Citation Nr: 21064793 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 20-17 993 DATE: October 21, 2021 REMANDED Entitlement to service connection for right knee pain (osteoarthritis) is remanded. Entitlement to service connection for left knee pain (s/p total knee replacement) is remanded. REASONS FOR REMAND The Veteran had active service from June 1961 to December 1961. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In February 2021, the Board remanded this matter for further development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). 1. Entitlement to service connection for right knee pain (osteoarthritis) is remanded. 2. Entitlement to service connection for left knee pain (s/p total knee replacement) is remanded. The Veteran contends that his bilateral knee pain is related to his military service. The Veteran's service treatment records are silent for any complaints, diagnoses, or treatment related to the Veteran's bilateral knee condition. The Veteran's spouse submitted a statement on behalf of the Veteran indicating that the Veteran did not have any knee problems prior to service, and she dated the Veteran prior to his enlistment. She indicated that the Veteran would participate in weekly drills and would complain that his knees were hurting, but he did not seek medical care. She also indicated that the Veteran's knees continued to bother him, but it was not until later in life that he received treatment. In December 2020, the Veteran testified at a Board hearing regarding his knees. The Veteran testified that he injured his knees by kneeling to shoot on the gun range during basic training and AIT training. The Veteran explained that they had to qualify on all the particular weapons that they were using or that they would be using at that time. He also testified that he injured his knees by carrying a full backpack while running. He said that he did not seek treatment for his knees because he did not want to be labeled as he was "trying to get out of something." The Veteran further testified that when he separated from service, he had difficulty walking. In the December 2020 Board hearing, the Veteran's spouse testified that she knew the Veteran since the eighth grade. She testified that the Veteran treated his knee with a lot of "Ben Gay" to ease the pain. His knees impacted his ability to go up and down stairs. She also testified that the Veteran did not want to seek treatment because he didn't want to be tagged as a complainer. In June 2021, the Veteran was afforded a VA examination for his knees. The examiner noted that in 2000, the Veteran was diagnosed with knee joint osteoarthritis in both knees. In 2015 the Veteran had a knee fracture including patellar fracture. In 2015 the Veteran had a total left knee replacement. The Veteran reported having knee problems during active duty while kneeling to shoot weapons and marching and running with a heavy backpack on his back. He did not report his knee pain because he did not want to be labeled as a complainer. He treated his knee condition with Bengay. The Veteran reported that his knee condition has worsened, and he has severe pain and stiffness, and his knees give out. He wears braces as assistive devices. The examiner stated that the Veteran has rheumatoid arthritis in the hands, ankles, and wrist, but this condition does not affect the knees. The examiner opined that the Veteran's claimed condition was at least as likely as not (50 percent or greater probability) to have been incurred in or caused by the claimed in-service injury, event or illness. As to the rationale, the examiner explained that, The veteran claims that he injured his knees while kneeling during rifle practice and while running with a heavy backpack. These activities are sufficient to damage the cartilaginous surface of his knees causing ongoing pain and difficulty walking. His pain continued after his years of service and required use of Bengay cream to control pain. In August 2021, VA secured an addendum opinion. The examiner opined that the Veteran's claimed condition was less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. As to the rationale the examiner explained that the Veteran was employed as a constable for four towns, and he did not seek care for his knee pain until 2000. The examiner also noted that the Veteran's medical history includes a diagnosis of rheumatoid arthritis onset age 31, and a history of obesity. The Board notes that the examiner indicated in the June 2021 VA examination that the Veteran's rheumatoid arthritis did not impact his knees. The addendum opinion appears to rely upon the absence of objective evidence, and the possibility of obesity impacting the Veteran's knee condition. The Board finds the June 2021 VA examination/opinion and August 2021 addendum opinion to be contradictory, and thus an addendum opinion is required to clarify whether the Veteran's knee conditions are related to his active service. Specifically, the examiner appeared to indicate that the Veteran's knee disabilities were related to service, but when asked to provide a rationale she changed her opinion without offering an adequate explanation. The matter is REMANDED for the following action: 1. If possible, return the Veteran's complete record, to include a copy of this remand, and the claims folder to the examiner who reviewed the file and provided the June 2021 and August 2021 medical opinions hereinafter "examiner," for an addendum opinion. If it is not possible to obtain clarification from the examiner, then forward the Veteran's claim file to another appropriate medical professional who has the requisite experience to render the requested medical opinions. No examination of the Veteran is necessary unless the examiner deems otherwise. 2. The examiner is asked to clarify whether it is as least as likely as not (50 percent or greater probability) that the disability had its onset during the Veteran's active service or is otherwise causally or etiologically related to the Veteran's active service. The examiner must note and address that the Veteran and his spouse stated that: (a.) During service, he injured his knees by kneeling to shoot. (b.) He injured his knees by carrying a full backpack while running. (c.) He did not acquire medical treatment because he did not want to be labeled that he was trying to get out of something. (d.) After separating from active service, he had difficulty walking, and has had pain since service. (e.) His spouse stated that he did not have any knee problems prior to service. (f.) His spouse testified that he would participate in weekly drills and would complain that his knees were hurting, but he did not seek medical care. (g.) His spouse testified that the Veteran treated his knee conditions with a lot of "Bengay" to ease the pain. 3. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. 4. The AOJ must review this opinion to ensure it is adequate and complies with the Board's specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 5. After completing the above, and conducting any further development deemed necessary, readjudicate the Veteran's claims for service connection. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.