current left knee disability, as VA treatment notes document complaints of left knee pain from around December 2012, and imaging of the left knee in May 2016 showed mild degenerative changes. However, because the record fails to establish in-service incurrence of a left knee disability, the claim must fail. In this regard, the Veteran's service treatment records (STRs) are silent for left knee injury, complaints, treatment, or diagnoses. While they do document that the Veteran fell from a 30-foot cliff, the STRs do not support that the Veteran sustained a left knee injury during that fall. Indeed, when seeking treatment in service after the fall in March 1979, the Veteran reported left heel pain and made no mention of his left knee. Elsewhere, the STRs show that the Veteran sought treatment for left foot and left ankle pain after a fall while playing basketball in June 1978 but, again, there was no report related to the left knee. Importantly, during July 1981 and June 1983 service examinations for purposes of separation, no left knee abnormalities were found or reported, and the Veteran affirmatively denied a history of "[t]rick" or locked knee. The Board acknowledges that the Veteran is competent to report on things he has experienced, such as sustaining a left knee injury during a fall in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(2). The Board also recognizes that 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, 1336-37 (Fed. Cir. 2006). However, in addition to noting that the Veteran has documented memory issues, the Board finds that his initial reports in seeking VA treatment for his left knee post service undermine his subsequent reports of injuring his left knee in service or during the fall, rendering the current reports unreliable. Specifically, when initially reporting occasional left knee pains during VA treatment in December 2012, the Veteran reported that there was no history of injury or accident related to his left knee. However, during the same visit, the Veteran did report that he had chronic low back pain and left heel pain that began with falling down a cliff in 1979 in service. It seems likely that had the Veteran injured his left knee during the same fall in service, he would have reported that in December 2012 while seeking treatment for current left knee pain and simultaneously reporting back pain and left heel pain from the same incident. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Furthermore, the Veteran did not seek treatment for his left knee until December 2012, at which time he reported a 10-20-year history of left knee pain, which places the onset around 1992 at the earliest; he did not report a 30-year history of left knee pain or left knee pain since service, weighing against his current reports that he sustained a left knee injury in service. Instead, the Veteran's initial report placed the onset of left knee pain over 10 years following his separation from service and, given that that report was made in furtherance of treatment and prior to any claim for benefits, it is deemed probative. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006) (the Board may consider a lack of contemporaneous medical evidence, interest or bias, whether the statements were made in furtherance of treatment, and the lapse of time in recollecting events attested to as factors in determining the credibility of lay evidence). See also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding that a negative inference may be drawn from the absence of complaints or treatment for an extended period). Thus, given the foregoing, the Board unfortunately concludes that the Veteran's lay reports of a left knee injury during service are not credible. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). And, as noted above, the Veteran's STRs are silent for evidence of in-service incurrence of a left knee injury. As such, there is no competent and credible evidence of in-service incurrence of a left knee disability, and the requirements for establishing service connection for a left knee disability are not met. Accordingly, the appeal is denied. S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.