Citation Nr: 22010686 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 19-07 835 DATE: February 24, 2022 ORDER Entitlement to service connection for right knee strain with shin splints (right knee disability) is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's right knee disability had its onset during service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1995 to March 2001, and September 2004 to May 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for right knee disability. In October 2017, the Veteran filed his notice of disagreement, was issued a statement of the case in January 2019, and in February 2019 perfected his appeal to the Board. On January 28, 2022 the Veteran appeared at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has not yet been associated with the claims file, but one is not necessary for a decision on the claim, as the benefit sought is being granted in full. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Right Knee Disability The Veteran's service treatment records do not reflect treatment for, or complaints of right knee disability, or symptomatology associated with a right knee disability, and his January 2001 medical examination report and report of medical history reflect a left leg disability. February 2009 private treatment records indicate that the Veteran complained of right knee pain, and the physician diagnosed right knee medial meniscus tear. The records indicate that the Veteran's initial injury occurred in October 2008 while he was getting up from the floor. A July 2016 disability benefits questionnaire (DBQ) indicates that the Veteran's right knee range of motion was normal, and that there was no pain noted upon examination of the right knee. An October 2016 DBQ reflects a diagnosis of right knee strain with shin splints, with the Veteran reporting onset of symptoms in the left knee in 1999, and then right knee pain about a year later. He reported that the pain has stayed the same in his left knee, but has worsened in his right knee. The examiner opined that the Veteran's right knee disability was less likely than not (less than a 50 percent probability) proximately due to, or the result of his service connected left knee disability. The examiner stated that the Veteran's discharge examination did not show any issues with his right knee, and that the Veteran had an injury to his knee in 2008. The examiner thus opined that the right knee disability is related to the fairly recent knee injury and not the left knee disability. In a February 2018 statement, the Veteran reported that the October 2016 DBQ was based solely on the earlier July 2016 examination which was an examination of the left knee only. Therefore, the Veteran asserts that the opinion is invalid as it was based on incorrect information. September 2018 VA treatment notes indicate that the Veteran had right knee pain which was greater than his left knee pain, and that he reported right knee orthoscopic surgery from cracked cartilage in 2008. The evidence is at least evenly balanced as to whether the Veteran's right disability had its onset during service. The October 2016 DBQ reflects a diagnosis of right knee strain, and the Veteran competently stated that he first suffered from right knee pain around the year 2000. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). There is no indication in the evidence of record that the Veteran lacks credibility, thus his reports of right knee pain during service is afforded significant probative weight. Therefore, the first 2 criteria for establishing service connection have been satisfied and the dispositive issue is whether there is a nexus between the two. While the October 2016 examiner provided a negative nexus opinion as to the etiology of the Veteran's right knee disability, he addressed primarily whether the right knee disability was related to his left knee disability, and also indicated that the right knee disability was not related to service based upon a lack of evidence of right knee issues upon discharge which is an impermissible basis upon which to find that the disability is not related to service. Additionally, the examiner did not consider the Veteran's competent, credible lay statements regarding continuous right knee pain in service which has since worsened. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Therefore, the October 2016 examiner's opinion is inadequate and afforded no probative weight. Thus, there is competent and credible evidence of right knee pain since service, and an inadequate negative medical nexus opinion regarding the etiology of the right knee disability. Although the Board could remand the claim for another medical opinion, there is sufficient evidence to decide the claim, and a remand could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). The above reflects that the evidence is at least evenly balanced as to whether the Veteran's right knee disability began in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right knee disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.