Citation Nr: 21068988 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-58 157 DATE: November 17, 2021 REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a lower back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty for training from June to August 1968 and from February to April 1971. He served honorably in the U.S. Army National Guard. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned at a Board videoconference hearing in December 2019. A transcript of the hearing is of record. The Board previously remanded this case in March 2020 for additional development. The case has now returned to the Board for further appellate review. 1. Entitlement to service connection for a left knee disorder is remanded. A remand is warranted as an addendum opinion is necessary. In a September 2020 VA clarification opinion, the clinician concluded that the Veteran's left knee disorder is less likely than not related to service. Noting the Veteran's subjective evidence of symptoms and treatment after service by a private physician and that he was unable to obtain medical records as the physician had passed away, the clinician's rationale appears to be based on the lack of objective medical evidence until 25 years after service. However, the clinician did not identify any reason why the Veteran's lay evidence is generally inconsistent with medical knowledge or implausible. Further, the Board had not made any credibility determinations with respect to the Veteran's lay statements and may not outsource a credibility determination to a medical examiner. Miller v. Wilkie, 32 Vet. App. 249, 259 (2020). Accordingly, an addendum opinion is necessary. 2. Entitlement to service connection for a lower back disorder is remanded. A remand is warranted to ensure substantial compliance with the March 2020 Board decision. The Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the March 2020 Board remand, the Board directed the examiner to render an opinion as to whether the Veteran's back disorder is at least as likely as not caused or aggravated by a left knee disorder. In a June 2020 VA examination report, the examiner concluded that the Veteran's lower back disorder is less likely than not related to his left knee disorder but did not address causation or aggravation by the left knee disorder in the rationale. Accordingly, a remand is necessary. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disabilities on appeal. Please ask the Veteran to provide the releases necessary for VA to secure private treatment records. 2. After the action requested in paragraph 1 is complete, please refer the claim to an appropriate clinician for an addendum opinion as to the nature and etiology of the left knee disorder. The Veteran's claims-file must be made available to and reviewed by the clinician. The clinician is requested to respond to the following: (a.) For each left knee disorder identified during the period on appeal, is the Veteran's disorder at least as likely as not (a 50 percent or greater probability) related to line of duty chondromalacia patellae or otherwise related to service? Solely for the purposes of rendering the requested opinion, the clinician is to treat as fact the Veteran's testimony about ongoing pain from 1975 to 1996 and taking pain medication without always seeking treatment. The examiner is advised that the Board has made no credibility determinations at this time. In responding to question (a.) above, please address the following: (b.) Please describe the types of symptoms (and, if possible, their duration) that would have been caused by the line of duty chondromalacia patellae. (c.) Please explain whether the Veteran's assertions of ongoing pain from 1975 to 1996 and taking pain medication without always seeking treatment are generally inconsistent with medical knowledge about chondromalacia patellae or implausible. (d.) Please explain whether the Veteran's in service chondromalacia patellae and reported symptoms align with how his current disorder is known to develop. ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After the action requested in paragraph 1 is complete, please refer the claim to an appropriate clinician for an addendum opinion as to the nature and etiology of the lower back disorder. The Veteran's claims-file must be made available to and reviewed by the clinician. The clinician is requested to respond to the following: (a.) For each lower back disorder identified during the period on appeal, is the Veteran's disorder at least as likely as not (a 50 percent or greater probability) caused by the left knee disorder? A rationale specific to the question of causation by the left knee disorder must be provided. (b.) For each lower back disorder identified during the period on appeal, is the Veteran's disorder at least as likely as not (a 50 percent or greater probability) aggravated by the left knee disorder? A rationale specific to the question of aggravation by the left knee disorder must be provided. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Vashaw, 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.