Citation Nr: 20036483 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 1903073-3267 DATE: May 28, 2020 ORDER Whether vacatur of the Board of Veterans’ Appeals October 24, 2019 decision, which denied service connection for left knee disability, is granted. REMANDED Entitlement to service connection for left knee disability is remanded. FINDING OF FACT The part of the October 24, 2019 Board decision with respect to the issue of entitlement to service connection for left knee disability, which erroneously declared the Veteran’s service treatment records do not contain complaints or treatment of a left knee condition, constitutes denial of due process for the Veteran. CONCLUSION OF LAW Vacatur of the October 24, 2019 Board decision that denied service connection for left knee disability is warranted. 38 U.S.C. §§ 7103 (c), 7104(a); 38 C.F.R. § 20.904. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1981 to May 1982. Vacatur The Board of Veterans’ Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. Here, in its October 24, 2019 decision, the Board denied service connection for a left knee disability. In that decision, the Board found that the evidence of record did not support the Veteran’s left knee condition was related to his active duty service, to include any evidence of an in-service occurrence. In doing so, the Board erroneously declared the Veteran’s service treatment records did not show any complaints or treatment for a left knee condition, when in fact, his service treatment records do show a complaint for bilateral knee pain. Accordingly, the October 24, 2019 Board decision which denied service connection for left knee disability is hereby VACATED. REASONS FOR REMAND Although the Board regrets further delay, additional development is required prior to adjudication of the Veteran’s claim. Entitlement to Service Connection: Left Knee Disability The Veteran contends that his left knee disability is related to his active duty service. The issue of entitlement to service connection for left knee disability is remanded to correct a duty to assist error that occurred prior to the February 2019 rating decision on appeal. The Agency of Original Jurisdiction (AOJ) obtained a medical opinion in January 2019 prior to the rating decision on appeal. The examiner opined that the Veteran’s left knee condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that there were no service treatment records showing a knee condition or injury. The examiner further rationalized there was no evidence of chronic care for injury to the left knee. The examiner stated the Veteran’s separation examination reported no joint issues or chronic knee problems. The examiner lastly stated that x-rays in March 2018 showed minimal degenerative patellar spurring, which would not be minimal if the degenerative process had progressed over 30 years following an in-service injury. The Board finds the January 2019 VA opinion does not provide an adequate rationale to adjudicate the Veteran’s claim. Specifically, the examiner based the opinion largely on her finding that there was no evidence of in-service treatment or injury. However, the Board notes that the Veteran’s service treatment records show the Veteran complained of bilateral knee pain diagnosed as chondromalacia and a notation of possible muscle tear in July 1981. Therefore, the Board finds that a remand is required in order to obtain a new opinion that considers the Veteran’s in-service knee complaints. The matters are REMANDED for the following action: Send the claims file to the examiner who provided the January 2019 VA opinion to determine the etiology of the Veteran’s left knee disability. If the January 2019 examiner is not available, then the claims file should be sent to an appropriate examiner for the requested opinion. A copy of this remand should be made available to the examiner. If the examiner determines the requested opinion cannot be provided without an examination, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s left knee disability had its onset during, or is otherwise related to, his active duty service, to include his July 1981 complaint of bilateral knee pain diagnosed as chondromalacia and notation of possible muscle tear. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A complete rationale for all opinions expressed should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he/she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, Associate 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.