Citation Nr: 21064833 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 14-21 762 DATE: October 21, 2021 REMANDED Entitlement to service connection for a disability of the knees is remanded. Entitlement to service connection for a disability of the feet is remanded. REASONS FOR REMAND The Veteran had active service from August 2004 to August 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board of Veterans' Appeals (the Board) remanded this case in February 2018. The February 2018 remand directed the Agency of Original Jurisdiction (AOJ) to undertake efforts to obtain the Veteran's service treatment records for his time in the Army Reserves. Pursuant to the remand, the AOJ attempted to obtain the Veteran's Army Reserves records; however, no records were found. The AOJ sent the Veteran a letter in May 2019 informing him of the unsuccessful efforts to obtain his Army Reserves record and inviting him to submit any such records he may have in his possession. In the June 2020 decision, the Board denied the Veteran's claims for entitlement to service connection for bilateral knees and feet. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the parties filed a Joint Motion for Partial Remand (JMPR) moving for vacatur of the June 2020 decision's denial of entitlement to service connection for bilateral knees and feet. On June 14, 2021, the Court issued an Order granting the JMPR and remanding the matter to the Board for further development and proceedings pursuant to 38 U.S.C. § 7252(a). 1. Entitlement to service connection for a disability of the knees is remanded. 2. Entitlement to service connection for a disability of the feet is remanded. The Veteran contends that his knee and feet disabilities are due to strenuous training and combat endeavors he engaged in during his active service. He has reported that his training involved hiking and running in harsh environments while carrying heavy loads. His combat endeavors included similarly demanding physical activities. He was also involved in an IED blast, which he believes contributed to his conditions. He has stated that his knees and feet began aching while he was on active service. J. M. and M.H., who served with the Veteran, provided statements in August 2016 relevant to the claims for service connection for feet and knee disabilities. In his statement, J. Macias affirms the Veteran's report that their training involved hiking, running, jumping, and other physical activities while carrying heavy loads. He also states that he remembers the Veteran complaining about pain and that the Veteran was ordered to bed rest for a period due to the pain. In his statement, M. Henderson reports that the Veteran was unable to go long distances without pain and had trouble with his knees and joints beyond what is common in the military. Bilateral knees In the JMPR, the parties agreed that the Board failed to assess the lay testimony regarding the Veteran's knee symptoms. In the August 2016 Board hearing, the Veteran testified that his knee conditions started in service due to "wear and tear," especially when out in the field, and that he did not seek treatment because "you're always taught never to really show that sign of weakness, never to go really seek that medical help." In addition, the two separate buddy statements from August 2016 support the Veteran's contention that he suffered knee pain in service, particularly due to the activities while in the infantry. The Board finds that the December 2011 and April 2014 VA examiners relied upon the absence of objective evidence in reaching their conclusions. The April 2014 VA examiner dismissed the Veteran's private doctor's statement because the doctor did not review the Veteran's entire file. However, the examiner did not explain why the Veteran's arthritis was "well advanced over average for knee problems for someone the Veteran's age." The examiner speculates that the Veteran may have a gene that predisposed him to early degenerative arthritis (based on a rheumatologist note), but never confirmed if the Veteran had this gene. Thus, a remand is necessary to secure an addendum opinion that addresses the Veteran's lay testimony, buddy statements, and private doctor's medical opinion. The Board also notes that the Veteran was "disqualified" from service because he could no longer run because of the pain in his knees, while in the reserves. See January 2013 Military Personnel Record. Feet In the JMPR, the parties agreed that the Board failed to establish a proper foundation for drawing inferences against the Veteran due to an absence of documentation. The December 2011 examiner was unable to find an enlistment physical in the file for the Reserves, so found the Veteran sound. The examiner surmised that the Veteran's conditions resolved. However, the Board notes that the separation examination indicated that the Veteran had foot problems but was not addressed by the examiner. Thus, a remand is necessary to secure an addendum opinion that addresses the Veteran's contention that he has had problems with his feet since service, and his separation examination included a notation regarding the Veteran's problems with his feet. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate medical professional who has the requisite experience to render the requested medical opinions. Provide the examiner with the Veteran's complete record, to include a copy of all remands, and the claims folder. No examination of the Veteran is necessary unless the examiner deems otherwise. 2. Is it at least as likely as not (at least a 50 percent possibility) that the Veteran's bilateral knee disability had its onset during or is otherwise etiologically related to the Veteran's active service, to include his time in the Reserves? 3. In addition, the examiner must note and address the following: (a.) The Veteran testified that his knee conditions started in service due to "wear and tear," especially when out in the field, and that he did not seek treatment because "you're always taught never to really show that sign on weakness, never to go really seek that medical help." (b.) The buddy statement that noted that Veteran was unable to go long distances without pain and had trouble with his knees and joints beyond what is common in the military. (c.) The private doctor's assessment that the Veteran's arthritis was well advanced over average for knee problems for someone the Veteran's age. (d.) If the examiner notes a genetic reason for the Veteran's early onset of arthritis, the examiner must provide the specific diagnosis and a thorough explanation. 4. Is it at least as likely as not (at least a 50 percent possibility) that the Veteran's feet disabilities had its onset during or is otherwise etiologically related to the Veteran's active service, to include his time in the Reserves? 5. In addition, the examiner must note and address the following: (a.) The examiner must address that the Veteran's separation examination noted that the Veteran had a foot condition. (b.) The Veteran's buddy statements that their training involved hiking, running, jumping, and other physical activities while carrying heavy loads. The buddy also stated that he remembers the Veteran complaining about pain and that the Veteran was ordered to bed rest for a period due to the pain. 6. 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. 7. Then, the Veteran's claim must be readjudicated. If the benefit sought on appeal is 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.