Citation Nr: 21067071 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 13-16 720 DATE: November 3, 2021 REMANDED Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for esophageal disability, claimed as gastroesophageal reflux disease (GERD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1984 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural history, the Veteran testified before the undersigned Veterans Law Judge at a March 2017 hearing. A transcript is of record. This matter was denied by the Board in a September 2020 Board decision. The Veteran properly appealed this denial to the United States Court of Appeals for Veterans Claims (Court). Through a June 2021 joint motion for remand (JMR), the Board's September 2020 denial was vacated and remanded. In accordance with the June 2021 JMR, the Board finds a remand is necessary for further development, to include obtaining new VA examinations for the Veteran's right knee disability and GERD. The Veteran last underwent a VA examination for her right knee disability and GERD in February 2020. The JMR noted that the right knee disability examiner failed to provide an adequate medical opinion. Specifically, the examiner failed to consider the Veteran's lay statements regarding her disability and whether there was continuity of symptomatology. In an August 1992 in-service examination, the examiner noted that the Veteran suffered from knee pain. See August 1992 Service Treatment Record. After service, the Veteran continued to seek treatment for her right knee. See VA Medical Treatment Records. The February 2020 VA examiner opined that her condition was less likely than not incurred in or caused by service, as her service treatment records (STRs) were silent for any knee pain. The examiner then stated that she reported having knee pain for five years during her August 1992 in-service examination. The Board finds these statements contradict each other making the medical opinion inadequate. Furthermore, the examiner failed to consider the Veteran's lay statements regarding her disability. Based on the above, the Board finds a remand is warranted for the Veteran's claim for service connection for right knee disability. As for the Veteran's claim for service connection for GERD, the Board finds that a remand is warranted in accordance with the June 2021 JMR. The February 2020 VA examiner opined that the Veteran's condition was less likely than not incurred in or caused by service. The Board notes the examiner, prior to providing the medical opinion, outlined some of the Veteran's medical history. The examiner determined that there was no objective evidence that the Veteran's GERD was incurred during service based on the persuasive January 28, 2003 upper gastrointestinal radiological study which established that the Veteran had no radiographic evidence of reflux. See February 2020 VA Esophageal Conditions Disability Benefits Questionnaire (DBQ). The Board notes the examiner failed to consider any of the Veteran's lay statements. In addition, the examiner disregarded any medical evidence which contained a diagnosis of the Veteran's condition prior to the January 2003 study. The Board finds the examiner failed to base the medical opinion on the totality of the evidence, to include the Veteran's lay statements describing in-service onset of symptoms and continuity of symptoms. Based on the above, the Board finds a remand is warranted for a new VA examination and medical opinion. The matters are REMANDED for the following action: 1. After any additional development deemed necessary is completed, the RO should schedule the Veteran for a VA examination, with an appropriate examiner, for her right knee disability to determine the etiology of the condition. After a complete review of the claims file, the examiner is requested to address whether it is at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's diagnosed right knee condition was incurred in or caused by her active service. In answering this question, the Veteran's lay contentions of continuous symptoms must be considered in full. The examiner should specifically consider the April 1987 in-service note, the August 1992 in-service examination, the July 2015 hearing, and the March 2017 Board hearing. Also, please note that the Veteran is competent to describe subjective symptoms she may have experienced since service, particularly symptoms of knee pain. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner should note that the lack of diagnosed right knee disability in service cannot serve as the sole basis for a negative finding. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. 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 it is to find against it. 2. The RO should schedule the Veteran for a VA examination, with an appropriate examiner, for her esophageal disability to determine the etiology of the condition. After a complete review of the claims file, the examiner is requested to address whether it is at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's diagnosed esophageal disability was incurred in or caused by her active service. In answering this question, review and consider the lay assertions of record. The examiner should specifically consider the August 1992 separation examination, the March 2017 Board hearing, and January 2020 VA examiner's statement. Also, note that the Veteran is competent to describe any subjective symptoms she may have experienced during and since service, particularly symptoms of esophageal discomfort. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner should note that the lack of diagnosed esophageal disability in service cannot serve as the sole basis for a negative finding. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. 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 it is to find against it. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glaeser, Jennifer 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.