Citation Nr: 20039910 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 180830-718 DATE: June 11, 2020 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1976 to June 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for veterans dissatisfied with VA’s decision on their claim to seek review. The Board is honoring the Veteran’s choice to participate in the modernized system. In April 2018, the Veteran opted to participate in VA’s test program, the Rapid Appeals Modernization Program (RAMP). When the Veteran decided to participate in RAMP, he selected the Higher-Level Review Lane. This means that when the RO issued its July 2018 Higher-Level Review rating decision, the RO considered only the evidence in the record when he elected to participate in RAMP in April 2018. Subsequently, the Veteran filed a timely appeal of the RAMP decision to the Board and requested the appeal be considered on the “direct docket.” As such, the Board may only consider the evidence of record when the Veteran elected to participate in RAMP. This matter was last before the Board in February 2019. At that time, the Board denied the Veteran’s claim for a right knee disability. Thereafter, the Veteran timely appealed the Board’s decision to the Court of Appeals for Veterans Claims (CAVC). While on appeal before CAVC, the parties entered into a Joint Motion for Remand (JMR) in January 2020. Pursuant to the terms of the JMR, the parties agreed that the Board erred in its February 2019 decision when it provide an adequate statement of reasons of bases for deciding the Veteran’s in-service parachute jumps did not amount to an in-service event or injury for purposes of establishing service connection. CAVC ordered that the February 2020 Board decision be vacated and remanded consistent with the terms of the JMR. The appeal is now before the Board once more. Entitlement to service connection for a right knee disability is remanded. The Board has carefully considered the terms of the JMR and finds that additional remand is warranted before it can reach the merits of the Veteran’s claim, as there is insufficient medical evidence in the record. The Veteran has alleged that his right knee disability is linked to the over 40 parachute jumps he participated in during service. This is consistent with the circumstances of the Veteran’s service. For instance, the RO found that his Form DD-214 reflected that he received a Ranger Tab and a Parachute Badge. Likewise, his military personnel records contain a November 1976 parachute jump record that confirms that he completed parachute jumps during his service. Nonetheless, the Board is prohibited from substituting its own opinion for medical judgments. See Colvin v. Derwinksi, 1 Vet. App. 171 (1991). To that end, the Veteran underwent a VA examination in September 2014 to evaluate the nature and etiology of his right knee disability. Once VA undertakes the effort to afford a claimant with an examination, VA must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The September 2014 VA examiner ultimately opined that the current right knee disability was less likely as not related to service, as the Veteran had no documented injuries to his right knee during service. Indeed, it appears that the VA examiner impermissibly based his negative nexus opinion solely on a lack of contemporaneous service treatment records without discussing the Veteran’s contentions regarding the cumulative impact of doing several parachute jumps. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board is of the belief that the Veteran conducted multiple jumps as he reports. While it is true that his service treatment records do not show treatment for a right knee injury, an opinion is still required to discuss the cumulative effect of the jumps on his knee as well as the relationship between his current right knee disability and such. Accordingly, this matter is REMANDED for the following action: Obtain a new VA medical opinion from an appropriate VA examiner to address the nature and etiology of the Veteran’s right knee disability. The Veteran’s claims file and a copy of this remand should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file in its entirety. The examiner is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current right knee disability is etiologically related in any way to his active service, to include his multiple parachute jumps in service. If the examiner determines that another examination is needed to provide the required opinion, the Veteran must be afforded an appropriate VA examination. Any indicated evaluations, studies, and test deemed necessary by the examiner should be performed. A complete rationale is required for any opinion rendered by the examiner. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. In doing so, the examiner should accept as true that the Veteran conducted multiple parachute jumps in service and otherwise consider his statements regarding the nature and onset of his right knee disability. The examiner is reminded that a lack of contemporaneous medical records alone is not a sufficient reason for VA to deny nexus between a claimed injury and a current diagnosis. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). (Continued on the next page)   If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. More specifically, the examiner must explain whether the inability to provide a more definitive opinion is due to a need for additional information, the examiner’s lack of personal knowledge or training, or the limits of current medical knowledge. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.