Citation Nr: 21062066 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 19-21 405 DATE: October 6, 2021 REMANDED The claim of entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1985 to March 1988. This appeal to the Board of Veterans' Appeals (Board) is from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Board remanded this claim back to the RO for further development and consideration including for an addendum medical opinion concerning the nature and etiology of this right knee disability at issue, especially in terms of whether related or attributable to the Veteran's military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). There was not, however, compliance with the Board's remand directives including the acceptable substantial compliance, so the Board is again remanding this claim. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers a right on a claimant to compliance with the remand order, as a matter of law). But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As directed in the prior June 2021 Board remand, the VA examiner was to record and consider the Veteran's lay statements regarding knee swelling as a result of carrying 50 pounds while marching in boot camp, daily training, and wear and tear from service. However, in providing an opinion against this claim in August 2021, the VA examiner's rationale merely stated that the "Veteran's active-duty medical records are silent for right knee conditions. There is no evidence of chronicity of care. A nexus has not been established." The VA examiner did not record or consider the Veteran's lay assertions. Rather, the examiner seems to have relied solely or primarily upon the absence of documented evidence of right knee pain during and immediately following conclusion of the Veteran's service. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (noting that the VA examiner's opinion, which relied solely on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"); Cf. Dalton v. Nicholson, 21 Vet. App. 23 (2007) ("the medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and his military service."). Moreover, that VA examiner impermissibly equated the 38 C.F.R. § 3.303(b) requirement of continuity of symptoms with continuity of treatment ("chronicity of care"). Continuity of symptoms, not instead treatment for them, is the essence of 38 C.F.R. § 3.303(b). Savage v. Gober, 10 Vet App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Consequently, more medical comment is needed to correct those failings. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA endeavors to provide an examination for a medical opinion, it must ensure they are adequate). Accordingly, this claim again is REMANDED for the following still additional development and consideration: Obtain more medical comment (an addendum opinion) concerning the etiology of the Veteran's right knee disability especially in terms of whether as likely as not related or attributable to his military service. To assist in making this determination, the examiner must have access to the relevant medical and other evidence in the Veteran's electronic claims file, including a complete copy of this REMAND. In responding, the commenting clinician must consider and discuss all pertinent medical and other evidence of record including all lay evidence. To this end, the examiner must consider the Veteran's competent lay assertions regarding knee swelling from carrying 50 pounds while marching in boot camp, daily training, and wear and tear from service. If, as apparently the prior August 2021 VA examiner considered significant, there is no indication of right knee disability during the Veteran's service at least in the way of documented treatment, there must be more explanation of why it is reasonable to have this expectation. Moreover, the Veteran's lay assertions of right knee disability during and continuously since his service cannot be summarily discounted merely on the grounds of no indication of "chronicity of care" (i.e., continuity of treatment) since the legal standard, instead, according to § 3.303(b), is continuity of symptoms. Thus, the mere absence of documented evidence of diagnosis or treatment for this specific disability or symptoms associated with it during or shortly after the Veteran's service cannot, alone, serve as the sole or exclusive basis for a negative opinion, although this is one of several factors to be considered. In other words, the mere absence of evidence does not necessarily equate to unfavorable evidence. There are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Further in this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and these reports must be acknowledged and considered in formulating the requested opinion. If lay assertions in any regard are discounted, the physician should clearly so state and explain why. Rationale for the opinion therefore is essential, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, 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.