Citation Nr: 21065506 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-29 233 DATE: October 26, 2021 REMAND Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1981 to June 1985. This appeal is before the Board of Veterans' Appeals (Board) from a November 2013 Rating Decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In an August 2020 Decision, the Board denied these claims. The Veteran appealed those determinations to the United States Court of Appeals for Veterans Claims (CAVC). The Veteran and the Office of the General Counsel for VA (collectively referred to as "the Parties") resolved that appeal by way of a June 1, 2021, Joint Motion for Partial Remand (JMPR). The Parties agreed that the Board erred in relying on an inadequate November 2013 VA etiological opinion, observing " . . . that the November 2013 VA examination is inadequate because it lacks a well-reasoned rationale. See Nieves-Rodriguez, 22 Vet. App. at 301. Specifically, the examiner's rationale is based on 'multiple other aging/occupational/daily activity factors in the intervening years' but never explains how this pertains to Appellant specifically." The Parties agree that a new examination and opinion are required. By a June 14, 2021, Order, the CAVC adopted the Parties' JMPR. Thus, the Board's August 2020 determination with respect to these issues has been vacated and again is before the Board for appellate consideration. There is no other action for the Board to take other than to remand this appeal to the agency of original jurisdiction (AOJ) to secure a new examination and opinion in compliance with the JMPR. Thus, these matters are remanded. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Schedule the Veteran for an examination for his bilateral knees. The examiner shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's bilateral knee disabilities occurred in, or is the result of, his period of active duty service? Note: In formulating this opinion, if the examiner's shall rationale is based on 'multiple other aging/occupational/daily activity factors in the intervening years, it must be explained how this pertains to Appellant specifically. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Conduct any other development deemed necessary and then readjudicate the Veteran's claims. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or the CAVC must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.