Citation Nr: 21003461 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-07 299 DATE: January 21, 2021 REMANDED 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from March 2004 to March 2009. These matters are before the Board on appeal from an August 2011 rating decision. In March 2015, a videoconference Board hearing was held before the undersigned; a transcript is in the record. In April 2015 and February 2020, the matters were remanded for additional development. 1., 2. Entitlement to service connection for left and right knee disabilities. The previous [February 2020] Board remand instructed that the Veteran be afforded a new VA examination to determine the nature and etiology of his claimed left and right knee disabilities. The examiner was to opine whether the Veteran’s diagnosed left and right knee disabilities are etiologically related to his service, to include the notations of shin splints/reports of overuse therein. The examiner was to specifically acknowledge (comment on) the lay statements by the Veteran, his mother, his fiancée, and a fellow servicemember submitted in support of the claims. The September 2020 VA examiner opined that the claimed condition is “less likely than not proximately due to or the result of the Veteran’s service-connected condition”. The examiner opined that despite reports of “shin splints” and “knee pain” during military service, the Veteran denied arthritis/rheumatism/bursitis or knee trouble/surgery in November 2008, at the time of his separation. The examiner noted that it was not until 2013 that there is a record of the Veteran seeking medical attention for knee conditions. The examiner opined that there is no chronicity found in the medical record to connect the Veteran’s current knee conditions to his military service, and it is less likely than not that the bilateral knee strain was incurred in or caused by his military service. The Board finds the September 2020 VA examiner’s opinion inadequate for rating purposes and nonresponsive to the Board’s previous remand instructions, as well as based on inaccurate factual history. A review of the claims file found that the Veteran first sought treatment for his knees approximately 9 months after his separation from service and again in August 2010 (both occasions prior to 2013). The examiner did not address [comment on their significance in support of continuity of knee complaints since service] the lay statements as instructed. Finally, regarding the opinion offered against secondary service connection, a secondary service connection theory of entitlement is not raised by record (the only service-connected disabilities area psychiatric disability and tinea), and such opinion was not sought. . The matters are REMANDED for the following action: 1. Arrange for the Veteran’s record to be forwarded to an appropriate clinician [other than the provider of the September 2020 medical opinion] for review and an advisory medical opinion regarding the likely etiology of his claimed bilateral knee disabilities. The opinion should respond to the following: (a.) Identify, by diagnosis, each right and left knee disability shown by the record during the pendency of these claims (i.e., since they were filed). [The examiner should note that under governing law, pain that results in functional loss constitutes a disability.] Specifically opine whether the Veteran has an undiagnosed illness manifested by right and/or left knee joint pain. (b.) If a knee disability is not diagnosed, reconcile that finding with the May 2015 private treatment records showing diagnoses of bilateral patellofemoral pain and imaging-confirmed chondromalacia and VA treatment records showing bilateral knee arthralgia on an active problem list. (c.) Identify the likely etiology for each right and left knee disability diagnosed. Specifically, is it at least as likely as not (a 50 percent or greater probability) that it is etiologically related to the Veteran’s service, to include the notations of shin splints/reports of overuse therein? The consulting provider must explain the rationale for all opinions in detail, citing to supporting clinical data and medical principles as deemed appropriate. The rationale must acknowledge that the Veteran was seen for knee complaints about 9 months after service and again in August 2010 (both occasions being prior to 2013). The rationale should also specifically acknowledge (discuss the significance of) the lay statements by the Veteran, his mother and fiancée, and a fellow service member, submitted in support of the claims. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.