Citation Nr: 21068886 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 12-15 732 DATE: November 15, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from August 1984 to March 1985 and from May to June 1994 with additional periods of National Guard training. He also served on active duty (AD) from January to September 1991. This appeal to the Board of Veterans' Appeals (Board) is from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2020 decision, the Board denied these claims, and, in response, the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In June 2021, the CAVC granted a Joint Motion for Partial Remand (JMPR), vacating the portion of the Board's decision denying these claims and remanding them back to the Board for further development and readjudication pursuant to agreement in the JMPR. In granting the June 2021 JMPR, the CAVC agreed the Board had erred in its decision in failing to adequately discuss evidence of a qualifying period of AD service. To this end, the Board is first remanding these claims back to the RO (Agency of Original Jurisdiction (AOJ)). 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that his bilateral (left and right) knee disability is attributable to his military service. He was ordered to report for ACDUTRA from May 21, 1994 to June 4, 1994. During that training, on May 22, 1994, he injured his right ankle. However, evidence also indicates that he was later on a physical profile from June to September 2004, so about 10 years later, allowing him to abstain from the two-mile run normally required due to bilateral knee pain, patella femoral syndrome, and severe chondromalacia. A Memorandum for the provider, Walter Reed Army Medical Center (WRAMC), dated in June 2004, explains that he was not fit for military duty and had had pain for 10 years, thus, possibly relating back to his ACDUTRA from May to June 1994. The Veteran has not had a VA compensation examination in response to his claims. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010), the Federal Circuit Court held that, when determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. The record is sufficient to satisfy this low threshold requirement for determining when an examination and medical nexus opinion are needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board therefore is directing this further development of these claims. Accordingly, these claims are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination for a medical nexus opinion concerning the etiology of any current left and right knee disabilities. To facilitate discussion and consideration of the history of these claimed disabilities, the examiner must review the relevant evidence in the file including a complete copy of this remand, the JMPR, and the Board's prior September 2020 decision. For each knee disability confirmed, the examiner is asked to provide an opinion on whether it as likely as not (50 percent or greater probability) incepted during a qualifying period of active military service (whether AD, ACDUTRA or INACDUTRA) including when considering the Veteran's service from June to September 2004 recounting a history of knee impairment for some 10 years prior to that, so dating back to his prior service from May to June 1994. Rationale for the opinion is essential, regardless of whether favorable or unfavorable to the claims, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. The examiner is advised that the Veteran is competent to report symptoms and treatment, and these reports must be considered when responding. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, 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.