Citation Nr: 21063691 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 16-00 654 DATE: October 15, 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 from October 1980 to October 1984 and November 1990 to June 1991. The issues come before the Board of Veterans' Appeals (Board) on appeal from July 2014 and February 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had an informal decision review officer (DRO) hearing in October 2015. He reported that his left knee was on appeal, but it should have been his right knee. In May 2017, he had a second DRO conference, where the right knee issue was addressed. Copies of the Informal Conference Reports are of record. The Veteran testified at a Travel Board hearing in October 2018, before the undersigned Veterans Law Judge (VLJ), sitting at the Albuquerque, New Mexico RO. A copy of the transcript is of record. The Board notes that the Veteran testified to having had service with the Reserves for active duty training (ACDUTRA) and inactive duty training (INACDUTRA). He specifically testified that he "did not recall" any of the above contentions occurring during his periods of Reserve duty. Therefore, the Board finds that it is not prejudicial for there not to be a remand for said records. The July 2014 rating decision denied reopening the claim for service connection for a left knee disability, while the February 2016 rating decision denied reopening the Veteran's claim for a right knee disability. Both rating decisions found no new and material evidence to reopen the claims. Notwithstanding, the Board, in a July 2019 decision, reopened and remanded the said claims for the AOJ to obtain any outstanding private and VA treatment records and schedule the Veteran for VA examinations. The Board found that there was substantial compliance with the January 2020 examinations, and in its October 2020, decision denied service connection. The Veteran appealed the denial to the U. S. Court of Appeals for Veterans Claims (Court) in June 2021. Later that month, in an Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacated, and remanded the issues to the Board for development consistent with the JMR. 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 contends that his bilateral knee disabilities are related to service. The Veteran's service treatment records (STRs) dated in July 1984 show treatment for "pain in knees -burning," in particular his right knee, which increased with "deep knee bending activity." The clinician diagnosed mild retro patellar pain syndrome. During an April 1985 VA examination, the Veteran reported pain in the left knee that started around 1983. In his May 1991separation physical, he reported "yes" on his Report of Medical History, to having had swollen and painful joints, and to which the examining physician noted: "exercise-related." The Veteran's post-service treatment records show numerous complaints of bilateral knee pain, with the right greater than the left. Similarly, treatment notes reflect the Veteran's description of his pain as "'burning' across knee cap. Pain with inclines. No swelling/locking/swelling. Uses knee brace but hold and not as supportive." During an Orthoepic Surgery Consultation in December 2015, the Veteran reported "burning pain in the anterior with the right worse than the left, that [was] exacerbated by prolonged sitting or prolonged standing, kneeling or squatting, with right knee 'popping' and 'giving out.'" In the March 2017 DRO Conference summary, the Veteran reported that his right knee had been a problem in service and had been worsening since. During his October 2018 hearing, he credibly testified that he was forced to jog and run in boots rather than tennis shoes while in service. Further, while performing his in-service job as a mechanic, he often hit his knees on the equipment, in addition to moving around a lot, bending, and getting up, getting down, getting up, and lifted heavy equipment, including small transmissions and small engines, all of which weighed about 90 pounds. The Veteran also testified that in order to fix the vehicles, he got on the ground and underneath the vehicles, which caused wear and tear on his back, knees, and ankles, which continued after service, "hurt[ing] here and there." The Veteran was afforded VA examinations in January 2020. Regarding the bilateral knees, the examiner found that it was not otherwise related to his active service or had or had arthritis diagnosed within one year of separation. He explained that it was less likely than not that the Veteran had a right or left knee condition that was related to service because although 3 July 1984 there was reported pain in knees [and] a burning sensation inside with no objective findings and a diagnosis at the time of retro patellofemoral pain syndrome mild--this is not a condition of a severity likely to result in the chronicity of this condition. There is no further documentation of knee problems until 1999, such that it is not possible to establish a nexus or clinical or pathophysiologic relationship between the knee symptoms in service and those documented in 1999 and subsequently. Regarding the left knee, the examiner additionally explained that "[t]here is no further documentation of L[eft] knee problems until 2001-02 such that it is not possible to establish a nexus or clinical or pathophysiologic relationship between the L[eft] knee symptoms in service and those documented in 2001-2 subsequently." The Board finds this opinion incomplete for the following reasons: First, the examiner relied on the absence of medical records showing "knee problems after service until 1999 for the right knee and 2001 for the left." Secondly, the examiner failed to consider the Veteran's lay statements of continuous bilateral knee pain in violation of Miller v. Wilkie, 32 Vet. App. 249, 257 (2020) (explaining that "an examination is inadequate if the medical professional fails to consider the veteran's own lay reports of symptoms."). When VA undertakes to provide a medical examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 311 (2007). As there are no competent medical opinions of record addressing the etiology of the Veteran's bilateral knee disability, the Board finds that a remand is warranted for a new examination. Accordingly, the matter is REMANDED for the following action: 1. Provide the Veteran's claims file to a qualified clinician so that a VA examination may be provided for his bilateral knee disability. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. STRs dated in July 1984 noting "pain in knees -burning," increased with "deep knee bending activity" and a diagnosis of mild retro patellar pain syndrome. b. April 1985 VA examination noting left knee pain started in service, around 1983. c. May 1991 separation physical, he reported "yes" on his Report of Medical History, to having had swollen and painful joints, and to which the examining physician noted: "exercise-related." d. Numerous post-service treatment records noting complaints of bilateral knee pain, with the right greater than the left. e. March 2015 and December 2015 treatment records noting complaints of "burning pain in the anterior with the right worse than the left, that[was] exacerbated by prolonged sitting or prolonged standing, kneeling or squatting, with right knee 'popping' and 'giving out.'" f. March 2017 DRO Conference summary, noting the Veteran's testimony that his right knee had been a problem in service and had continued since. g. October 2018 Board testimony, wherein he credibly testified that while performing his in-service job as a mechanic, he often hit his knees on the equipment and lifted heavy equipment. The clinician is asked to opine as to the following: a. Whether the Veteran's right knee disability is at least as likely as not (50 percent or greater probability) had its onset in service or related to any incident therein, including hitting his knees on the equipment; or if arthritis is diagnosed, whether it was withing one year of service. b. Whether the Veteran's left knee disability is at least as likely as not (50 percent or greater probability) had its onset in service or related to any incident therein, including hitting his knees on the equipment. For this remand only, and for the limited purpose of providing a medical opinion, the clinician should assume that the lay statements are true. If there is a medical reason to doubt the veracity, the clinician should explain why the Veteran's recollection is inconsistent with the principles of medical science and/or the evidence in this case. The clinician is advised that an opinion based solely on lack of documentation in service is not sufficient. The Veteran's assertion of continuity of symptoms since service must be addressed in the opinion. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such a conclusion. 2. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.