Citation Nr: 21064126 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 14-26 855 DATE: October 19, 2021 REMANDED Service connection for a left knee condition. Service connection for a right knee condition. Service connection for right leg shin splints. Service connection for left leg shin splints. REASONS FOR REMAND The Veteran had active service from June 1991 to June 2011. The case is on appeal from a January 2012 rating decision. In August 2017, the Veteran testified at a Board hearing. Most recently, in a March 2021 decision, the Board denied higher ratings for a lumbar spine condition and hypertension. At that time, the Board also remanded the knee and shin splints claims for additional development. 1. Service connection for a left knee condition. 2. Service connection for a right knee condition. 3. Service connection for right leg shin splints. 4. Service connection for left leg shin splints. The Board's last remand explained that a prior VA examination opinion was incomplete as it did not address whether the Veteran had a condition, even if not diagnosed, in either knee or shins consistent with Saunders v. Wilkie, 886 F.3d 1356, 1362 (Fed. Cir. 2018). The Board noted that the prior VA opinion also did not address whether the Veteran, as a Persian Gulf veteran for purposes of 38 C.F.R. § 3.317, had signs or symptoms of undiagnosed illness and medically unexplained chronic multisymptom illness (MUCMI), manifested by joint pain. Upon remand, an examination and opinion was given in July 2021. The VA examiner diagnosed knee strain and shin splints. The VA examiner concluded that these conditions were less likely than not related to service or secondary to a service-connected disability. (For sake of clarity, the Board observes that the examiner actually wrote multiple reports; the Board considers them a single combined opinion, so will address them so.) By way of rationale, the examiner stated that the claims file was silent for treatment of knee conditions and shin splints. The examiner found the Veteran's examination that day to be positive for shin splints and bilateral knee strains, but the examiner found no other records to support a chronicity of care or that a knee condition or shin splints condition began during service. The examiner understood all X-rays in the file to be related to VA examinations. The examiner stated that these were conditions with a clear and specific pathology and diagnosis. The examiner reiterated that there was no evidence that there were complaints or treatment for either condition during service nor was there evidence that the condition was aggravated or caused by any other service connected condition. With specific regard to shin splints, the examiner also concluded that there is no evidence that the Veteran's symptoms were related to any exposure from the Gulf War, and again stated that there was no evidence of treatment or complaints during the Veteran's service. The Board finds that this opinion is inadequate as it was based on an inaccurate history. The examiner repeatedly and materially relied on the conclusion that there was no evidence of treatment for knee conditions or shin splints in service or after service. Yet, the service treatment records (STRs) show ongoing and consistent treatment beginning from April 1996 for knee complaints. In fact, he was first diagnosed in June 1996 with patella tendonitis of the left knee. In October 1996, he was diagnosed with patellofemoral syndrome. In January 1997, he reported a past history of symptoms diagnosed as chronic knee pain, probably osteoarthritis pain, possibly chronic medial meniscus tear bilateral. In March 1997, a diagnosis of patellofemoral pain syndrome and patella tendonitis was again made. X-rays in March 1997 were normal, but he underwent an Orthopedic evaluation in April 1997 for complaints of bilateral knee pain with gradual onset over the prior two years, which was assessed as unresolved knee pain. He continued to be seen in April 1997 and May 1997. In February 2010, he complained of right hip pain diagnosed as iliotibial band syndrome. On follow-up in March 2010, this diagnosis was noted to involve pain in the right hip and down the right leg. In December 2010, he was seen for a waiver for a Physical Readiness Test (PRT) due to complaints including (back and) knee pain although bearable due to carrying a weapon and standing for a long time. At a retirement physical examination in March 2011, a diagnosis of iliotibial band friction syndrome was noted. Within one year of service, he was seen for a private (non-VA) orthopedic consultation with complaints of left knee pain for several years, which he had originally hurt in service. An MRI was performed, which was reported in May 2012 to have shown small intramensical tear of medial meniscus, otherwise normal. More recently, at the July 2021, the Veteran reported shin splints since the 1990s. In short, contrary to the VA examiner's statement, the STRs and post-service medical records contain numerous instances of treatment during and after service. The July 2021 VA examiner found no records, but clearly based this on an incomplete review of the file. Moreover, to the extent the Veteran himself reported symptoms since service, the VA examiner appears to have demanded contemporaneous, documentary evidence of symptoms. The VA examiner's failure to consider the Veteran's testimony, which is relevant evidence that he first noticed symptoms proximate in time to service, when formulating the opinion renders that opinion inadequate. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016) As this July 2021 VA opinion is not adequate, another remand is warranted. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician to determine the nature and etiology of the knee and shin splint conditions. The examiner is asked to address each of the following: (a.) Whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease, including the symptoms documented in service. (b.) Whether the current condition clearly and unmistakably preexisted the Veteran's service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. (By "clear and unmistakable," the examiner should understand the term to mean that no qualified medical profession reviewing the same information could reasonably come to a different conclusion.) (c.) Whether the current condition is at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated beyond its natural progression by a different medical condition. If so, the examiner is asked to identify the primary medical condition. In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms during and since service. The examiner is asked to explain why his statements make it more or less likely that a current condition is related to service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.