Citation Nr: 21063342 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-28 158 DATE: October 14, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from January 1969 to June 1970 and in the United States Navy from January 1971 to September 1971, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified before the undersigned. In November 2019, the Board remanded these matters for further development. Initially, the Board notes that the Veteran's first period of service in the Marine Corp from January 1969 to June 1970 was characterized as "other than honorable" and a complete bar to benefits until 2018, when his discharge was upgraded to "honorable." The Board received the Veteran's updated DD Form 214 noting honorable service for this period in December 2020. 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. The Veteran asserts that his bilateral knee disabilities had their onset during his active-duty service, to include as being due to the cumulative impact of his service as a Combat Engineer in the Marine Corps and as a Damage Controlman in the Navy. See September 2016 VA Form 21-526EZ, June 2019 Board Hearing Transcript at 2, 5, 6. The Veteran has current diagnoses of bilateral degenerative arthritis. See January 2020 VA examination report. Regarding any in-service complaints, treatment, or diagnoses of knee disorders during the Veteran's active-duty service, the Board notes that the Veteran's first period of service in the Marine Corps was recently upgraded from a status that was previously considered a bar to VA benefits to "Honorable" in a July 2018 Board of Corrections of Naval Records. This upgrade to the character of discharge for the Veteran's first period of service, while completed prior to the January 2020 and June 2020 VA examination and addendum opinion, was not uploaded to the claims file until December 2020 and thus could not have been considered by the January and June 2020 VA examiner in forming her opinion. Accordingly, these matters must be returned for an addendum opinion on this basis alone. Additionally, the examiner relied on the Veteran's lack of treatment for knee pain until 2009 as the basis for the denial when the Veteran reported throbbing knee pain in February 1991 and a medical doctor noted arthritic changes at that time and suggested that his knee pain may be related to akathisia. See February 1991 Private Psychiatric Treatment Records. Accordingly, as the June 2020 VA examiner relied on inaccurate factual premise and additionally failed to address the reasonably raised matter of whether the Veteran's psychiatric medication may be either the proximate cause of or aggravating his bilateral knee disabilities, the examination is also inadequate in this regard. In this regard, the Board notes VA treatment records document the Veteran's report of knee pain associated with using prescribed Trazodone. See February 1999 and October 1999 VA treatment records. As the Veteran is now service-connected for an acquired psychiatric disorder, the question as to whether it is at least as likely as not that the Veteran's psychiatric medications either caused or aggravated his current knee disabilities must be addressed on remand. Finally, the Board notes the Veteran is competent to report that he began to experience knee pain in service, that he treated it with aspirin, and that the pain continued to the present. See June 2019 Board Hearing Transcript at 2, 5; December 2006 VA Form 21-4138; September 2009, October 2009, November 2016 VA treatment records; January 2020 VA examination report. The Veteran has also reported, in contrast to these assertions, that his knee pain began in 1990 when he was experiencing psychiatric symptoms that included auditory and visual hallucinations that resulted in an accidental fall from a 5-foot-high scaffolding. See August 2008 VA treatment records. The Veteran also reported the new onset of knee pain after an August 2015 motor vehicle accident. See August 2015 VA treatment records. In October 2015, the Veteran reported knee pain associated with his occupation as a shelf stocker that required 3 to 4 hours per day kneeling in to arrange goods. See October 2015 VA treatment records. Given these inconsistent statements, the Board finds the Veteran is not credible regarding his assertions of when his knee pain initially onset. The Board recognizes that the credibility analysis above is a departure from the November 2019 remand, since it included a directive that the VA examiner should assume as true the Veteran's lay assertions as to the onset of his disabilities, which amounted to a favorable credibility finding. Due process requires fair notice and an opportunity to respond when the Board purports to reverse prior assertions or impressions that evidence is credible or otherwise satisfactory to establish a fact necessary to the claim. See Smith v. Wilkie, 32 Vet. App. 332, 337-39 (2020); see also Thurber v. Brown, 5 Vet. App. 119, 123 (1993) ("[t]he entire thrust of the VA's non-adversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process."). The Board finds that this remand constitutes the notice required by caselaw, and the Veteran may respond in writing upon remand in relation to this credibility finding, if he deems response is warranted. The matters are REMANDED for the following action: Obtain an addendum opinion from an examiner other than the January 2020 and June 2020 VA examiners to determine the etiology of the Veteran's bilateral knee disabilities. The entire claims file, including a copy of this remand, must be made available to and reviewed by the examiner. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner is then asked to address the following: Is it at least likely as not (50 percent or greater probability) that the Veteran's bilateral knee disabilities: (a) had their onset during the Veteran's active-duty service, or are otherwise related to his active-duty service, to include the cumulative impact of his service in the Marine Corps as a Combat Engineer and in the Navy as a Damage Controlman? In answering question (a), please address the following: 1. the report of throbbing knee pain in 1991 associated with arthritis (see February 1991 private psychiatric treatment records); 2. the September 2009 VA diagnosis of a right knee complicated cyst in the medial aspect of the right popliteal fossa consistent with a Baker's cyst; 3. the November 2009 VA diagnosis of a right knee complex tear of the posterior horn medial meniscus and the linear horizontal tear posterior horn lateral meniscus; 4. the May 2010 VA diagnosis of right knee pain secondary to arthritis and popliteal cyst; and 5. the October 2015 prepatellar bursitis on right knee; (b) are proximately due to his service-connected PTSD, to include any prescribed medications; or (c) have been aggravated (worsened beyond natural progression) by his service-connected PTSD, to include any prescribed medications. In addressing questions (b) and (c), please discuss the following: 1. the February 1991 private psychiatrist that suggests the Veteran's knee pain may be related to arthritic changes and mild akathisia; and 2. the February 1999, October 1999, VA treatment records noting the Veteran's report of knee pain in relation to Trazodone prescribed for his psychiatric disorders; and Please note that the primary disability (an acquired psychiatric disorder) need not be service-connected, or even diagnosed at the time the secondary condition (bilateral knee disabilities) is incurred, and reliance on this fact in support of a negative opinion will render it inadequate. A complete rationale must be given for all opinions and conclusions expressed. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should provide a rationale for that conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.