Citation Nr: 21062486 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-60 356 DATE: October 7, 2021 REMANDED Service connection for left knee osteoarthritis is remanded. Service connection for right knee osteoarthritis, to include as secondary to right knee osteoarthritis, is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Navy from July 1959 to December 1962. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Veteran's claims file contains a copy of the hearing transcript. Discussion In a January 2020 decision, the Board denied service connection for both left knee osteoarthritis and right knee osteoarthritis. In pertinent part, the Board found that the preponderance of evidence failed to show that left knee osteoarthritis manifested during active service or within one year of separation. Consequently, the Board found that service connection could not be granted on a secondary basis for right knee osteoarthritis as a matter of law. The Veteran appealed the January 2020 Board decision to the United States Court of Appeals for Veteran's Claims (Court), which resulted in a March 2021 memorandum decision. The Court vacated the Board's denial of the two instant claims for service connection. In pertinent part, the Court found that the Board erred in failing to discuss explicitly whether an April 2016 VA clinician's negative nexus opinion was adequate (rather the Board found this opinion adequate implicitly). The Court emphasized that Board's failure to make the necessary factual findings in the first instance frustrated the Court's review. Specifically, the Court found that the Board had not discussed whether the April 2016 clinician had considered the Veteran's lay account that "he spent 25 to 30 years suffering from left knee discomfort" after service within the calculus of the negative nexus opinion. Moreover, the Court found that the Board provided inadequate reason or bases for affording "low probative weight" to the Veteran's lay accounts based upon a continuity of symptomatology theory as the Board did not adjudicate the claims on such a basis. Lastly, citing Smith v. Gober, 236 F. 3d 1370, 1372 (Fed, Cir, 2001), the Court found that the Veteran's secondary service connection claim ("right knee osteoarthritis") was inextricably intertwined with the Veteran's direct service connection claim for left knee osteoarthritis. In order to comply with the Memorandum Decision, the Board finds an additional examination is required in which a clinician provides expert guidance as the Veteran's lay accounts and medical findings and/or medical literature. Here, the Board observes that it cannot substitute its own judgment for orthopedic expertise. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative to ascertain whether there are outstanding private records related to the two issues noted above. If affirmatively indicated, prepare releases, obtain the records, and associate the records with the claims file. The RO must make two attempts to obtain these relevant records unless the first attempt demonstrates that further attempts would be futile. Should VA not obtain any private records (as indicated), the RO must (1) inform the Veteran of the unobtained records (2) tell the Veteran steps taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 2. Obtain any and all outstanding VA treatment records, progress notes and associate the records with the claims file. 3. Arrange for a VA examination and opinion with an appropriate VA clinician. The clinician must review the claims file and indicate such review within the body of the opinion. The clinician should perform all necessary testing and evaluative protocols. The clinician must address all reports of symptoms (both lay and medical), including, amongst others, the Veteran's lay account of" 25 to 30 years suffering from left knee discomfort" as noted above and as noted in the April 2021 Memorandum Decision. In November 2010, he reported to a VA clinician that he injured his knee in the Navy but was then asymptomatic until 10-20 years earlier. In an April 2018 VA examination, the Veteran reported left knee pain for 50 years and underwent arthroscopy for meniscal tear in 1987. The clinician should consult medical literature for guidance as to "continuity of symptomatology" of joint discomfort for over three decades. The Board requests that the clinician cite the medical literature explicitly. 4. Upon completion of the above directed tasks, the clinician should respond to the following inquiries. a. Whether it is at least as likely as not (50 percent or more) that the Veteran's left knee osteoarthritis was incurred in, caused by, or aggravated by, or otherwise attributable to, service? AND b. Whether it is at least as likely as not (50 percent or more) that the Veteran's right knee osteoarthritis was incurred in, caused by, or aggravated by, or otherwise attributable to, service? AND c. Whether it is at least as likely as not (50 percent or more) that the Veteran's right knee osteoarthritis was proximately caused by, or aggravated beyond its natural progression by, left knee osteoarthritis? (continued next page) The clinician must provide complete, clearly-stated rationales for the conclusions reached. The clinician should provide explanations that consider the record and pertinent medical principles. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.