Citation Nr: 21063578 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 13-20 424 DATE: October 14, 2021 REMANDED Entitlement to service connection for a left knee strain is remanded. Entitlement to service connection for a right knee strain is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2002 to May 2006. This matter comes to the Board of Veterans' Appeals (Board) from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2015 the Veteran testified before the undersigned via video teleconference hearing. A transcript of the hearing is of record. In June 2017, the Board denied the claim for service connection for a left knee disability but remanded the claim for service connection for a right knee disability for further development and did so again in May 2018. In February 2019, pursuant to a September 2018 Joint Motion for Partial Remand that vacated the Board's June 2017 denial of the claim for service connection for a left knee disorder, the Board also remanded the claim for service connection for a left knee disorder for further development. In February 2020 and October 2020, these claims were remanded for additional development. 1. Entitlement to service connection for a left knee strain is remanded. 2. Entitlement to service connection for a right knee strain is remanded. Regrettably, yet another remand is necessary for further evidentiary development of the Veteran's appeal. The Veteran was afforded relevant VA examinations in April 2016, September 2017, June 2019, September 2019, February 2020, and June 2021. The April 2016 VA examination concluded that the Veteran had no bilateral knee disability, but since the Veteran's right knee was not listed as a claimed condition, this examination resulted in the remand of the claim for service connection for a right knee disability in June 2017. The September 2017 VA examination diagnosed the Veteran with a right knee strain. A medical opinion was obtained in December 2017, in which the examiner concluded that the Veteran's right knee disorder is less likely than not related to service because the Veteran's claims file lacks objective medical evidence to confirm diagnosis for any right knee condition after military service. However, this opinion disregarded the September 2017 diagnosis of a right knee disability and resulted in the May 2018 remand. The June 2019 VA examination diagnosed the Veteran with a left knee strain. The examiner concluded that the Veteran's left knee disorder is less likely less likely than not related to service because the Veteran's service treatment records are silent for any knee conditions. The examiner noted the Veteran's June 2015 hearing testimony where the Veteran testified to experiencing knee pain during service as a result of parachuting and running while carrying heavy equipment but did not explain why the Veteran's testimony "does not impact negative opinion." An addendum opinion was obtained in October 2019, in which the examiner concluded that the Veteran's right knee disorder is also less likely less likely than not related to service because the Veteran's service treatment records are silent for any knee conditions. The examiner once again noted the Veteran's report of experiencing knee pain during service as a result of parachuting and running while carrying heavy equipment, but the opinion remained negative, and a negative opinion solely based on the lack of documented evidence of an event or incident in service has no probative value. Pursuant to the February 2020 Board remand, another VA examination was afforded to the Veteran in the same month. The examiner opined that the Veteran did not have a current knee disability and provided a negative nexus opinion based on the lack of a current disability. However, the examiner did not take note of the Veteran's reported claim of repeated trauma to the knees dating back to his active-duty service that results in his inability to walk and run long distances. In October 2020, the Board remanded the claim in another attempt to obtain an adequate VA examination and opinion. Based on the remand, the Veteran was afforded another examination in June 2021. The June 2021 VA examination revealed that the Veteran had a diagnosis of a bilateral knee strain, during which the Veteran reported a gradual onset of pain since 2003, which he attributed to running and ruck marches. The examiner provided a negative opinion, solely based on the fact that there was no noted treatment or diagnosis of a bilateral knee strain during service. As was noted in the Board's previous remands the examinations have unfortunately, for the most part, focused on one knee disability at a time and thereby ignore the other disabled knee; notably the September/December 2017 examiner does not note the existence of a left knee strain, and the June 2019 examiner does initially note the existence of a right knee strain. Additionally, the Board finds that these opinions did not adequately consider the Veteran's lay statements. A medical examination is inadequate where the examiner impermissibly ignored the Veteran's lay assertions regarding onset of symptoms during service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Additionally, it has been held that the presence of a chronic disability at any time during or immediately preceding the claims process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding the current disability requirement may be satisfied by evidence of the disability shortly before the claim is filed). Therefore, even if the Veteran's knee disability did not exhibit any symptoms in the February 2020 VA examination, the Veteran is considered to have already met the burden of a current disability based on the medical evidence of record. Accordingly, the Board must once again remand the matter to ensure compliance with the October 2020 remand by affording the Veteran another examination and opinion from a different appropriate VA examiner. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. The Veteran must be afforded a new VA examination, by a new examiner with appropriate expertise, to determine the nature and etiology of the Veteran's diagnosed bilateral knee disabilities. Any and all studies, tests, and evaluations that are deemed necessary should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of the transcript from the June 2015 Board hearing, and the VA and private treatment records, and since both right and left knee disabilities have been diagnosed during the pendency of the claims, the examiner cannot provide a negative opinion on the basis that the Veteran does not have a currently diagnosed knee disorder at the time of the examination. The examiner should then provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that the Veteran's diagnosed bilateral knee disabilities, originated during, or is etiologically related to, active duty service. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. The examiner is advised that the Veteran is considered competent to be able to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.