Citation Nr: 21065258 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-26 671 DATE: October 25, 2021 REMANDED Entitlement to service connection for right knee gout is remanded. Entitlement to service connection for left knee gout is remanded. Entitlement to service connection for right knee arthritis is remanded. Entitlement to service connection for left knee arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from February 1972 to February 1976, and then in the United States Army from April 1976 until his retirement in April 1992. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a video virtual hearing from Georgia before the undersigned Veterans Law Judge sitting in the vicinity of the Central Office in Washington, D.C. A transcript of the hearing is available in the record. These matters have previously come before the Board. In June 2019, the Board remanded the Veteran's claims for arthritis and gout of his bilateral knees for thorough medical examination to be conducted by VA. In August 2019, the Veteran was afforded a VA examination, and the examiner provided opinions regarding the etiology of his conditions. Thus, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268, 271 (1998). It is important to note from the outset, that service medical treatment records are unavailable for 16 years of the Veteran's 20-year military service. The claim file contains medical documentation from the Veteran's first enlistment in the Air Force. However, records from April 1976 to April 1992, which constitute the entirety of the Veteran's active service in the Army, have been deemed unavailable for review. See August 2009 VA Memorandum. VA therefore has a heightened duty to assist the Veteran in developing his claims. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). 1. Entitlement to service connection for right knee gout is remanded. 2. Entitlement to service connection for left knee gout is remanded. 3. Entitlement to service connection for right knee arthritis is remanded. 4. Entitlement to service connection for left knee arthritis is remanded. The VA examinations and opinions of record are inadequate, and further development is necessary before the Board may reach a decision. Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The August 2019 VA examiner relied entirely upon the absence of medical documentation in the Veteran's claim file in rendering her opinions. The absence of evidence cannot be taken as substantive negative evidence without a proper foundation to demonstrate that such silence has a tendency to prove or disprove a relevant fact. Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). The Veteran's representative also contended that the 2019 VA medical opinions were inadequate at the 2021 Board hearing. Given that 16 years of service medical records are missing from the claim file, and that VA thus holds a heightened duty to assist the Veteran, the Board finds that additional examination is warranted for the Veteran's bilateral knee claims. These matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his bilateral knee gout and arthritis conditions. The examiner is advised that VA has been unable to locate 16 years of medical records from the Veteran's 20-year military career. It is of paramount importance that the examiner does not rely solely upon the absence of documentation in the record for any medical opinions rendered. The examiner should, to the best of his or her ability, render opinions based upon the available medical evidence, the Veteran's lay statements, and any other appropriate evidence. The examiner should indicate review of the Veteran's complete claim file, and should address the following: (a.) Elicit from the Veteran and document a history of his bilateral knee symptoms both during his military service and after his discharge from service. At a minimum, the examiner should document all reported knee injuries and other ailments during service which are not shown in the medical record, and the reported onset of chronic pain. (b.) Provide an opinion for whether it is at least as likely as not (probability of about 50 percent or greater) that the Veteran's right knee arthritis was incurred in, caused by, or is otherwise related to his military service. (c.) Provide an opinion for whether it is at least as likely as not (probability of about 50 percent or greater) that the Veteran's left knee arthritis was incurred in, caused by, or is otherwise related to his military service. (d.) Provide an opinion for whether it is at least as likely as not (probability of about 50 percent or greater) that the Veteran's right knee gout was incurred in, caused by, or is otherwise related to his military service. (e.) Provide an opinion for whether it is at least as likely as not (probability of about 50 percent or greater) that the Veteran's left knee gout was incurred in, caused by, or is otherwise related to his military service. (f.) If the examiner finds that any identified condition for either knee is related to service, the examiner should additionally offer an opinion on whether it is at least as likely as not (probability of about 50 percent or greater) that any opposing knee condition was (1) caused or (2) aggravated by such service-connected condition. The examiner is asked to provide a comprehensive rationale for any opinion offered. Any negative opinion regarding the relationship of any current diagnosis to service cannot be based solely on the lack of evidence of a disability in the service treatment records. If the examiner is unable to provide an opinion without resorting to speculation, then state whether the inability is due to the limits of the examiner's own knowledge or training, the limits of medical knowledge in general (no one could respond given medical science and the known facts), or the record (additional facts are required). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.