Citation Nr: 21066147 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 14-34 924A DATE: October 28, 2021 REMANDED Service connection for a left knee condition is remanded. Service connection for a right knee condition is remanded. Service connection for a blood condition is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1974 to May 1976. This matter originally came before the Board of Veterans' Appeals (Board) from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified at a December 2017 Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. This matter was previously remanded by the Board for further development in May 2018. This matter is again before the Board. Service connection for a left knee condition, a right knee condition, and a blood condition are remanded. The Veteran believes that service connection for a left knee condition, a right knee condition, and a blood condition is warranted. See December 2017 Hearing Transcript. The May 2018 Board decision remanded these issues for VA examinations. The examinations were to state whether the right knee condition began in service or was otherwise related to service, whether the left knee condition was related to the right knee condition, and whether the blood condition began in service, began one year following separation from service, or was otherwise related to service. For the knee conditions, among other things, the examination was to consider all the evidence of record, including the Veteran's lay statements. A lack of service treatment records concerning any right knee injuries should not have hindered the examination's ability to make a determination on the competence of the lay testimony since the Board had conceded that a right knee injury did occur. For the blood condition, among other things, the examination was to specifically discuss exposure to contaminated water at Camp Lejeune. See May 2018 BVA Decision. The examinations took place in September 2019. The bilateral knee examination found that the right knee condition was not related to service because there was no evidence of a right knee condition with treatment in the service treatment records or within one year after discharge from service; VA treatment records started in 2006; the Veteran's lay testimony was considered but there was no collaborating supporting evidence; and there was only subjective evidence available. The examiner found that only with mere speculation would a positive opinion be rendered. The bilateral knee examination also found that the left knee condition was not related to the right knee condition because there was no record of a left knee condition or treatment of the left knee during service, no evidence that the left knee condition was related to the right knee condition, VA treatment records started in 2006, no other records were available for review, and lay testimony to the Board was considered but there was no objective support. The blood condition examination found that the blood condition was not related to service because there was no evidence of hyperlipidemia in the service treatment records or within one year after discharge from service and VA treatment records started in 2006. See September 2019 C&P Exam. The Board finds the bilateral knee examination inadequate because it did not substantially comply with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the Board had already conceded that the Veteran injured his right knee during service when the right knee was pinned between two barrels. As such, the lack of service treatment records regarding the injury was not to hinder the examination's ability to make a determination on the competence of the Veteran's lay testimony. Additionally, the examination did not consider/was unable to consider records showing the Veteran's report of left knee problems starting during service and that he hurt his knees in bootcamp and kept thinking that they might get better, but they did not. See February 2013 VA 21-526; March 2013 Statement in Support of Claim. The Board finds the blood condition examination inadequate because it did not substantially comply with the Board's remand instructions. Specifically, among other things, the examination did not even mention exposure to contaminated water at Camp Lejeune. See Stegall, 11 Vet. App. at 268. Therefore, a remand is needed for new VA examinations. The matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any relevant outstanding private and/or VA treatment records, including but not limited to, approved treatment outside of VA. After obtaining any necessary authorizations from the Veteran, make all reasonable attempts to obtain the outstanding records in accordance with 38 C.F.R. § 3.159. 2. Update VA and private treatment records. VA treatment records appear current up to July 2018. 3. The record suggests that the Veteran may have had additional periods of active service since May 1976. Specifically, a medical record from 2009 states that the Veteran was on active duty in 2008. See December 2013 CAPRI. Verify all periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA). If additional periods of service are found, contact all appropriate sources to obtain any outstanding service treatment and personnel records. All efforts to obtain these records should be documented, and if the records cannot be located, a formal finding of unavailability should be associated with the Veteran's claims file. 4. Schedule one or more appropriate VA examinations for the Veteran's right knee, left knee, and blood conditions. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following: (A) Identify all right knee, left knee, and blood related disabilities existing at any point during the appeal period (i.e., since February 2013 for the right and left knee claims and since April 2013 for the blood condition claim) even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability had its onset in or is otherwise related to the Veteran's service, including but not limited to, the conceded right knee injury during service when the right knee was pinned between two barrels and conceded exposure to contaminated water at Camp Lejeune? (Whether a disability is a presumptive condition under 38 C.F.R § 3.309(f) is irrelevant for purposes of this question). (C) For each left knee related identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was caused by or aggravated beyond its natural progression by any or all of the right knee related identified disabilities? (D) For any knee arthritis and for each blood related identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability manifested to a compensable degree within one year following the Veteran's separation from a period of active service? (E) For any knee arthritis and for each blood related identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability was noted during service/within one year following the Veteran's separation from active service, with continuity of symptomatology since? In addition to the other relevant evidence of record, the reviewing examiner is asked to consider and address as appropriate the following information with a caution that this list is not a substitute for a review of the record: Knee