Citation Nr: 21003319 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-28 268 DATE: January 21, 2021 REMANDED Entitlement to service connection for right knee disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1980 to August 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision in August 2014 by a Department of Veterans Affairs (VA) Regional Office. In December 2018, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In April 2019, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for right knee disorder. In April 2019, the Board remanded the issue in order to afford the Veteran a VA examination so as to determine the nature and etiology of his right knee disorder, to include whether such clearly and unmistakably existed prior to service and was not aggravated therein. In December 2019, a VA clinician reviewed the record, interviewed the Veteran, and performed a physical examination, and opined chondromalacia patella clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In support of such opinion, she noted diagnoses of chondromalacia patella and subluxing patella in February 1978, but indicated that the Veteran did not have a current diagnosis of subluxing patella; rather, findings from magnetic resonance imaging (MRI) dated in September 2003 only demonstrated chondromalacia patella. The VA clinician also observed the absence of service treatment records documenting medical treatment for right knee symptoms. Additionally, she found it significant that an arthroscopic procedure was not performed until 1993 or 1994, approximately 13 years after separation from service. In addition, the diagnoses of residuals status/post arthroscopy to right knee, knee effusion, and degenerative osteoarthritis were reported post-service and unrelated to the Veteran’s military service. In this regard, the VA clinician indicated osteoarthritis was due to wear and tear over time, joint effusion was due to arthritis, and the arthroscopy was performed for a torn meniscus, which occurred once the Veteran left the military. In October 2020, a second VA clinician reviewed the record, interviewed the Veteran, and performed a physical examination, and opined that chondromalacia patella and subluxing patella of the right knee clearly and unmistakably pre-existed service and were not clearly and unmistakably aggravated therein, and osteoarthritis of the right knee, which did not clearly and unmistakably pre-exist service, was less likely than not incurred in or caused by the in-service illness, event, or injury. In this regard, she noted that the Veteran contended that he injured the right knee while playing football prior to service, and indicated that his in-service duties as a calvary scout, to include running, climbing, and jumping, resulted in a re-injury to the right knee, thereby aggravating a pre-existing disorder. However, the examiner found that the record was void of complaint or treatment for the Veteran’s right knee until 2001, which was 21 years after service, and the Veteran was diagnosed with osteoarthritis by X-ray in June 2008, which is common for people over 40 years of age, caused by wear and tear of cartilage, and is not known to be caused by pre-existing conditions. However, the Board finds that the aforementioned opinions are inadequate to adjudicate the claim for service connection for a right knee disorder. Specifically, neither VA examiner addressed whether the Veteran’s current right knee disorders were caused or aggravated by his in-service duties that required running, climbing, and jumping. In this regard, while the October 2020 VA examiner noted such allegation, she did not discuss the impact of such activities, if any, on the Veteran’s right knee disorders. Furthermore, neither VA examiner considered the Veteran’s and his spouse’s reports of a continuity of right knee symptomatology. Rather, both examiner relied upon the fact that the Veteran’s post-service treatment records were negative for any complaints or treatment for a right knee disorder for many years after service. However, the sole basis for rejecting lay statements cannot be the fact that there are no corroborating records. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) (“the Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms”). Therefore, the Board finds that a remand is necessary to obtain another addendum opinion, preferably from a VA examiner other than the clinicians who offered the December 2019 and October 2020 opinions, that addresses such matters. The matter is REMANDED for the following action: Forward the record, to include a copy of this Remand, to a VA clinician other than the clinicians who provided the December 2019 and October 2020 opinions for an addendum opinion addressing the etiology of the Veteran’s right knee disorder. Following a review of the record, the clinician should address the following inquiries: (A) For the Veteran’s diagnosed chondromalacia patella and subluxing patella of the right knee, which have previously been determined to clearly and unmistakably pre-existed his military service, is there clear and unmistakable evidence that such did not undergo an increase in the severity of the underlying pathology during service, i.e., was not aggravated during service? If there was an increase in the severity of either disorder, was such increase clearly and unmistakably due to the natural progression of the disease? (B) For the Veteran’s diagnosed osteoarthritis and residuals status/post arthroscopy (performed due to a torn meniscus) of the right knee, is it at least as likely as not (i.e., a 50 percent or greater degree of probability) that such had its onset in, or is otherwise related to, his military service? In offering such opinions, the examiner should consider the nature of the Veteran’s in-service duties that required running, climbing, and jumping, and his and his spouses statements regarding a continuity of right knee symptoms since service. The examiner is advised that the absence of evidence of complaints, treatment, or a diagnosis referable to a right knee disorder in the Veteran’s service treatment records cannot serve as the sole basis for a negative opinion. The examiner is also advised that a lack of post-service treatment records demonstrating a continuity of care cannot form the sole basis of a negative opinion. Thus, if the examiner rejects the Veteran’s lay statements as to onset and/or a continuity of symptomatology, he or she should provide a reason for doing so beyond the mere lack of corroborating records. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.