Citation Nr: 1751515 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 10-27 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Yuskaitis, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1977 to October 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran testified before a Veterans Law Judge by videoconference in March 2011. A transcript of the hearing is of record. In a February 2015 Board letter, the Veteran was notified that the Veterans Law Judge who conducted the hearing was no longer employed at the Board. Pursuant to 38 U.S.C. § 7101(c) (2012), the Veteran was offered an opportunity to testify at a hearing before a Veterans Law Judge who could participate in making a final determination on his claim. The Veteran responded in April 2015 that he did not wish to appear at another Board hearing. Therefore, the Board finds that VA has fulfilled its duty in providing the Veteran an opportunity for another hearing. This case was before the Board most recently in March 2017 when the Board remanded this matter for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims. A March 2016 Court Order vacated a March 2012 Board decision denying service connection for a left knee disability. Specifically, the parties to the Joint Motion found that the March 2014 VA examiner failed to render an opinion regarding direct service connection. The Board erred by failing to address direct service connection after the Board made the favorable finding that the presumption of soundness was not rebutted in this case and therefore the Veteran was presumed to have been free of any defect (including a left knee disability) at the time of entry into service. 38 C.F.R. § 3.304(b) (2017). Consistent with the Joint Motion for Remand, in July 2016 the Board determined that a new VA addendum opinion was necessary to determine the nature and etiology of his left knee disability on a direct basis. Pursuant to the Board's July 2016 remand, an August 2016 VA medical opinion was obtained regarding the etiology of the Veteran's left knee disability. The examiner opined that it was less likely than not that the Veteran's left knee disability was incurred in or caused by the claimed in-service injury, event or illness. However, the March 2017 Board remand previously found this medical opinion inadequate as the examiner relied on a lack of a medical diagnosis for a left knee disability for twenty-five years from separation from service and did not address the Veteran's competent reports that he continued to have knee problems and pain since his in-service injury. Pursuant to the March 2017 Board remand, a May 2017 VA medical opinion was obtained from the same VA examiner that rendered the March 2014 VA examination and August 2016 addendum medical opinion. The Board finds the May 2017 VA medical opinion inadequate. The May 2017 examiner continued to rely on the absence of "objective evidence" documenting left knee pain/disability to conclude that there was no indication that his left knee disability was chronic and recurrent in nature. Indeed, the VA examiner stated a medical opinion is "dependent on objective evidence" and "this examiner cannot form a medical opinion based mainly on subjective reports." See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (stating that "[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence"); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (stating that the absence of corroboration is not generally a basis for discounting lay testimony). The examiner failed to engage with the Veteran's contentions concerning the originations of his disabilities. A full discussion of the Veteran's lay evidence and beliefs concerning his disability is part and parcel of an adequate examination, as lay evidence can be dispositive regardless of the lack of contemporaneous medical evidence. In fact, the examiner's conclusion that the Veteran's post-serivce employment was much more likely the cause of chronic knee pain completely ignored the Veteran's contentions that he had left knee pain since service. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Buchanan v. Nicholson, 451 F.3rd, 1331, 1336 (holding that lay evidence can be dispositive regardless of the lack of contemporaneous medical evidence). Accordingly, as the Veteran has not yet been provided a VA examination that adequately addresses the issue presented, to include fully explained rationale, the Board finds that additional remand is necessary in order to afford the Veteran an adequate examination. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007); Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a new VA examination by an examiner who has not previously examined him to determine the nature and etiology of a left knee disability. The examiner is requested to review the claims folder, to include this REMAND. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. Following review of the entire claims file, the examiner must provide an opinion on the following: (a) Clearly identify all diagnosed left knee disabilities. (b) For each diagnosed left knee disability, is it as least as likely as not (50 percent probability or greater) that the Veteran's left knee disability (i) had its onset during service or (ii) within the initial year after separation, or (iii) is otherwise related to his active service? *The Board emphasizes that the Board has previously made a favorable finding that the presumption of soundness was not rebutted in this case; therefore, the Veteran is presumed to have been free of any defect (including a left knee disability) at the time of entry into service. *In providing this opinion, the examiner must consider the Veteran's statements regarding onset and symptomatology. If the examiner rejects the lay reports, he or she must so state and explain why. An absence of contemporaneous medical treatment, standing alone, cannot be the basis for rejecting the lay reports. *The examiner's attention is drawn to the Veteran's service treatment records noting complaints and treatment for left knee pain from November 1977 to May 1978; the Veteran's October 1980 claim that he had a left knee disability that was the result of an in-service injury in 1978; VA medical treatment records from September 2005 noting slight hypertrophy of the patella (approximately 3 years prior to the claim for service connection) and noting previous left knee examinations; and the Veteran's testimony that his left knee pain developed in service. *This opinion must be accompanied by a clear rationale. If the examiner finds that one etiology is more likely over another, such opinion should provide a clear rationale for that finding. 2. Review the examination report(s) to ensure that it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Then, readjudicate the claims remaining on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case (SSOC) and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2014). _________________________________________________ LESLEY A. REIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).