Citation Nr: 21072010 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-01 853 DATE: December 2, 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 from October 1987 to June 1988, from December 1990 to June 1991, and from April 2002 to August 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In November 2020, the Veteran, his spouse, and his daughter appeared before the undersigned Veterans Law Judge at a Board virtual hearing. A copy of the hearing transcript has been associated with the electronic claims file. In a September 2021 appellate brief, the Veteran's representative provided written argument regarding entitlement to service connection for hypertension. However, this claim was already granted in a July 2021 rating decision. This grant of entitlement to service connection for hypertension constitutes a full grant of the benefits on appeal, and this claim is no longer in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran's claims seeking entitlement to service connection for left and right knee disabilities were previously before the Board in March 2021, where they were remanded for further evidentiary development. The RO was requested to solicit authorization from the Veteran regarding any outstanding private treatment records, and obtain such evidence. The RO was also requested to schedule a VA examination to assess the nature and etiology of the Veteran's claimed left and right knee disabilities, and to obtain medical nexus opinions. The outstanding private treatment records from the Veteran's orthopedist and physical therapist were received into evidence in May and June 2021. Additionally, a VA examination assessing the Veteran's left and right knees was conducted in April 2021, and thereafter, the VA examiner issued negative medical nexus opinions declining to etiologically link the Veteran's left and right knee disabilities to the Veteran's active duty service. After a complete review of the electronic claims file, the Board finds that the RO has substantially complied with the Board's March 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the September 2021 appellate brief, the Veteran's representative argued that the Nurse Practitioner who conducted the April 2021 VA examination was not competent to provide the unfavorable nexus opinions because he had no expertise or specialization in the area of degenerative joint disease, orthopedics, or knee injuries. The representative provided websites indicating that the VA examiner is a Nurse Practitioner licensed in the state of Tennessee who specializes in Family Medicine at the Ochsner Medical Center. Applicable law holds that once a veteran challenges the competency of a medical examiner, VA must satisfy its burden of persuasion as to the examiner's qualifications. Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). As such, the claims must be remanded for the RO to obtain additional information regarding the April 2021 VA examiner's medical qualifications. Only if it is determined that the April 2021 VA examiner lacked the qualifications to opine on the etiology of the Veteran's left and right knee disabilities, should an addendum VA medical opinion be obtained from a qualified examiner regarding the inquiries set forth in the March 2021 Board decision. At neither the November 2020 Board hearing, nor his April 2021 VA examination did the Veteran report that he suffered a severe post-service work-related injury in November 2016, which necessitated an April 2017 left knee meniscectomy. The private treatment records of the Veteran's orthopedist indicate that in November 2016, the Veteran was working as an air traffic systems specialist, when he injured his left knee when he fell into a hole while removing trees from a fence line. See February 2017 notes of Dr. DGJ. The orthopedist indicated that the Veteran's left knee symptoms were "a definite work related injury." Id. Later treatment records from the Veteran's treating physical therapist confirm that the Veteran injured both knees in this post-service accident. See May 2017 physical therapy notes. December 2016 treatment records from Dr. DGJ confirm that the injuries sustained in November 2016 were subject to a workers' compensation claim. Upon remand, the RO is requested to undertake appropriate efforts to obtain the outstanding workers' compensation records relevant to the disabilities on appeal. The Board notes that the undersigned has intimated no opinion on the credibility of the Veteran's lay reports. To the extent that any silence on the issue in the March 2021 Board decision can be interpreted as implicitly finding the Veteran's lay reports to be credible, the Veteran is on notice of the potential for adverse credibility determinations once all outstanding evidence and issues are resolved and the claims are ripe for final adjudication on the merits. See Smith v. Wilkie, 32 Vet. App. 332 (2020); see also Thurber v. Brown, 5 Vet. App. 119, 123 (1993) ("[t]he entire thrust of the VA's nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process."). Lastly, the RO is requested to obtain any additional VA treatment records from May 2021 to the present for evidentiary consideration. 38 C.F.R. § 3.159(c)(2) and (3). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from May 2021 to the present. 2. Contact the Veteran and specifically request that he complete a VA Form 21-4142 regarding the workers' compensation records relevant to his November 2016 post-service injury to the knees, as discussed in the private treatment records from Dr. DGJ and the Veteran's physical therapist. If the authorization is provided with the appropriate records custodian identified, the RO is requested to undertake appropriate efforts to obtain such evidence. The Veteran is reminded of his duty to cooperate in the development of his claim. See Wood v. Derwinski, 1 Vet. App. 191 (1991); 38 U.S.C. § 5107(a). 3. Obtain the curriculum vitae/resume and/or any other relevant information pertaining to the qualifications of the April 2021 VA examiner. Document all development pertaining to this directive in the claims file. If the documents are not available or cannot otherwise be procured, this finding should be indicated in the record. 4. ONLY IF it is determined that the April 2021 VA examiner lacked the qualifications to opine on the etiology of the Veteran's left and right knee disabilities, then obtain an addendum VA medical opinion from a qualified VA examiner regarding the following inquiry: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current right and left knee disorders were incurred during or caused by his active duty service? The examiner should discuss the pre-service 1983 private treatment records showing a right knee meniscectomy, as well as the 1991 and 1994 treatment records showing left knee problems, and the 2012 treatment note showing knee swelling. The examiner should also consider the Veteran's contention that many years of kneeling, climbing ladders, and sitting in the cockpit of aircraft contributed to his current knee disabilities. The RO is requested to ensure that all medical opinions issued by the VA examiner are accompanied by complete rationales based on the examiner's clinical experience and medical expertise; established medical principles; and/or citations to the electronic claims file, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.