Citation Nr: 21064881 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-43 736 DATE: October 21, 2021 REMANDED Entitlement to service connection for a right knee condition, to include patellofemoral pain syndrome and meniscal tear, is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower and upper extremities is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1980 to May 1984. He appealed July 2014, July 2015, and March 2018 rating decisions by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for a right knee condition, bilateral upper and lower extremity peripheral neuropathy, and traumatic brain injury residuals, among other issues. A Board of Veterans' Appeals (Board) hearing was held in August 2019. In April 2020, the Board notified the Veteran that a complete transcript of that hearing could not be produced and offered him the opportunity of another hearing. 38 C.F.R. § 20.715. In May 2020, the Veteran stated he did not want a new hearing and requested a decision be made on the evidence of record after a period of 60 days to submit new evidence. Later that month, the Veteran's representative submitted additional evidence, waived his request for any additional time, and requested the Board issue a decision on the evidence of record. In July 2020, the Board remanded these issues for further development. Subsequent to that development, the AOJ found entitlement to service connection for residuals of a traumatic brain injury. See March 2021 rating decision. This is considered a full grant of the benefits sought and that issue is no longer before the Board. The remaining two issues are back before the Board. Right Knee The July 2020 Board remand found the May 2015 VA medical opinion inadequate and remanded for a new VA examination and opinion that considered the lay evidence of record. In February 2021, the Veteran underwent a second VA examination where he was diagnosed with right knee patellofemoral pain syndrome that the VA examiner opined was less likely than not incurred in or related to his time in service. As rationale, the VA examiner stated "direct records of knee pain during service were not found, however previous medical opinion indicates a single episode of knee pain, followed by a denial of chronic knee problems on his exit examination, without any mention of chronic knee problems during service, indicating that the single event was likely an acute incidence and not representative of chronic disease." See February 2021 VA examination report. The May 1983 service treatment record (STR) the VA examiner could not find in the file notes, "complains of recurring painful right knee...contends he injured right knee several years ago lifting weights." This May 1983 STR corroborates the Veteran's lay statement at the May 2015 VA examination that his knee pain began in December 1980 after "leg pressing 300 pounds in the fitness center aboard the U.S.S. Canisteo." The Veteran's STRs confirm he was aboard Canisteo in December 1980. Additionally, the VA examiner stated the Veteran never had a meniscal condition or surgery, when the record reflects the Veteran had surgery for a lateral meniscal tear in October 2017, during the appeal period. See October 2017 Onslow Memorial Hospital records. As the actual evidence of record directly contradicts the February 2021 VA medical opinion, a remand is required. Peripheral Neuropathy In July 2020, the Board remanded this issue to afford the Veteran a VA examination as the July 2020 Board decision granted entitlement to service connection for diabetes and no opinion had been rendered regarding the Veteran's peripheral neuropathy claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). A February 2021 VA examiner noted diabetic neuropathy is "statistically likely as a result of [the Veteran's] long-standing diabetes;" however, the examination had "unusual inconsistencies" and the VA examiner was therefore "unable to establish any objective diagnosis concerning the presence of any neuropathy." This opinion does not provide the Board with the information needed to make a fully informed decision as the examination and record contain evidence of neuropathy, but the VA examiner noted he was "unable to establish...the presence or absence of any sort of neuropathy." See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, it is unclear from the opinion whether the VA examiner considered the competent medical evidence of record supporting a diagnosis of neuropathy. This includes the May 2020 statement from the Veteran's wife, a registered nurse, who noted "relying on my decades of medical experience and personal knowledge, [the Veteran's] bilateral upper/lower extremity diabetic neuropathy is quite severe." Additionally, a March 2016 JCMC record noted the Veteran had peripheral neuropathy of the foot. On remand, a VA examiner must properly examine the Veteran and address the pertinent medical and lay evidence of record. See Miller v. Wilkie, 32 Vet. App. 249, 252 (2020). The matters are REMANDED for the following action: 1. Obtain any relevant updated private and VA treatment records that have not already been obtained and associate the same with the claims file. 2. After the development of #1 above is complete, obtain an opinion from an appropriately qualified clinician, other than the nurse practitioner who provided the February 2021 VA examination report, to determine the nature and etiology of the Veteran's right knee condition, to include patellofemoral pain syndrome and meniscal tear. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After a thorough review of the record to include all in-service and post-service treatment records, the reviewing clinician should answer the following: Is it at least as likely as not (a 50 percent probability or more) the Veteran's right knee condition was incurred in or is otherwise related to his time in service, to include his reported December 1980 injury while lifting weights and in-service treatment for recurring right knee pain? The reviewing clinician is directed to consider the following: (1.) May 1983 service treatment record (STR) noting "complains of recurring painful right knee...contends he injured right knee several years ago lifting weights;" (2.) May 2015 VA examination with Veteran's contention that his right knee pain began in December 1980 after "leg pressing 300 pounds in the fitness center aboard the U.S.S. Canisteo [he] felt pain and tear in [his] right knee;" (3.) STRs confirm the Veteran was aboard Canisteo in December 1980; (4.) July 2017 Carolina Center for Surgery records noting the Veteran attributes his right knee condition to an in-service injury and "since that time, he has had progressive pain and functional disability" and his surgeon noted "there may be a chondral intermittent chronic intra-articular pathology that began in 1983;" (5.) October 2017 Onslow Memorial Hospital records noting surgery for right lateral meniscal tear; (6.) May 2020 statement from A.H., the Veteran's wife and registered nurse noting the Veteran complained of right knee pain since they met in 1986, she observed his pain over the years, and "he told [her] he hurt it in service;" and (7.) May 2020 VA Form 21-4138 Veteran's statement that his knee pain began in service and he sought treatment shortly after service. The examiner should note the Veteran and his wife are competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles should be considered. 3. After the development of #1 above is complete, schedule the Veteran for an examination to determine the nature and etiology of the Veteran's bilateral upper and lower extremity peripheral neuropathy. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The opinion should include a notation that this review took place. After a thorough review of the record, the examiner should answer the following: Is it at least as likely as not (a 50 percent probability or more) the Veteran's bilateral upper and lower extremity peripheral neuropathy, was (1) caused or (2) aggravated by his service-connected diabetes mellitus? The examiner is directed to consider the following: (1.) March 2016 JCMC record noting peripheral neuropathy of the foot; (2.) May 2020 statement from A.H., the Veteran's wife and registered nurse, noting the Veteran's "diabetic neuropathy is quite severe;" (3) April 2003 Carilion Clinic records noting decreased reflexes; and (3) May 2020 VA Form 21-4138 Veteran statement of "severe numbness and some paralysis in my feet and hands...do not have any feeling in my hands." The examiner should note the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles should be considered. 4. After the above has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.