Citation Nr: 21004089 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 13-13 561 DATE: January 26, 2021 REMANDED Service connection for a right knee disability is remanded. Service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1970 to August 1974, with an additional period of service not eligible for VA benefits from August 1975 to February 1980. See June 1980 Administrative Decision. This matter comes before the Board of Veterans’ Appeals (Board) on remand from the Court of Appeals for Veterans Claims (Court). It was originally before the Board on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA). These issues were denied by the Board in a June 2019 decision. The Veteran appealed that decision to the Court, which vacated the decision pursuant to a June 2020 Joint Motion for Remand (JMR). In the JMR, the Court found that the Board erred by failing to ensure that VA fulfilled the duty to assist by obtaining an adequate medical opinion. In June 2016, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) no longer at the Board; a transcript of that hearing is of record. In December 2020, the Veteran was offered the opportunity to testify at a hearing before another VLJ. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. Because the Veteran did not respond to that letter within 30 days, the Board will proceed with adjudication. In the June 2020 JMR, the Court found that in the June 2019 Board denial of these issues, the Board relied upon the October 2016 VA examiner’s opinion regarding the Veteran’s bilateral knees. In a prior remand, the Board obtained this opinion after finding that the September 2009 VA examination did not address the left knee, and also ordered the examiner to address June 2016 buddy statements. However, the Court found that the October 2016 VA examiner failed to provide an adequate rationale to support the opinion regarding both of the Veteran’s knees. Furthermore, the VA examiner recognized but failed to address the Veteran’s lay statements, including an October 2012 statement regarding his medical appointment and sonogram results from Dr. Neff, indicating the Veteran had torn tendons, ligaments, and cartilage in the early 1990s. The examiner also failed to address further evidence suggesting an earlier onset of symptoms, to include two June 2016 buddy statements and the Veteran’s hearing testimony. As such, remand is required for an addendum opinion. The matters are REMANDED for the following action: 1. The AOJ should obtain updated VA and non-VA treatment records. 2. After the above development is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any bilateral knee disability. The examiner should review the claims file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all bilateral knee disabilities present during the appeal period. (b.) For each knee disability diagnosed, is it at least as likely as not (50 percent or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service from August 1970 to August 1974? Please explain why. The examiner must address the Veteran’s lay statements, including his October 2012 statement regarding his medical appointment and sonogram results from Dr. Neff, indicating the Veteran had torn tendons, ligaments, and cartilage in the early 1990s. The examiner also must address the evidence suggesting an earlier onset of symptoms, to include: - The June 2016 buddy statement by fellow service member D.S. placing onset of symptoms to at least 1974. - The June 2016 buddy statement by fellow service member M.M. placing onset of symptoms to at least 1980 and that he and the Veteran had cut short hunting a couple times because of the Veteran’s knee hurting him. - The Veteran’s June 2016 testimony that he injured his knee in service and that he had no post-service injuries. The examiner must provide an adequate rationale and opinion for both of the Veteran’s knees. If the examiner is unable to offer the opinion requested, he or she must explain in detail why that is the case. If the inability to opine is due to the fact that the examiner lacks the expertise to render such an opinion, or due to the fact that some additional testing or information is needed, and possibly available, that would permit such an opinion, the examiner should clearly and specifically state so, and, if applicable, the examiner should also state precisely what additional testing or information is needed in order to render the requested opinion. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Kerner, 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.