KNEE IMPAIRMENT OF

Summary

The veteran, who served in the Armed Forces from July 1970 to December 1970 and April 1982 to November 1985, appeals the denial of service connection for a right knee disability and the remand of claims for restless leg syndrome and a respiratory disability. The Board denied the right knee claim, finding no competent evidence of in-service incurrence or aggravation of a knee condition, and thus no duty to provide a VA examination. The Board noted the veteran's testimony regarding occasional leg cramps in service and his claim that restless leg syndrome was service-related, but found the RO erred by not obtaining a VA examination to determine the nature and etiology of the condition. For the respiratory claim, which included claims for collapsed left lung, pneumonia, lung cancer status-post pneumonectomy, and COPD, the Board found the VA medical opinions inadequate. Specifically, the September 2020 VA examination failed to provide an etiological opinion for lung cancer related to service or COPD, and the May 2021 examination did not provide an opinion on lung cancer or COPD related to jet fuel exposure or cold temperatures in Greenland. The Board remanded the restless leg syndrome and respiratory disability claims for additional development, including obtaining adequate VA medical opinions.

Rationale

No competent evidence of in-service incurrence or aggravation of right knee condition; Low threshold for VA examination not met; Veteran's testimony regarding leg cramps insufficient for nexus

Full Decision Text

Citation Nr: A26039436
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 210802-177121
DATE: April 28, 2026

ISSUES

1. Entitlement to service connection for a right knee disability.

2. Entitlement to service connection for restless leg syndrome.

3. Entitlement to service connection for a respiratory disability, to include a collapsed left lung, pneumonia, lung cancer status-post right pneumonectomy, and chronic obstructive pulmonary disease (COPD) (respiratory disability). 

ORDERS

Entitlement to service connection for a right knee disability is DENIED.

Entitlement to service connection for restless leg syndrome is REMANDED.

Entitlement to service connection for a respiratory disability is REMANDED. 

FINDING OF FACT

Review of the evidence of record does not show an in-service incurrence or aggravation of a disease or injury of the right knee.

CONCLUSION OF LAW

The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.

FACTUAL AND PROCEDURAL HISTORY

The Veteran served on active duty in the Armed Forces of the United States from July 1970 to December 1970 and April 1982 to November 1985. Historically, the Veteran filed claims with the Department of Veterans Affairs (VA). 

On August 3, 2020, and June 7, 2021, the VA Regional Office (RO) issued rating decisions pertinent to the issues on appeal.  On August 2, 2021, the Veteran noted a timely appeal of the rating decisions to the Board. 

The appeal was prosecuted pursuant to the modernized review system. 

REASONS AND BASES FOR FINDING AND CONCLUSION

I.

Duty to Assist

The Veterans Claims Assistance Act and its implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

The Board is mindful that the Veteran was not afforded a VA examination, nor a VA opinion obtained, in relation to his claim for service connection for a right knee disability. Under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. 

As explained below, however, there is no competent evidence of an event, injury, or disease occurred in service or that a certain disease manifested during an applicable presumptive period for which the claimant qualifies in regard to the right knee. As such, the Board finds that the low threshold for obtaining a medical examination and/or opinion has not been met for this claim. Id. at 81, 83.

The Veteran has not raised any other deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. 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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

II.

Service Connection Claim - Right Knee Disability

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established through the application of certain regulatory presumptions, or on a direct or
 before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

II.

Service Connection Claim - Right Knee Disability

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established through the application of certain regulatory presumptions, or on a direct or secondary basis. 

To establish direct service connection for a claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999). 

For the reasons discussed below, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under section 3.303(b) do not apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

Service treatment records do not show complaints or diagnoses regarding the right knee. Moreover, the Veteran has not indicated the nature of the disability as it relates to service. Notably, the testimony before the undersigned in March 2025 showed that it was agreed that there were no complaints or injuries regarding the right knee in service. 

The evidence does not establish the second Hickson element- evidence of in-service incurrence or aggravation of a disease or injury. 

For the Veteran to prevail, he must meet his burden of proof. After considering the record evidence, the Board is unpersuaded that the Veteran has established the elements necessary to sustain his case.  This does not mean that the Board does not believe the Veteran to be sincere or that he prosecutes his appeal in bad faith. It means very narrowly that the second Hickson element- evidence of in-service incurrence or aggravation of a disease or injury -are not met. 

This a legal determination informed by lay and medical evidence. Establishing a diagnosis of right knee disability that is etiologically related to service is a complex medical endeavor and, in the Board's view, the Veteran does not possess the medical expertise to competently make those determinations, because he lacks the requisite training, education, and experience to do so competently. Jandreau v. Nicholson, 492 F.3d at 1377 & n.4 (Fed. Cir. 2007). 

At bottom, this is a matter of competency, not credibility, and one of non-persuasion rather than persuasion. The Veteran has not shown that his second Hickson element- evidence of in-service incurrence or aggravation of a disease or injury for the claimed right knee disability-is met. 

For these reasons, the claim for service connection for a right knee disability is denied.

