Citation Nr: 21070019 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-24 978A DATE: November 22, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran has over 30 years of combined active and inactive service in the Army, Reserves, and the New York and New Jersey Army National Guards, with active service periods from January 1964 to January 1967, September 1968 to September 1971, November 1996 to June 1997, February 2003 to March 2004, and April 2005 to March 2007. This matter comes to the Board of Veterans' Appeals (Board) from a November 2014 rating decision issued by the Agency of Original Jurisdiction (AOJ). The Veteran was scheduled to testify at a Board hearing in October 2021 but did not show. Up to now, he has not provided good cause for not showing. Neither has he requested another hearing. Accordingly, the Board considers his hearing request to be withdrawn. 38 C.F.R. § 20.704(d). Therefore, the Board will proceed with a decision based on the available evidence. 1. Entitlement to service connection for a right knee disability is remanded. The Veteran contends he has a right knee disability that is due to his active service. Specifically, he contends puncture wounds incurred during Vietnam were aggravated by his airborne service. See November 2015 Notice of Disagreement (NOD) at 2. Although the Board regrets the delay, the Veteran's claim must be remanded for a new VA examination and medical opinion before the Board is able to decide on the merits. The examiner who prepared the October 2014 medical opinion limited his discussion to right knee derangement. See VA Disability Benefits Questionnaire (DBQ) at 1. Given that the Veteran has also been diagnosed with right knee arthritis, another medical opinion is needed to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Considering the Veteran has undergone right knee arthroscopic surgery since the October 2014 VA examination, a remand is warranted for both a VA examination and medical opinion. The Board recognizes two favorable opinions are part of the record; however, the Board finds those opinions insufficient to decide the claim. In the June 2014 favorable opinion, a private provider opined the Veteran's right knee meniscal tear may be related his airborne service. See Private Medical Record by E.S.L., MD at 2. The opinion was based on the Veteran's reports that he suffered puncture wounds in Vietnam and had several years of airborne service. Id. Given that the Veteran's service treatment records (STRs) show more than four medical examinations that found normal knees after the events occurred, it is not apparent to the Board how Dr. E.S.L. came to his conclusion. Nievez-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2006). Also, Dr. E.S.L.'s use of the term "may" in his nexus opinion has several possible meanings; therefore, the opinion is too speculative to decide the claim. Given that he did not provide a rationale that helps the Board approximate whether "may" can be fairly read to mean more likely than not, the Board cannot rely on the opinion when evaluating the issue of a nexus. So, the Board finds Dr. E.S.L's opinion inadequate to decide the claim. Bloom v. West, 12 Vet. App. 185, 186 (1999)(holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty required for a medical nexus evidence). Similarly, the November 2014 favorable opinion was too speculative to decide the claim. See VAMC Record by A.W., MD. Although Dr. A.W. opined the Veteran's right leg puncture wounds and airborne service caused his meniscal tear, the record reflects Dr. A.W. is a resident, meaning she is a doctor who is still in training. Given that her opinion was changed by a doctor with greater expertise to now express the Veteran's service can cause arthritis and meniscal tears, the probative value the opinion was diminished. See November 2014 Addendum by A.D., MD. This is because the use of the term "can" in the nexus opinion has a variety of meanings and, therefore, does not provide the degree of medical certainty to decide the claim. Bloom, 12 Vet. App. at 186. Due to the deficiencies in the June and November 2014 favorable opinions, they could not be relied upon to grant the Veteran's claim. The Board notes a search of the record did not reveal STRs associated with the Veteran's active service periods from February 2003 to March 2004, and April 2005 to March 2007. On remand, the AOJ should get any outstanding service treatment records or personnel records related to those periods of service. The matter is REMANDED for the following action: 1. Get the Veteran's complete service treatment records and service personnel records for the dates of the Veteran's active service periods from February 3, 2003, to March 29, 2004, and April 18, 2005 to March 26, 2007. Document all requests for information as well as all responses in the claims file. 2. Then, schedule the Veteran for a VA examination for his right knee arthritis, internal derangement, and meniscus tear. The examiner must review the claims file. The examiner is asked to provide a response to the following: a. Is the Veteran's right knee arthritis at least as likely as not (50 percent or greater probability) related to service, including punji wounds to the right leg and service as a paratrooper? b. Regardless of the answer to (a), is it at least as likely as not (50 percent or greater probability) that the Veteran's right knee osteoarthritis (1) began during active service or (2) manifested within one year from leaving service? c. Regardless of the answers to (a),(b), Is it at least as likely as not (50 percent or greater probability) that the Veteran's right knee arthritis (1) began during service or (2) was noted during service and (2) manifested with continuity of the same symptomatology since service? d. Regardless of the answers to (a) through (c), is the Veteran's meniscal tear at least as likely as not (50 percent or greater probability) related to service, including punji wounds to the right leg and/or service as a paratrooper? If the Veteran has any other right knee disorder, provide a separate opinion for each additional disorder. Provide a rationale to support the opinion(s). The examiner, in coming to his or her conclusion, is asked to comment on the following: i. Consider the Veteran reported at least three parachute injuries that occurred in June 1970, June 1973, and January 1992. See September 18, 1973 Report of Medical History (Veteran attributed hip problems to June 1970 parachute jump and neck problems to July 1973 parachute jump); January 23, 1993, Statement of Medical Examination and Duty Status (Noting Veteran hit his head and back when landing from a parachute jump); January 23, 1993, STR (Noting Veteran told third-party observer his legs bent backwards when he fell). ii. Discuss the March 11, 2011, VAMC record that opines the Veteran's right knee pain is due to arthritis. The VA provider opined that that the location of the pain and types of activities associated with pain (going up and down stairs) and lack of patellar grind do not correspond to patellofemoral syndrome; instead, right knee pain is caused by arthritis. See Record by A.P. iii. Discuss whether there is any link between the Veteran's service and his May 2014 emergency room visit due to popping sound that was heard while getting on a bus. See May 27, 2014, VAMC Record. iv. Discuss the June 2014 opinion by Dr. E.S.L., a private orthopedic doctor, who opined the Veteran's right knee meniscal tear may be related to his service as a paratrooper. v. Discuss the October 2014 VA Medical Opinion that asserts the Veteran's internal knee derangement is not related to service. Particularly, the examiner's opinion that medical complaints of right knee problems were expected to be found in the STRs if it existed during service. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dean, Michael S. 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.