Citation Nr: 21062906 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 14-42 315 DATE: October 12, 2021 REMANDED Entitlement to a rating in excess of 10 percent for chronic hamstring strain of the left knee is remanded. Service connection for a left meniscus disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1998 to January 2002 and from January 2003 to September 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, 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 July 2020 decision, the Board in part denied a rating in excess of 10 percent for chronic hamstring strain of the left knee. The Board found that most probative evidence of record disclosed that, the Veteran's chronic hamstring strain of the left knee, at worst, did not manifest in flexion limited to 45 degrees. The Veteran appealed the above-noted issue in the July 2020 Board decision to the United States Court of Appeals for Veteran's Claims (Court), which resulted in a May 2021 Joint Motion for Partial Remand (JMPR). The parties to the JMPR found that the Board did not adequately assess the probative weight of the Veteran's lay assertion during a VA examination about his left knee buckling during a physical fitness test in August 2004, which elicited pain and swelling. The parties also noted that the Veteran's representative cited this lay account of instability in January 2015, contending that the Veteran warranted an "additional evaluation" for instability. Moreover, at the March 2018 Board hearing the Veteran testified that his left knee had caused him to fall "at least once". (The parties emphasized the applicability English v. Wilkie, 30 Vet. App. 347, 352-53 (2018) to consideration of findings of left knee instability under 38 C.F.R. § 4.71(a) Diagnostic Code 5257. Additionally, the parties agreed that the Board had erred when it found that a VA clinician had not indicated that the Veteran had a left meniscus disability. Here, the parties referenced the November 2012 clinician's response of "yes" in a DBQ to "whether the Veteran now has or [...] ever had a meniscus (semilunar cartilage) condition". The Veteran also testified about the meniscus tear in 2004 during the Board hearing. The parties underscored that the Board's finding that Lyles v. Shulkin, 29 Vet. App. 107, 109 (2017) was not for application in the Veteran's case was misplaced in light of the clinician's finding in the November 2012 examination. The Board acknowledges evidence to which the parties to the JMPR address; however, it finds that these issues, in light of the extensive body of lay and medical evidence in this case, requires clarifying assessment. 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 to assess the severity of the Veteran's service-connected chronic hamstring strain of the left knee. The clinician must review the claims file and indicate such review within the body of the opinion. The clinician should perform all necessary clinical testing and evaluation. The clinician must address all reports of symptoms (both lay and medical), including the lay account of left knee buckling during a physical fitness test in August 2004 and the Veteran's March 2018 lay testimony that his left knee had caused him to fall "at least once", as noted above and as noted in the May 2021 JMPR. Upon thorough consideration of the totality of evidence, the clinician should render an opinion as to the severity of the Veteran's service-connected chronic hamstring strain of the left knee including the Veteran's reports of buckling and falling as relevant to instability. The clinician must also determine whether the Veteran has or has had a left meniscus disability. During the Board hearing, he testified that he was told about the tear in 2004 and currently felt that the knee bones were rubbing together. Upon an affirmative determination, the clinician should render an opinion as to the severity of the left meniscus disability, applying all applicable evaluative criteria. When assessing the severity of service-connected chronic hamstring strain of the left knee and left meniscus disability, if so diagnosed, the clinician must consider the following: (a.) If it is not possible to provide a specific measurement, or an opinion regarding repetitive use, flare-ups, symptoms, or functional impairment without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). (b.) Discuss the functional limitations, if any, of the Veteran's service-connected chronic hamstring strain of the left knee (to include instability) and left meniscus disability, if so diagnosed. (continued next page) The clinician should provide complete rationales for all opinions provided. If an opinion cannot be rendered without to resorting to mere speculation, the clinician should identify all medical and lay evidence considered in her/his conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 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.