REASONS FOR REMAND

As discussed below, the Board finds that there is pre-decisional error in this case, and additional evidentiary development is required on remand to cure the error.

Restless Leg Syndrome

The Veteran contends, and testified before the undersigned, that service connection is warranted for restless leg syndrome as it had onset in and is etiologically related to service.

Service treatment records in October 1985 showed reports of occasional cramps in the legs at night. VA treatment records in June 2015 also showed complaints of pain that the Veteran felt were restless leg syndrome from the reports his wife gave him of what he did while sleeping.

All this evidence was part of the record at the time the RO issued the rating decision on appeal. And, on this record, the RO did not attempt to schedule a VA medical examination for the claimed disability before deciding the claim at issue.

The AMA abrogated the Secretary's duty to assist for cases on appeal to the Board. 38 U.S.C. § 5103A(e)(2).  But the duty to assist remains in full force when a claim is before the RO for adjudication. Id. § 5103A(e)(1). And if the Board identifies a duty-to-assist error that occurred prior to the issuance of the decision on appeal, it must remand the matter to the RO to cure the error. Id. § 5103A(f)(2)(A). 

As noted above and stated again for sake of clarity, in McLendon, 20 Vet. App.
 examination for the claimed disability before deciding the claim at issue.

The AMA abrogated the Secretary's duty to assist for cases on appeal to the Board. 38 U.S.C. § 5103A(e)(2).  But the duty to assist remains in full force when a claim is before the RO for adjudication. Id. § 5103A(e)(1). And if the Board identifies a duty-to-assist error that occurred prior to the issuance of the decision on appeal, it must remand the matter to the RO to cure the error. Id. § 5103A(f)(2)(A). 

As noted above and stated again for sake of clarity, in McLendon, 20 Vet. App. 79, the Court set forth the criteria considered when determining whether a VA examination is necessary to assist in establishing service connection on a direct basis. 

The Court held that a VA examination is warranted when there is: 

(1) competent evidence of a current disorder or persistent or recurrent symptoms of a disorder; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disorder, or persistent or recurrent symptoms of a disorder, may be associated with the Veteran's active military service, but that (4) insufficient competent medical evidence is on file for the VA Secretary to make a decision on the claim. 

Id. at 81.

The Court further explained that:

The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.

Id. at 83 (internal quotation marks and citation omitted). The threshold for finding a link between current disability and service is low. Id.: Locklear v. Nicholson, 20 Vet. App. 410 (2006).

So, the question for the Board is whether deciding the claim without obtaining an examination constitutes a pre-decisional duty-to-assist error, for which the Board must remand the claim to cure.  Accordingly, the locus of the inquiry is on what was before the RO at the time of the decision on appeal. 

Applying the McLendon legal framework to the facts of the instant matter, the Board finds that, at the time the RO issued the rating decision on appeal, there was evidence of complaints of pain that the Veteran felt were restless leg syndrome; evidence that the Veteran was claiming that his disability had onset in and was related to service, to include as related to his documented complaints of occasional cramps in the legs at night in October 1985; an indication that the disability on appeal may be associated with the Veteran's active military service; but there is insufficient competent medical evidence to decide the claim. 

Based only on the evidence of the record at the time the RO issued the rating decision on appeal, and under the low bar of McLendon, Board finds each of the four elements have been met and concludes that the Veteran should have been afforded a VA examination to determine the nature and etiology of the claimed restless leg syndrome prior to a decision being made on his claim. As such, a VA examination should be obtained, as outlined below, to fulfill the duty to assist. 38 C.F.R. § 20.802(a). 

Respiratory Disability

The Veteran contends, and testified before the undersigned, that service connection is warranted for a respiratory disability as it had onset in and is etiologically related to service. Specifically, the Veteran testified that his claimed respiratory disability is related to toxic exposures in service to include exposure to jet fuel. The Board also notes that the Veteran submitted a statement in December 2020, stating that his respiratory disabilities were caused by jet fuel exposure in service and cold temperatures, to include in Greenland.

Service personnel records show that the Veteran served at an airbase in Greenland. Service treatment records show that the Veteran had a spontaneous pneumothorax (lung collapse) in 1978 and was hospitalized for one and a half weeks. He underwent a thoracocentesis and had a full recovery. Service treatment records are also replete for complaints of chest pain and reports that the Veteran was a smoker. 

The Veteran was afforded a VA-contracted examination in September 2020 in which the examiner diagnosed lung cancer status-post right lung pneumonectomy, spontaneous pneumothorax, and COPD. The examiner stated that no chronic diagnosis was made for collapsed left lung; the spontaneous pneumothorax was noted to have no complications or sequelae in the records; and there was no evidence found in the reviewed records that the Veteran had current and chronic sequelae as a result of
ax (lung collapse) in 1978 and was hospitalized for one and a half weeks. He underwent a thoracocentesis and had a full recovery. Service treatment records are also replete for complaints of chest pain and reports that the Veteran was a smoker. 