conditions (1) Medical records from 2018 showing bilateral knee problems that began many years ago. The Veteran reported being in an accident quite sometime ago. See November 2019 Medical Treatment Record. (2) Medical records from 2018 showing that the right knee arthritis was worse than the left knee arthritis. See September 2019 Medical Treatment Record. (3) A medical record from 2019 showing that during service, the Veteran's right knee was smashed, and he did not get treatment for it. He worked in a warehouse and worked with supplies during service. The Veteran did not start to see a doctor until around age 55. Further information is provided. See September 2019 C&P Exam. (4) Medical records showing that the Veteran was a runner during service and obtained supplies. See July 2018 CAPRI. (5) The Veteran's 2018 report that he hurt his knees during bootcamp. He was a runner during service and had to carry 40-to-50-pound loads, which damaged his knees. He had right knee surgery in 2008 for a torn meniscus and left knee surgery in 2010 for a partial meniscectomy repair. He currently had a right knee medial meniscus tear. See January 2018 Correspondence. (6) The Veteran's report that during service, as a runner, he had to pick up supplies and everything there was. One day, he picked up a barrel of oil which was very heavy. It was in a truck about four feet off the ground. He lost control of the barrel and tried to stop it from rolling. In the process, his right knee was pinned between it and another barrel of oil. Both barrels were filled 55-drums. It hurt his right knee to have it smashed between the barrels. He did not go to the doctor after the incident. The right knee swelled and was painful. Also, during service, the Veteran would travel in a truck to pick up supplies and bring them back to the warehouse and store them in crates. On two occasions, the Veteran was about half a block away from tanks when they fired. The tank fire caused the ground to bounce and the trees to bend back. Other times, the Veteran was further away when the tanks fired. The Veteran did not report problems during service because people do not get hurt when they are Marines. He did not complain about the right knee when he left service but has always had right knee pain. Even though it hurt, he never complained about it. From 1976 until 2012, he was not big on going to the doctor. He just stayed off the right knee and wore knee braces. Since service, there had been no accidents or injuries to the right knee. Further information is provided. See December 2017 Hearing Transcript. (7) Medical records from 2009 showing left knee pain for years. See November 2017 CAPRI. (8) The Veteran's report of being given poisoned water while serving at Camp Lejeune. The Veteran was a runner during service and had to carry loads that were 40 to 50 pounds, which really affected his knees. See September 2014 CAPRI. (9) Service records showing that the Veteran served at Camp Lejeune. See April 2014 Military Personnel Record. (10) Medical research related to contaminated water at Camp Lejeune. See April 2014 Third Party Correspondence. (11) Medical records from 2009 showing DJD of the knees, left knee internal derangement, and a right knee arthroscopy while on active duty one year prior. Medical records from 2010 showed that the left knee had been an ongoing problem for some time and that the Veteran was two weeks status post a left knee arthroscopy with chondroplasty to the medial compartment and partial meniscectomies to both the medial and lateral side. Medical records from 2011 showed DJD of the knees and a possible left knee ACL tear. Medical records from 2013 showed DJD of both knees and arthralgia. See December 2013 CAPRI. (12) The Veteran's 2013 report that he was stationed at Camp Lejeune for about 20 months. See April 2013 Statement in Support of Claim. (13) The Veteran's 2013 report that he hurt his knees during bootcamp and kept thinking that they would get better, but they did not. See March 2013 Statement in Support of Claim. (14) Medical records from 2008 showing knee arthralgia. See March 2013 Web / HTML Documents. (15) The Veteran's 2013 report that right and left knee problems began during service. See February 2013 VA 21-526. (16) Service records showing that the Veteran worked as a general warehouse man and a stock clerk. See April 1977 DD 214. (17) All other relevant lay and medical evidence. Blood condition (1) Medical records from 2018 showing hypercholesterolemia. See November 2019 Medical Treatment Record. (2) A medical record from 2019 showing diagnoses of status post CVA, hyperlipidemia, and peripheral vascular disease. The Veteran did not start to see a doctor until around age 55. Further information is provided. See September 2019 C&P Exam. (3) Medical records from 2018 showing anemia and hyper cholesterol. Further information is provided. See January 2019 Medical Treatment Record. (4) Medical records showing that the Veteran was a runner during service and obtained supplies. See July 2018 CAPRI. (5) The Veteran's 2018 report that he was diagnosed with hyperlipidemia/high cholesterol, which meant there was an increase of fats in the blood. See January 2018 Correspondence. (6) Medical records from 2015 showing dyslipidemia. See September 2017 CAPRI. (7) Medical research related to contaminated water at Camp Lejeune. There was sufficient evidence of TCE causing cardiac effects. Benzene exposure was linked to a risk of cardiovascular disease and hyperlipidemia. Further information is provided. See August 2017 Medical Treatment Record. (8) Medical records from 2017 showing an ischemic stroke/cerebrovascular accident. See June 2017 Medical Treatment Record. (9) Medical records from 2014 showing hypertension. See October 2015 Medical Treatment Record. (10) Medical records from 2015 showing a bunch of heart problems, including angina. See July 2015 Medical Treatment Record. (11) The Veteran's report that his blood condition could have been due to service at Camp Lejeune. See October 2014 Form 9. (12) The Veteran's report of being given poisoned water while serving at Camp Lejeune. See September 2014 CAPRI. (13) Service records showing that the Veteran served at Camp Lejeune. See April 2014 Military Personnel Record. (14) Medical research related to contaminated water at Camp Lejeune. See April 2014 Third Party Correspondence. (15) Medical records from 2013 showing hyperlipidemia and coronary artery disease. See December 2013 CAPRI. (16) The Veteran's 2013 report that he was stationed at Camp Lejeune for about 20 months and had fat in his blood that he could see with his eyes. He was taking medication for the fat in his blood. See April 2013 Statement in Support of Claim. (17) Medical records from 2006 showing mixed hyperlipidemia. Medical records from 2012 showed coronary artery disease. See March 2013 Web / HTML Documents. (18) Service records showing that the Veteran worked as a general warehouse man and a stock clerk. See April 1977 DD 214. (19) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 5. Readjudicate the issues on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, 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.