Citation Nr: 21064172 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-30 162 DATE: October 19, 2021 REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served in the United States Army from January 1992 to July 2001. This matter comes before the Board of Veterans' Appeal from a March 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. A hearing transcript has been associated with the claims file. Following the hearing, additional evidence to include an August 2021 opinion from Dr. C.D. and private treatment records, were associated with the record. 1. Entitlement to service connection for right knee disorder is remanded. The Veteran contends that his right knee disorder was a result of injuries he incurred while in service. During the August 2021 Board hearing, the Veteran testified that his right knee disorder was the result of his physical training and activity during service and that his current condition is a continuation of what he experienced during service. Service treatment records reflect complaints of a painful lump in the right knee and pain below the kneecap as well as an impression of an old avulsion type injury in March 1998. The Veteran's reported of knee tenderness for a few years in a March 2001 Report of Medical History (RMH). A March 2001 separation examination found the Veteran's lower extremities to be normal. The Veteran was afforded a VA examination for his knees in March 2017. The examiner opined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explains that the Veteran's service treatment records document one compliant of right knee pain in December 1998 and noted bilateral knee trouble on his separation examination and that the next right knee compliant was in October 2014 after service, which was related to an acute traumatic injury. The examiner further noted that the orthopedic notes of these conditions make no mention of a prolonged course of pain since service, with both notes indicating an acute injury contributing to the cause of the conditions at hand. Thereby, the examiner concluding that there is insufficient evidence to link the Veteran's current knee conditions to a solitary in-service complaint. However, the Board concludes that the March 2017 VA examination is inadequate for adjudicative purposes. It appears that the examiner based her opinion entirely on the absence of documented knee injuries during service. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran's reports of in-service injury and instead relied on the absence of evidence in a Veteran's service treatment records to provide a negative opinion). In contrast, an August 2021 opinion from Dr. C.S., a private physician, indicates that he was able to locate several notes regarding the Veteran's knee in his service treatment records. The provider notes that the Veteran began experiencing knee pain and tenderness in September 1998 and that he continued to experience symptoms for several years during service. The provider noted that he was able to locate several notes regarding is knee in the service treatment records and that the Veteran's current knee disorder is a continuation of the initial issues that began during his service. However, the Board notes that the September 1998 notation referenced by the provider reflects complaints related to the left knee rather than the right knee. Therefore, this opinion is not sufficient to award service connection for the right knee. In light of the foregoing, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of the claimed right knee disorder. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for a left knee disorder is remanded. 3. Entitlement to service connection for a lumbar spine disorder is remanded. In January 2018, the Veteran's representative submitted a timely notice of disagreement for the Veteran's claimed right knee disorder, left knee disorder and lumbar spine disorder. However, the pages uploaded separately in the Veteran's claims file. The RO issued an April 2018 statement of case (SOC) that only addressed the Veteran's claim to service connection for his right knee disorder. The SOC did not address on the other two claims. Therefore, the Board concludes that because the Veteran has never been issued a SOC responding to service connection for a left knee disorder and a lumbar spine strain, the Board is precluded from issuing final determinations therein. See Manlincon v. West, 12 Vet. App. 238 (1999). As a result, those issues also require remand. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Issue the Veteran a Statement of the Case responding to the claim for service connection for a left knee disorder and service connection for a lumbar spine disorder. Advise the Veteran of the time period in which to perfect his appeal. If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate. 3. Following the receipt of outstanding records, schedule the Veteran with an appropriate clinician for a VA examination to determine the etiology of his claimed right knee disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for physical examination is left to the discretion of the examiner. The need for further in-person examination is left to the discretion of the examiner Thereafter, the examiner is asked to furnish an opinion with respect to the following question: Is at least as likely as not (50 percent or greater probability) that the Veteran's right knee disorder had its onset during any period of service, include physical activity and training during service? The examiner should specifically address the significance, if any, of the Veteran's complaints of a painful lump in the right knee and pain below the kneecap as well as an impression of an old avulsion type injury in March 1998, The examiner should also specifically address the Veteran's contention that his current right knee disorder is a continuation of the knee symptoms he experienced during service. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. (Continued on the next page) A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.