Citation Nr: 21064863 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 14-03 806 DATE: October 21, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served in the National Guard Reserves and had active duty for training (ACDUTRA) from March 1979 to June 1979 and subsequent Reserves service to December 1994. This matter comes to the Board of Veterans' Affairs (Board) on appeal from a December 2012 decision by the Regional Office (RO) in Columbia, South Carolina. The Veteran testified at a videoconference hearing in front of the undersigned Veterans Law Judge (VLJ) in March 2015. A transcript of the hearing is associated with the claims file. In August 2020, the Board denied the Veteran's claim for service connection right knee disability. The Veteran appealed the August 2020 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In June 2021, the Court granted a Joint Motion for Remand (JMR) filed by the parties. In doing so, the August 2020 Board decision was vacated and remanded for further consideration. Entitlement to service connection for a right knee disability is remanded. In the June 2021 JMR, the parties agreed that the Board erred by not ensuring that VA had complied with its duty to assist the Veteran in the development of his claim. Specifically, the Board's June 2015 BVA Remand, previously remanded this case for a new medical examination, and for the examiner to "consider the Veteran's lay statements, including his assertion of an injury during his two-week training period from 1992 which he contends aggravated his condition." Yet, the September 2015 examiner did not address Veteran's report of an injury during the two-week training period in 1992. In the September 2015 VA examination, the examiner opined that it was less likely than not that Veteran's condition was incurred in or caused by the claimed in-service injury, event or illness, and provided the rationale that "the records clearly indicate out-of-service aggravation of the knee conditions," and that "he reportedly had increased knee pain after some National Guard training weekends, he also had increased knee symptoms in the course of his everyday activities, such as working on his roof and squatting at his job." The examiner cited to an April 1992 Report of Medical History. Upon review, there is no substantive discussion of Veteran's lay reports, consistent with the Board's remand instructions. The etiology of any right knee condition remains unclear. The JMR thus instructs that a remand for a new medical opinion that adequately addresses the issue of aggravation is necessary. Therefore, remand is warranted for a new medical opinion that is adequate and substantially complies with the Board's previous remand instructions. See 38 U.S.C. § 5103A(d)(1); see Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's right knee disability. The claims file and a copy of this Remand must be provided to the examiner and the examiner must indicate review of the claims file in the examination report. The RO must inform the examiner of each period of ACDUTRA/INACDUTRA service. The examiner should provide the following: (a) Is there clear and unmistakable evidence that right knee condition a pre-existed the Veteran's period of ACDUTRA/INACDUTRA? (b) If so, is it at least as likely as not (50 percent or more probability) that the right knee condition underwent a permanent increase in severity during or as a result of any period of ACDUTRA/INACDUTRA? The examiner should state whether any permanent increase in the underlying pathology was due to normal progression of the disorder. (c) If not, is it at least as likely as not that this right knee condition was incurred during or results from (is proximately due to) the Veteran's periods of ACDUTRA/INACDUTRA? (d) Is it at least as likely as not that a right knee condition was aggravated (permanently increased in severity beyond the natural progress of the disorder) during a specific period of ACDUTRA/INACDUTRA? The examiner must consider the Veteran's lay statements, including his assertion of an injury during his two-week training period from 1992 which he contends aggravated his condition. The physician must give a complete rationale for all conclusions made. The rationale should be based on examination findings, historical records, and medical principles. If any requested opinion cannot be provided without resort to pure speculation, the examiner should state why. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Le, Tai D. 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.