Citation Nr: 21000032 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-04 153 DATE: January 4, 2021 REMANDED 1. Service connection for bilateral knee condition is remanded. 2. Service connection for bilateral ankle condition is remanded. 3. Service connection for left shoulder condition is remanded. REASONS FOR REMAND The Veteran served in the U.S. Navy from June 1980 to July 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision and notification letter by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in August 2013. A statement of the case (SOC) was issued in December 2014, and the Veteran perfected her appeal in February 2015. The Veteran had a July 2018 hearing with a Veteran’s Law Judge (VLJ) who is no longer employed at the Board. The Veteran was offered an opportunity to have a new hearing before another VLJ, but the Veteran did not respond to the notice. As such, the claim has been assigned to the undersigned. 38 C.F.R. § 20.106. In May 2019, the Board denied entitlement to service connection for bilateral knee condition, bilateral ankle condition, and left shoulder condition. In July 2020, the United States Court of Appeals for Veterans Claims (CAVC) granted a Joint Motion for Partial Remand (JMPR), and ordered that additional development be undertaken consistent with the terms of the Joint Motion. Service connection for bilateral knee condition, bilateral ankle condition, and left shoulder condition are remanded. As noted above, these claims were remanded by CAVC in July 2020 for action consistent with the terms of the parties’ Joint Motion. The Joint Motion largely identified the failure of the VA in not obtaining medical opinions which address whether the Veteran’s bilateral knee and bilateral ankle conditions are related to her documented in-service left knee and right ankle injuries. The CAVC further determined that the Board erred by relying on the inadequate March 2012 VA medical opinion to deny entitlement to service connection for the Veteran’s left shoulder condition. The Motion specifically notes that the March 2012 examiner failed to address the Veteran’s lay reports, and solely based his opinion on the lack of treatment between service and the present condition. Under these circumstances, the Board will not proceed with final adjudication of these claims until competent medical opinions, with supporting rationale, are obtained that adequately address whether the Veteran’s bilateral knee condition, bilateral ankle condition, and left shoulder condition are related to her in-service injuries. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated VA or adequately identified private treatment records relevant to this claim on appeal. 2. Upon receipt of all additional records, obtain medical opinions from an appropriate VA physician concerning the nature, extent, and etiology of the Veteran’s bilateral knee, ankle, and left shoulder conditions and its purported relationship or correlation with her military service, to include its relationship or correlation with the Veteran’s documented in-service left knee, right ankle, and left shoulder injuries. The physician must review all relevant evidence, including specifically a complete copy of this remand, the July 2020 JMPR, the July 2018 hearing transcript, the Veteran’s previous medical opinion report (See March 2012 VA Examination), her STRs, and her relevant VA and private treatment records. Based on a review of this evidence, the physician must provide an opinion on the following questions: Is it at least as likely as not (probability of 50 percent or greater) that the Veteran’s bilateral knee condition had its onset or is otherwise related to her active duty service? Is it at least as likely as not (probability of 50 percent or great) that the Veteran’s bilateral ankle condition had its onset or is otherwise related to her active duty service? Is it at least as likely as not (probability of 50 percent or greater) that the Veteran’s left shoulder condition had its onset or is otherwise related to her active duty service? All opinions provided must include complete rationale specifically addressing the concerns indicated in this remand and its directives, as well as in the Court-granted JMPR, preferably with citation to supporting factual data and medical literature or authority, as appropriate. Before the requested opinion is rendered, the examiner should be advised that the Veteran’s statements regarding the incurrence of the claimed disability and the continuity of the symptomatology thereof must be considered and discussed, if possible, and to the extent that they are relevant. The examiner should also be advised that, to the extent possible, the rationale supporting the opinion should not be based solely on the absence of contemporaneous medical records showing evaluation or treatment for the claimed condition after service. The examiner should also be advised that pain may be considered a disability if it diminishes the body’s ability to function, whether that pain is diagnosed as connected to a current underlying condition or not. If an opinion cannot be rendered without resorting to mere speculation, the physician must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. In other words, merely saying that he/she cannot respond will not suffice. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (before the Board can rely on a physician’s conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion, or the basis must otherwise be apparent in the Board’s review of the evidence). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.Russell 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.