Citation Nr: 21066866 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-41 308 DATE: November 2, 2021 REMANDED Entitlement to service connection for left knee arthritis (claimed as left knee injury) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from November 1977 to November 1981 and from February 1982 to February 1998. The Board observes that the Veteran submitted additional medical evidence after the AOJ's adjudication in the August 2016 Statement of the Case (SOC). Additionally, medical evidence was submitted by the AOJ. Regarding the evidence submitted by the Veteran, an automatic waiver of AOJ consideration applies because the Veteran's substantive appeal was received after February 2, 2013, and the Veteran has not requested the Board to remand the case for AOJ consideration of the evidence. See 38 U.S.C. § 7105 (2012). As for the evidence submitted by the AOJ after the most recent August 2016 SOC, much of the record development was regarding claims not currently before the Board, and VA medical treatment records associated with the file were not pertinent to the claim for service connection on appeal. Further, there is no indication that the Veteran would be prejudiced by proceeding with a decision at this time, as the Board finds that a remand is warranted for the reasons discussed below. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Entitlement to service connection for left knee arthritis is remanded. The Board finds that the Veteran's service connection claim must be remanded, as the January 2015 VA examination is inadequate for adjudicative purposes. The January 2015 examiner opined that it is less likely than not the Veteran's left knee condition was incurred in or caused by left knee pain during service. The examiner reasoned that there was a lack of "objective evidence of continuity of symptomatology or the diagnosis of a chronic left knee condition during active duty or within close proximity to separation." The examiner also noted that the Veteran did not seek treatment for his left knee condition until five years after service. However, review of the Veteran's medical records indicate that the Veteran sought treatment for his left knee pain in December 1999, January 2000, March 2000, and August 2001. The rationale provided by the VA examiner is based on inaccurate facts and therefore is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Accordingly, remand for a new examination and etiological opinion is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature and etiology of his left knee disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The examiner should opine whether it is at least as likely as not (50 percent or greater possibility) the Veteran's left knee disability had its onset in service or is etiologically related to service. The examiner should specifically explain why or why not that the lay and medical evidence demonstrates a chronic left knee disability since service or, alternatively, why or why not any current disability including arthritis and/or meniscal injury did not result from the mechanisms of injury during service. In doing so, the examiner should consider the following: Reenlistment Report of Medical History, marking "yes" for "trick" or locked knee March or May 1982 service treatment record (STR), diagnosing left knee muscle strain; August and September 1997 STRs, reporting left knee pain December 1999 medical records, reporting left knee pain; January 2000 medical record, reporting soreness in left knee; March 2000 medical record, reporting left knee pain; August 2001 medical records, reporting left knee pain and his left knee "goes out occasionally:" February 2008 medical records, reporting left knee pain June 2008 medical record, reporting bilateral knee pain; and December 2019 private medical record, diagnosing left knee tear of medial meniscus. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. 2. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case, and allow an appropriate time for response. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.