Citation Nr: 21002706 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-33 228 DATE: January 14, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1982 to April 1986. In February 2019, the Board denied the Veteran’s claims. The Veteran appealed the February 2019 Board decision to the United States Court of Appeals for Veterans Claims (the Court). In February 2020, the Court granted the parties’ Joint Motion for Partial Remand filed by the parties, vacating the Board’s decision on the claims, and remanding the claims to the Board for action consistent with the terms of the Joint Motion. The Joint Motion instructed the Board to consider both direct service connection and aggravation of a pre-existing condition for the Veteran’s bilateral knee disabilities. In August 2020, the Board reopened and remanded the claims to provide the Veteran with a VA medical examination and opinion. Although the Board regrets further delay, remand is again required to afford the Veteran all due process. 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. The August 2020 Board remand directed the VA examiner to consider whether the Veteran had a current left or right knee disability that was related to service, or a left or right knee condition that pre-existed service and was aggravated beyond its natural progression during service. The VA examiner was asked to address September and October 1982 service treatment records documenting the Veteran’s history of knee pain, January 1985 service treatment records documenting knee effusion, and a February 1985 motorcycle accident. A September 2020 VA examiner found that the Veteran’s left and right knee conditions were not related to service. However, the VA examiner did not address the Veteran’s September and October 1982 service treatment records documenting the Veteran’s history of knee pain, January 1985 service treatment records documenting knee effusion, and a February 1985 motorcycle accident. In November 2020, the VA examiner provided an addendum opinion that the Veteran had a pre-existing right knee condition that was not aggravated beyond its natural progression by service. However, the VA examiner did not provide rationale to support this conclusion. The VA examiner also did not address whether there was a pre-existing left knee condition. An adequate medical examination must provide a rationale and explanation for its conclusions. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board errs when it fails to ensure substantial compliance with a Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Accordingly, the Board finds it necessary to remand these claims for compliance with the prior Court and Board remand directives. The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion addressing the nature and etiology of any right knee disability. The examiner must review the claims file and note that review in the report. The examiner must consider the Veteran’s statements and all lay statements regarding onset in service and statements regarding the continuity of symptomatology. A complete rationale for all opinions expressed must be clearly provided. The examiner is asked to provide an opinion and rationale for the following: (a.) Did any right disability clearly and unmistakably (it is medically undebatable) preexist the Veteran’s entrance to active service? The examiner must state what evidence in the record supports that opinion. In addition to the other treatment records, the examiner must specifically consider the September and October 1982 service treatment records documenting the Veteran’s history of knee pain, January 1985 service treatment records documenting knee effusion, and the February 1985 motorcycle accident. (b.) If any right knee disability is found to have clearly and unmistakably preexisted service, the examiner must provide an opinion as to whether it is clear and unmistakable that the preexisting knee disability was not aggravated during service, including consideration of treatment for knee pain and effusion during service and any motorcycle accident injuries during service. (c.) For any disability that is found to not clearly and unmistakably have preexisted service, the examiner should provide an opinion was to whether it is at least as likely as not (50 percent or greater probability) that any right knee disability is etiologically related to service or any in-service injury, disease, or event. In addition to the other treatment records, the examiner must specifically consider the September and October 1982 service treatment records documenting the Veteran’s history of knee pain, January 1985 service treatment records documenting a knee effusion, and the February 1985 motorcycle accident. The examiner must also consider and discuss the Veteran’s claimed fall, and his report that he started receiving cortisone injections during active service. 2. Obtain an addendum VA medical opinion addressing the nature and etiology of any left knee disability. The examiner must review the claims file and should note that review in the report. The examiner must consider the Veteran’s statements and all lay statements regarding onset in-service and statements regarding the continuity of symptomatology. A complete rationale for all opinions expressed should be clearly provided. The examiner is asked to provide an opinion and rationale for the following: (a.) Did any left knee disability clearly and unmistakably (it is medically undebatable) preexist the Veteran’s entrance to active service? The examiner must state what evidence in the record supports that opinion. In addition to the other treatment records, the examiner must specifically consider the September and October 1982 service treatment records documenting the Veteran’s history of knee pain, January 1985 service treatment records documenting knee effusion, and the February 1985 motorcycle accident. (b.) If any left knee disability is found to have clearly and unmistakably preexisted service, the examiner must provide an opinion as to whether it is clear and unmistakable that the preexisting knee disability was not aggravated during service, including consideration of treatment for knee pain and effusion during service and any motorcycle accident injuries during service. (c.) For any disability that is found to not clearly and unmistakably have preexisted service, the examiner should provide an opinion was to whether it is at least as likely as not (50 percent or greater probability) that any left knee disability is etiologically related to service or any in-service injury, disease, or event. In addition to the other treatment records, the examiner must specifically consider the September and October 1982 service treatment records documenting the Veteran’s history of knee pain, January 1985 service treatment records documenting a knee effusion, and the February 1985 motorcycle accident. The examiner must also consider and discuss the Veteran’s claimed fall, and his report that he started receiving cortisone injections during active service. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Casey 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.