Citation Nr: 21065205 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-27 029 DATE: October 25, 2021 REMANDED Entitlement to service connection for a left knee disability, to include arthritis, is remanded. Entitlement to a temporary total rating based on convalescence following left total knee arthroplasty (TKA) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1968 to January 1970. He had additional service in the United States Army Reserve, Army National Guard of the United States, and Army National Guard of Oklahoma from January 1970 to September 1997, to include periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The record was held open for a 30-day period following the hearing to allow for the submission of supporting evidence. Thereafter, no additional evidence was received by VA. In an August 2020 decision, the Board granted the petition to reopen the claim for service connection for a left knee disability and remanded the matter for additional development. The claim for entitlement to a temporary total rating based on convalescence following left TKA was also remanded as an intertwined issue. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand 1. Entitlement to service connection for a left knee disability, to include arthritis, is remanded. The Veteran contends that his left knee disability is related to his active service. The record shows the Veteran underwent surgery for a left total knee replacement in October 2015 associated with a diagnosis of osteoarthritis of the left knee. See CAPRI (January 2016). To ensure that VA has met its duty to assist, remand is necessary to afford the Veteran a VA examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran testified that as an infantryman in Vietnam, he had to run, walk, and march while carrying rucksack which caused constant knee pain. See Hearing Transcript at 6-7 (July 2019). The Veteran's service personnel records show service in the Republic of Vietnam from May 1969 to January 1970. His military occupational specialty (MOS) was infantryman and he was awarded the Combat Infantryman Badge and Air Medal. A January 2012 VA treatment record shows the Veteran listed knee pain as one of his medical issues during his service in Vietnam. See CAPRI (January 2016). The Veteran also testified that his left knee symptoms worsened as a result of having to run during monthly drill weekends as a Reservist and on his own time in preparation for drill weekends. He testified that as a training officer and executive officer at the Drill Sergeant School, he had to run alongside the drill instructors. See Hearing Transcript at 9-10 (July 2019). In this regard, the Veteran's service personnel records reflect that in December 1994, he took the position of Director of the Drill Sergeant School 95th Division (IT). In addition, Officer Evaluation Reports for the rating period from May 1992 to April 1993, note that the Veteran developed and implemented the Bold Ironman Training Program and improved skills for drill sergeants. The Veteran also reported that he injured his knees as a result of lifting and carrying heavy footlockers by himself from the back of a two and half ton truck to the command tent during field exercises. See Hearing Transcript at 5 (July 2019). He indicated that although there was no line of duty determinations with respect to his left knee symptoms, he suffered a hernia caused by a similar lifting injury that was documented in his service records. See Hearing Transcript at 6 & 15 (July 2019). Here, the Veteran's service treatment records (STRs) reflect that a line of duty determination was issued following an injury during active duty on July 14, 1987. The Statement of Medical Examination and Duty Status show the Veteran was diagnosed with a hernia resulting from unloading equipment and supplies in preparation for annual training, without assistance. This included lifting and unloading a heavy foot locker containing operations materials. As VA has not obtained a medical opinion on whether the Veteran's current left knee disability had its onset in active service or is otherwise related to active service, the Board finds that a VA examination is necessary to adjudicate the matter. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the facts above and given the low bar set to trigger VA's duty to obtain a VA examination, the Board finds that the Veteran's lay statements, coupled with the circumstances of his active service as an infantryman, and duties as a Reservist, are enough to meet that low bar. Id. Therefore, the Veteran should be afforded an opportunity to present for a VA examination to determine the nature and etiology of his left knee condition, and whether any such condition is related to active duty service. As noted above, in August 2020, the Board remanded the claim. Specifically, the agency of original jurisdiction (AOJ) was instructed to verify the Veteran's active and inactive periods of service and to request his complete service personnel records. However, it appears the AOJ made no attempt to verify the Veteran's service. Moreover, it is noted that although the complete service personnel records were associated with the claims file, the accompanying Chronological Statement of Retirement Points contains insufficient information regarding the specific dates of the Veteran's ACDUTRA and INACDUTRA during his service in the Army Reserve and Army National Guard. Accordingly, the Board finds that there has not been substantial compliance with its prior remand, and therefore further remand is required to verify the Veteran's periods of ACDUTRA and INACDUTRA and any service in the Active Guard Reserve (AGR). Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to a temporary total rating for left TKA is remanded. A decision on the remanded issue of entitlement to service connection for a left knee disability could significantly impact a decision on the issue of entitlement to a temporary total rating for left knee total knee replacement surgery. Therefore, the Board must defer consideration of that claim at this time. See Harris v. Derwinski,1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Obtain all available VA treatment records dated from 2000 to April 2007. 2. Request that the National Personnel Records Center (NPRC), the Defense Finance and Accounting Service (DFAS) and/or any other appropriate agency verify all the Veteran's periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Army Reserve and Army National Guard, to include the Army National Guard of Oklahoma and any service in the Active Guard Reserve (AGR). All attempts to obtain this data, and any responses received, should be documented in the claims file. It is noted that Reserve retirement point sheets are not adequate for this purpose. Rather, the specific dates of the Veteran's ACDUTRA, INACDUTRA, and AGR service are required and should be associated with the claims file. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his left knee disability. The claims file, including a complete copy of this REMAND, should be made available to the clinician and reviewed. The medical opinion should, at a minimum, reflect consideration of (i) the documented history; (ii) the lay contentions; and (iii) medical evidence of record to include evidence that is favorable and unfavorable. The clinician must address the following: (a.) Based on review of the record and interview with the Veteran, detail his reported left knee symptoms during all verified periods of active service, including the nature, onset, progression and severity of his reported symptoms. If any medical history provided by the Veteran as to onset, progression, and severity of symptoms is rejected, then a full explanation for such is required. The examiner is not required to accept the Veteran's theory that his left knee symptoms first manifested during active duty service if this is incongruous with the record; however, the examiner is required to fully explain why he or she disagrees with the Veteran's theory of onset/causation. (b.) Whether it is at least as likely as not any left knee disability, to include arthritis, (1) began during a period of active duty service, (i.e. April 1968 to January 1970), ACDUTRA, or AGR; or (2) manifested within one year after discharge from active service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease, including but not limited to the Veteran's report of the cumulative impact of the physical activities associated with his MOS including carrying rucksacks, constantly running, and lifting and carrying heavy footlockers during annual training. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings. NOTE (2): The medical opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). (Continued on the next page) 4. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.