Citation Nr: 21067758 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-19 614 DATE: November 5, 2021 REMANDED 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 had active-duty service from June 1980 to June 1983. This matter comes to the Board of Veterans' Appeals (Board) from an April 2015 rating decision of a VA Agency of Original Jurisdiction (AOJ). The Veteran testified at a Board hearing in June 2020. A copy of the transcript has been associated with the record. The Board remanded the case for additional development in July 2020. The case is now returned for appellate review. On remand, which also included the issue of an increased rating higher than 30 percent for posttraumatic stress disorder (PTSD), the AOJ granted an increased rating of 70 percent for the Veteran's service-connected PTSD in a July 2021 rating decision, effective for the entire appeal period. As the Veteran had stated on his notice of disagreement in December 2015 that he was seeking a 70 percent rating for his PTSD, his appeal is considered satisfied with respect to that issue. 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. The Veteran's service connection claim for disabilities of the bilateral knees was remanded so that a VA medical examination and medical opinion could be provided with respect to the etiology of those disabilities. It was noted that the Veteran had testified that he had experienced knee pain and stiffness in service, which was consistent with his duties as a sniper. A medical opinion was provided in May 2021 that the Veteran's right and left knee strain was not related to service because the service treatment records were silent. The examiner also noted that the Veteran had a structural varus positioning of the knees that made him prone to compression of the medial compartment and pain with flexion. The examiner found that the anatomic structure of the knees preexisted service and not related to service. The evidence cited included the portion of the Board's remand recounting his testimony. The Veteran's representative submitted argument in September 2021 that the opinion provided was inadequate. The representative noted, in pertinent part, that that the May 2021 examination that accompanied the opinion noted that there were no flare-ups but also conversely noted that the Veteran noted soreness in the knees after prolonged driving or sitting and also felt tightness in the joints and then moved around to loosen up his knees after sitting for long periods of time. The representative thus essentially asserted that the opinion was based on an inconsistent and contrary examination report. The representative also argued that the examiner apparently did not understand that the evidence cited in the Board's remand was provided as justification for why a medical opinion should be provided, and thus should not be used as justification for why the claim should be denied. In addition, the Veteran's representative questioned the qualifications of the examiner noting that in review of an online resume, she was a general practice physiatrist and had no specialization in orthopedics, degenerative knee disabilities, or knee surgery. While the representative noted that the examiner did not specialize in orthopedics, degenerative knee disabilities, or knee surgery, the Board finds that the representative's correspondence fails to raise the question of the May 2021 VA examiner's' competency with sufficient clarity. Hence, the presumption of competency regarding the May 2021 VA examiner has not been rebutted. See Francway, 940 F.3d at 1308. Nevertheless, VA must respond to the Veteran's request for the May 2021 VA examiner's credentials. "Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist." Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (citing 38 U.S.C. § 5103A; Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013)). In addition to the matters addressed by the Veteran's representative, the Board finds that the examiner did not properly consider the Veteran's statements as to his complaints of knee pain in service, notwithstanding his lack of treatment in service. The Veteran is service-connected for PTSD based on trauma associated with his duties as a sniper. Thus, it is conceded that he was a sniper in service, which would presumably be consistent with duties involving crawling and kneeling on the ground. The Veteran has stated that this type of activity in service resulted in knee pain, which he is competent to state. The examiner also raised the issue of a congenital defect in the Veteran's knees. Service connection for a congenital defect may be granted if there is superimposed pathology on that defect during service. As the Veteran has stated that he experienced knee injury related to his sniper duties in service, the opinion should address whether there was any superimposed pathology on a preexisting knee defect during service. A supplemental opinion is warranted to address these matters. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. To the extent possible, provide the credentials of the May 2021 VA examiner, as allowed by law, to the Veteran and his representative, and associate copies of the materials provided with the electronic claims file. Allow a reasonable amount of time for the Veteran or his representative to respond. Associate any response and related materials with the electronic claims file. 3. Then, obtain an addendum opinion from the same VA examiner who conducted the May 2021 VA examination, and authored the associated medical opinion, if available, as to the nature and etiology of the Veteran's bilateral knee disorders. *The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinions. If an examination(s) is performed, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a careful review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) For each currently diagnosed bilateral knee disorder provide an opinion as to whether it at least as likely as not (50 percent or greater probability) had its onset during active-duty service, manifested within one year after service separation (for arthritis only), or is otherwise casually or etiologically related to service. (b) For any currently diagnosed congenital defect of the bilateral knees, provide an opinion as to whether it at least as likely as not (50 percent or greater probability) was subjected to any superimposed pathology on the defect during service resulting in current knee disability. The examiner must review the entire claims file including with consideration of the Veteran's competent statements as to in-service knee pain from injury due to crawling across different terrain as a scout sniper. A complete rationale should be provided for all opinions. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.