Citation Nr: 21063269 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-21 767 DATE: October 13, 2021 REMANDED Service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1990 to March 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. This case was previously remanded in September 2017 and October 2019 Board decisions for further development. In the June 2020 Board decision, the Board denied service connection for a left knee disability secondary to service-connected right knee disability. The Veteran appealed the Board's June 2020 decision to the United States Court of Appeals for Veterans Claims (Court), which in a May 2021 order, granted the parties' joint motion for remand, vacating the Board's June 2020 decision and remanding the case for compliance with the terms of the joint motion. Service connection for a left knee disability is remanded. In the May 2021 joint motion for remand (JMR), the parties determined that the Board provided an inadequate statement of reasons or bases for the denial of entitlement to service connection for a left knee disability. Thus, the Board must remand this matter for compliance with the Court's May 2021 order granting the parties' JMR. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the JMR or explain why the terms will not be fulfilled.). The Court held that the Board failed to provide a VA examination that was adequate for rating purposes, and which substantially complied with its October 2019 remand order. Specifically, the Court stated the 2020 VA examination is inadequate for rating purposes as the examiner reiterated the findings of the 2018 VA examiner, agreeing with the 2018 VA examiner's assessment and coming to the same conclusion. The Court pointed to the VA claims file containing documentation of Veteran's left knee pain, tenderness, and treatment between 2019 and 2017 and concluded that the 2020 VA examiner's finding that there were no left knee complains from May 2010 to January 2017 is contradicted by the evidence of record. The Court also noted that 2020 VA examiner did not adequately opine as to whether Veteran's left knee condition was caused or aggravated by her currently service-connected back and right hip conditions, failing to substantially comply with the Board's 2019 remand directives. The Court stated that, on remand, the Board should obtain a new VA examination for Veteran's left knee condition that is adequate for rating purposes and complies with the Board's 2019 remand directives addressing Veteran's reports as to her left knee disability, including the December 2013 and February 2014 treatments of left knee pain, and opining as to whether Veteran's service-connected disabilities caused or aggravated her current left knee disability. As such, another VA examination is necessary and updated treatment records should be added to the file. In addition, the parties agreed that there were outstanding VA treatment records. Those must be associated with the claims folder. Thereafter, VA must again adjudicate these issues. The matters are REMANDED for the following action: 1. Contact the Veteran and request that she identify any and all outstanding VA and private treatment records related to her left knee claim. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records and associate them with claims file. 2. Obtain outstanding VA treatment records, including non-VA records related to the VA Choice Program. 3. Notify the Veteran that she may submit lay statements from herself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of her in-service and post-service symptomatology regarding her claimed left knee disability. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the onset and etiology of her left knee impairment. The claims file must be reviewed by the examiner, who must identify all left knee impairment. The examiner must opine as to whether it is as at least as likely as not that any currently diagnosed left knee disabilities are related to and/or had their onset during the Veteran's period of service. The examiner must specifically acknowledge and discuss any reports by the Veteran of left knee problems during service and since service. The examiner must further opine as to whether the Veteran's service-connected right knee disability (internal derangement of the right knee, and now status post right knee replacement) and thoracolumbar spine disability (lumbar spine strain), or any other service-connected disabilities, caused or aggravated any currently diagnosed left knee disabilities. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.