The Veteran was afforded a VA-contracted examination in September 2020 in which the examiner diagnosed lung cancer status-post right lung pneumonectomy, spontaneous pneumothorax, and COPD. The examiner stated that no chronic diagnosis was made for collapsed left lung; the spontaneous pneumothorax was noted to have no complications or sequelae in the records; and there was no evidence found in the reviewed records that the Veteran had current and chronic sequelae as a result of his spontaneous pneumothorax in 1978. 

The September 2020 examiner also stated that the conditions of lung cancer and spontaneous pneumothorax were unrelated. The examiner stated that there was no evidence found of record to support that the Veteran's condition of lung cancer was caused by his spontaneous pneumothorax in 1978 which was noted to have resolved without complication or sequelae. However, the examiner did not opine as to whether it was approximately at least as likely as not that the lung cancer had onset in service and was otherwise etiologically related to service, to include as a result of exposure to jet fuel and cold temperatures in Greenland. Moreover, the examiner did not provide an etiological opinion regarding the diagnosed COPD.

The Veteran was afforded a VA-contracted examination in May 2021 in which the examiner stated in pertinent part that factors such as radon gas, asbestos, air pollution exposures, and chronic infections could contribute to lung carcinogenesis. The examiner stated that upon review of literature, there was no correlation found that link lung cancer with spontaneous pneumothorax and exposure to cold. Therefore, the Veteran's diagnosis of lung cancer was less likely than not incurred in or caused by the spontaneous pneumothorax, exposure to cold during service. 

However, the examiner did not opine as to whether it was approximately at least as likely as not that the lung cancer had onset in service and was otherwise etiologically related to service, to include as a result of exposure to jet fuel. Moreover, the examiner did not provide an etiological opinion regarding the diagnosed COPD.

This evidence was part of the record at the time the RO issued the rating decision on appeal. And, on this record, the RO did not request an addendum opinion curing the errors in the prior opinion before deciding the claim at issue. Once VA undertakes to provide an examination or obtain a medical opinion, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  This is firmly settled and as clear a principle as one can find in this area of the law, without caveat or qualification. If you are going to do something, do it right. And if you do not, keep doing it until you get it right.  Of this, too, we remind our reader and fervently hope it is enshrined forevermore.  

The AMA abrogated the Secretary's duty to assist for cases on appeal to the Board. 38 U.S.C. § 5103A(e)(2).  But the duty to assist remains in full force when a claim is before the RO for adjudication. Id. § 5103A(e)(1). And if the Board identifies a duty-to-assist error that occurred prior to the issuance of the decision on appeal, it must remand the matter to the RO to cure the error. Id. § 5103A(f)(2)(A). 

So, the question for the Board is two-fold. Threshold question. Was the medical opinion the VA obtained inadequate for adjudication? The determinative question. If so, was deciding the claim without obtaining a curative addendum opinion a pre-decisional duty-to-assist error, for which the Board must remand the claim to cure?  

Based only on the evidence of record at the time the RO issued the rating decision on appeal, the Board finds the VA medical opinions inadequate, and that a curative addendum opinion should have been obtained prior to a decision being made on the claim. Barr, 21 Vet. App. at 311. Because it was not, an addendum opinion or, in the reasonable exercise of the RO's discretion, a new medical opinion, must be obtained, as outlined below, to fulfill the duty to assist. 38 C.F.R. § 20.802(a).  This issue is remanded to the RO. 

The matter is REMANDED for the following actions:

1. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed restless leg syndrome. The Veteran's electronic claims file, including a copy of
 the VA medical opinions inadequate, and that a curative addendum opinion should have been obtained prior to a decision being made on the claim. Barr, 21 Vet. App. at 311. Because it was not, an addendum opinion or, in the reasonable exercise of the RO's discretion, a new medical opinion, must be obtained, as outlined below, to fulfill the duty to assist. 38 C.F.R. § 20.802(a).  This issue is remanded to the RO. 

The matter is REMANDED for the following actions:

1. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed restless leg syndrome. The Veteran's electronic claims file, including a copy of this Remand Decision, must be made available to the examiner for review in connection with the opinion. 

The examiner is asked to offer an opinion as to the following:

Whether it is approximately at least as likely as not that any diagnosed restless leg syndrome had onset in service and is etiologically related to service, to include as related to the aforenoted service treatment records in October 1985 that showed reports of occasional cramps in the legs at night. 

If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.

2. Obtain an addendum medical opinion from a suitable examiner regarding the etiology of the claimed respiratory disability. The Veteran's electronic claims file, including a copy of this Remand Decision, must be made available to the examiner for review in connection with the opinion. If additional examination of the Veteran is deemed by the examiner to be required to answer the questions below, such examination must be scheduled.  

For the respiratory disability, the examiner is asked to opine as to the following:

Is it approximately at least as likely as not that a respiratory disability (claimed as collapsed left lung, pneumonia, lung cancer status-post right pneumonectomy, and COPD) had onset in service and is otherwise etiologically related to service, to include as a result of exposure to jet fuel and cold temperatures in Greenland?

A complete rationale, including citation to appropriate medical principles, for all opinions reached must be provided. 

If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.

3. Following completion of the foregoing, the RO should review the record and readjudicate the claims on appeal. 

 

STEVEN V. ADLER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R.M.K., 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.