Citation Nr: 20048093 Decision Date: 07/17/20 Archive Date: 07/17/20 DOCKET NO. 11-10 836 DATE: July 17, 2020 REMANDED Entitlement to service connection for osteoarthritis of the left knee is remanded. Entitlement to service connection for osteoarthritis of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from April 1973 to March 1979. This appeal to the Board of Veteran’s Appeals (Board) arose from a June 2009 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran has perfected the appeal. See March 2010 Notice of Disagreement; March 2011 Statement of the Case (SOC); December 2013 Substantive Appeal (VA Form 9). The Veteran requested a hearing before the Board. The requested hearing was conducted in March 2016 by the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. In May 2016, June 2017, and May 2018, the Board remanded these claims for further evidentiary development. Regrettably, after a thorough review of the evidence, the Board finds that additional evidentiary development is still necessary prior to the adjudication of the claims on this current appeal. In the May 2016 Board decision, the Board remanded the claims in order to afford the Veteran a VA examination to determine the nature and etiology of his bilateral knee condition. In the June 2017 Board decision, the Board determined that the June 2016 VA opinion did not include a discussion as to whether the Veteran’s in-service hip injury, subsequent use of crutches, or stepping into a hole during physical training during service contributed to his bilateral knee condition. The Board remanded the claims in order to obtain an opinion that included a discussion of those injuries and assertions. In the May 2018 Board decision, the Board found that the Janaury 2018 addendum opinion was not fully responsive to the questions specified in the prior Board’s remand directives. The opinion was based solely on the lack of evidence showing treatment of a knee condition during service. The opinion lacked a discussion pertaining to the Veteran’s statements regarding the use of crutches, stepping into a hole during service, and experiencing continuous symptoms since service. The Board remanded the claims once again to obtain a sufficient opinion that addressed each contention regarding injury and continuous symptoms. An opinion was obtained in December 2018. Regarding whether the Veteran’s bilateral knee condition was related to stepping in a hole while in physical training during his service, in-service hip injury, use of crutches, or a cumulation of all of the injuries stated, the VA clinician stated that “too much time had passed” between his injury in-service and current knee osteoarthritis. Whether the Veteran’s bilateral knee condition was more properly attributable to intercurrent causes, the clinician repeated that too much time had passed between the Veteran’s time in service and current knee osteoarthritis to make a plausible connection. The clinician further stated that there were not any interim medical notes from the time of the Veteran’s separation from service to the current date to show that there was a continuation of the service-related injuries. The clinician did explain that osteoarthritis is a degenerative, “wear and tear” type of arthritis that occurs when the cartilage in the knee joint gradually wears away. Firstly, the VA clinician does not expressly assert an opinion either supporting or negating a nexus (i.e., state “at least as likely as not” or “less likely than not”). Based on the other language used in the opinion, the Board construes that the clinician determines that there is no nexus between the Veteran’s bilateral knee condition and his service. More importantly, like the prior medical opinions, this opinion does not thoroughly discuss the Veteran’s contentions or provide a fully articulated rationale to support any findings. The clinician merely repeated that “too much time has passed” since the Veteran’s service. This is not a sufficient rationale. The clinician does not fully articulate how the Veteran’s in-service injuries and use of crutches are not related to the Veteran’s current bilateral knee condition. Lack of medical evidence in service does not serve as an absolute bar for entitlement to service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Additionally, relying on the absence of evidence in medical records, without regard for lay statements, to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); see also Dalton v. Peake, 21 Vet. App. 23 (2007). The opinion is not fully responsive to the questions directed by the Board in the May 2018 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Board is unable to render a clear and informed determination regarding entitlement to service connection for bilateral knee condition. Once again, the Board must remand the claim, hopefully for the ultimate time, in order for the AOJ to obtain an opinion that fully, clearly, and precisely answers all of the questions directed, supported by a thorough rationale. The matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records for his bilateral knee condition. The Agency of Original Jurisdiction (AOJ) should secure any necessary authorizations. If the records cannot be obtained, inform the Veteran of the records that could not be obtained, including what efforts were made to obtain them. The Veteran should also be notified that he may submit any such records. All efforts should be recorded in the claims folder. Additionally, all updated VA treatment records should be obtained. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 2. Once all available, relevant medical records have been received, and associated with the claims file, the AOJ should refer the Veteran's entire claims file to a medical professional of appropriate expertise to provide an addendum opinion (or, if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination, or a telehealth interview if an in-person examination is not feasible) to address the nature and etiology of the Veteran's bilateral knee condition. The claims file and a copy of this REMAND should be made available to the examiner for review. After record review and/or examination or telehealth interview, the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries, as clear and precise as possible: (a) Is it at least as likely as not that the Veteran’s bilateral knee osteoarthritis was incurred in, caused by, or etiologically related to the Veteran’s service? The examiner MUST consider and explicitly address the following when rendering the opinion: (i) The Veteran’s hip injury during service. (ii) The Veteran’s use of crutches as a result of the in-service injury. (iii) The Veteran stepping into a hole during physical training while in service. (iv) The cumulative effect of the above injuries. The examiner MUST consider and address any lay and medical evidence of continuous symptoms since separation from service. The basis for each opinion is to be fully explained with a complete discussion of the pertinent lay and medical evidence of record and sound medical principles, including the use of any medical literature or studies, which may reasonably explain the medical analysis in the study of this case. If any of the above issues cannot be resolved without resorting to mere speculation, then a detailed medical explanation as to why this is so must be provided. The absence of contemporaneous records showing complaints of, diagnosis, or treatment for the conditions alone, is insufficient rationale for a nexus opinion. 3. As this is the fourth remand in these matters, the AOJ should carefully and thoroughly review the record to ensure all of the directives have been sufficiently completed, conduct any additional development deemed necessary, and readjudicate the claims. If any benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.