Citation Nr: 21069737 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-61 119 DATE: November 19, 2021 REMANDED Entitlement to service connection for right knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1984 to October 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran presented testimony at a virtual Board hearing before the undersigned Veteran Law Judge (VLJ). Entitlement to service connection for right knee condition. The Veteran claims that he has a current right knee disability due to an injury during service. See September 2013 VA Form 21-4138, Statement in Support of Claim. He asserts that his right knee symptoms began during service and have continued since service. The Veteran has current right knee diagnosis of arthritis/degenerative changes of the right knee as evidenced by the May 2014 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). A current right knee disability has therefore been demonstrated. The VA examiner provided an unfavorable nexus opinion regarding whether the Veteran's current right knee disability was incurred in or caused by an in-service event, but the opinion is inadequate because it is internally inconsistent. Specifically, the examiner noted that the service treatment records document "recurrent R. knee pain" and "knee injury prevents some motion" but finds that his current knee disability is not related to service, in part, because "there is no documentation of any knee condition or diagnosis while inservice." A new medical opinion is therefore necessary. Evidence indicates that there may be outstanding relevant VA treatment records. During a February 2021 hearing, the Veteran reported that he was treated at a VA Medical Center during 1994 or 1995. These VA treatment records are within VA's constructive possession and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. Additionally, the record shows that the RO requested VA treatment records from the Phoenix VAMC for the period of January 1, 1996 to December 31, 1997 and the Miami VAMC for the period of January 1, 2002 to June 23, 2003. In September 2014, a Veterans Service Representative (VSR) reported that such records do not exist. See VA Form 27-0820 and VA Form 27-0820. However, the Veteran was not notified that his VA treatment records could not be obtained. In light of the foregoing, a remand is required to notify the Veteran that VA was unable to obtain them. Lastly, the Board notes that a May 2016 VA Form 21-4138, Statement in Support of Claim, faxed by the Veteran's representative and received by the VA on May 5, 2016, is incomplete. On remand, the RO should allow the Veteran an opportunity to resubmit the VA Form 21-4138. This matter is REMANDED for the following actions: 1. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. Specifically, medical records from the Phoenix VA Medical Center from January 1, 1994, to December 31, 1995. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). All attempts to contact the Veteran should be documented in the record. 2. Notify the Veteran, in accordance with 38 C.F.R. § 3.159(e), that medical records from the Phoenix VA Medical Center from January 1, 1996, to December 31, 1997, and Miami VA Medical Center from January 1, 2002, to June 23, 2003, were unable to be obtained. 3. Provide the Veteran an opportunity to resubmit the VA Form 21-4138 faxed on May 5, 2016. 4. Obtain an addendum opinion regarding the Veteran's current right knee disability. Following a review of the complete record, the examiner is asked to address the following: (a) Is it as likely as not (50 percent or more probability) that the current right knee disability had its onset during or is otherwise related to the Veteran's military service? In answering the foregoing, the examiner should consider the service treatment records, and the Veteran's lay statements regarding the onset and progression of his right knee pain and disability since service. The examiner should specifically comment on the Veteran's diagnosed minor knee strain in September 1987. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the RO should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the RO should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. A complete, clearly stated rationale must be provided for each opinion offered. 5. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Oquendo, L., 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.