Citation Nr: 21066884 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-08 766 DATE: November 2, 2021 REMANDED Entitlement to service connection for bilateral knee arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1965 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board remanded this matter to the RO for further development. As an initial matter, the Board notes that the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in February 2019. A transcript of that hearing is not available. As such, the Board notified the Veteran in November 2020 that it was unable to produce a complete transcript of the February 2019 Board hearing and, therefore, offered the Veteran another opportunity to testify at an additional Board hearing if he so wished. In December 2020, the Board received correspondence from the Veteran that he wished to appear at another Board hearing. A Board hearing was consequently scheduled in September 2021 and the Veteran was notified in July 2021 of the date and time for his Board hearing. See July 2021 notification letter. Following notification of the scheduled Board hearing and that same month, the Veteran submitted correspondence stating that he wished to accept the findings of the undersigned VLJ. See July 2021 Correspondence. The Board interprets the Veteran's July 2021 Correspondence as a withdrawal of his request for a Board hearing and will proceed with adjudication of this issue. However, because this matter is being remanded for additional development, the Veteran may clarify his intentions with respect to a hearing and request another hearing at any time before the matter again comes before the Board. Entitlement to service connection for bilateral knee arthritis Upon review of the record, the Board finds that a remand is warranted for an addendum VA opinion because the only VA opinion of record, in April 2020, is inadequate to decide the Veteran's claim. In this regard, the April 2020 VA examiner found that it was less likely than not that the Veteran's bilateral knee disability was related to service because any injuries in service were minor, soft tissue injuries which resolved and could not cause any chronic conditions. The VA examiner explained that if any injury in service was responsible for the Veteran's current diagnosed disability, then it would have to be chronic, meaning that it never improved, was constantly painful, and caused discomfort from the time of injury until the present day, which is not the case. This opinion is inadequate because it fails to consider the Veteran's reports of knee pain in and since service, to include the documented medical history in the April 2020 VA knee examination reflecting the Veteran's report of chronic, progressive bilateral knee pain since his twenties. The Board notes that a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Accordingly, remand is necessary so that the Veteran is afforded a new VA opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, the evidence reflects that the Veteran received private treatment for his right knee at various times in the 1970s and 1980s at the Bronx Lebanon Hospital, Interboro Hospital, North Central Bronx Hospital, and Montefiore Hospital. See December 1985 Application for Accident Disability Retirement. The evidence also shows that he currently receives private treatment for his knees by a non-VA orthopedic surgeon. See September 2019 VA treatment record. As these treatment records may be relevant to the Veteran's claim, and complete records are not associated with the claims file, on remand the RO should attempt to obtain these outstanding records, to include any other identified, outstanding private treatment. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated June 2020. 2. Provide the Veteran with another opportunity to identify/submit any outstanding private treatment records relevant to his claim. The evidence reflects that he received private treatment for his right knee in the 1970s and 1980s at the Bronx Lebanon Hospital, Interboro Hospital, North Central Bronx Hospital, and Montefiore Hospital. The evidence also shows that he has received treatment from All Care Physical Therapy Center and Ocean Orthopedic Associates. After obtaining necessary authorizations from the Veteran for the identified records, all outstanding records, should be obtained. 3. Then, obtain an addendum VA opinion from an appropriate medical professional to address the Veteran's service connection claim for a bilateral knee disability. The claims file, to include a copy of this Remand, should be made available to and be reviewed by the examiner. The examiner should address the following: Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed bilateral knee arthritis (1) had an onset in service; (2) manifested within a year of discharge from active service; OR (3) is otherwise related to service, to include the Veteran's competent reports of experiencing knee pain in service related to in-service duties of jumping/climbing in and out of tanks as a mechanic. In providing the above opinion, the VA examiner must address the Veteran's reports of experiencing knee pain in and since service and reports that he did not report his knee pain in service because he did not want to jeopardize his police career. The examiner should also consider: (1) the December 1985 Application for Accident Disability Retirement reflecting the Veteran's report of being treated for an unstable right patella mechanism in January 1973; and (2) the April 2012 VA treatment record reflecting the Veteran's complaints of developing initial knee injuries when he was in service. The examination report must include a complete rationale for any opinion provided. The rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical finding and must reflect consideration of the lay assertions of pertinent symptomology. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.