Citation Nr: 21002216 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 12-20 397 DATE: January 13, 2021 REMANDED Service connection for a left knee condition. Service connection for a right hip condition. REASONS FOR REMAND The Veteran served on active duty from June 1977 to June 1981. The case is on appeal from a June 2011 rating decision. In July 2015, the Veteran testified at a Board hearing. The case was last before the Board in August 2020. At that time, the Board remanded the claims of left knee and right hip conditions for further development. The Veteran also has a pending appeal pertaining to a jaw or oral disability. This issue will be addressed in a separate decision at a later time. 1. Service connection for a left knee condition. 2. Service connection for a right hip condition. The Board finds that there was not substantial compliance with the Board’s August 2020 remand directives where the Board directed the RO to obtain a new VA medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board had observed that earlier VA examinations only relied on the lack of documented in-service injury without considering the Veteran’s competent reports of experiencing knee and hip pain in and since service. Upon remand, a new VA medical opinion was provided in October 2020. With regard to both the left knee and right hip, the VA examiner acknowledged the Board’s remand directives to consider the Veteran’s lay statements. However, the examiner proceeded by again referring back to the February 2020 VA medical opinion and relying on the lack of contemporaneous documented treatment without explaining why documentation was needed. The medical examiner disregarded the lay evidence of such by stating the Veteran’s lay statements establish chronicity of symptoms, but cannot be relied upon as credible medical evidence because he is not qualified to ascribe symptoms to a diagnosis or determine etiology. Additionally, the examiner again cited to “natural aging” as the reason for arthritis without explaining whether this remained true when considering the Veteran’s lay statements of experiencing knee and hip pain as a result of the work he did on naval ships during active service, especially given his military occupational specialty (MOS) as a hull maintenance technician. As such, the examiner concluded the claimed conditions are less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Therefore, the Board has determined that a remand is once again required to comply with the Board’s prior remand directives. Furthermore, as the VA examiner has essentially provided the same opinion each time without any changes, it appears the examiner did not make a careful review of the file. So, this leaves the October 2020 VA opinion inadequate. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016). Accordingly, the Veteran should receive a new VA examination with a different VA examiner to obtain a new etiology opinion. In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain VA treatment records dated from March 2020. 2. Thereafter, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) with a different VA examiner other than the examiner who provided the examinations/addendums in February 2020 and October 2020 in connection with the left knee and right hip claims. The entire claims file must be reviewed by the examiner. For each left knee and right hip condition identified, the examiner should provide an opinion as to whether the condition at least as likely as not (1) began during active service, (2) manifested within 1 year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is otherwise related to an in-service injury, event, or disease. In answering this question, the examiner must consider the statements from the Veteran indicating that his left knee and right hip symptoms started during and continued after service. Consideration should be given to the Veteran’s lay statements, especially in light of his contention that he sustained a “wear and tear” injury because of his job duties aboard ship as a hull maintenance technician. The examiner is asked to explain why the Veteran’s statements make it more or less likely that a left knee and right hip condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of a current diagnosis. (Continued on the next page)   The examiner may not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. A complete rationale should be provided for an opinion expressed. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becton, 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.