Citation Nr: 21072370 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 14-14 458 DATE: December 2, 2021 REMANDED Entitlement to service connection for mild degenerative joint disease of the right knee is remanded. Entitlement to service connection for mild degenerative joint disease of the left knee is remanded. REASONS FOR REMAND The Veteran had active service from September 1985 to December 2006. The Veteran's DD Form 214 lists the character of discharge as "Dishonorable". In a final, unappealed April 2010 administrative decision, VA determined that the Veteran is only eligible for VA benefits for his period of active service beginning on September 23, 1985, and ending on February 27, 1994, and that a statutory bar to benefits under 38 U.S.C. § 5303(a) exists for his period of active service beginning on February 28, 1994, and ending on December 4, 2006. In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In November 2018, the Board issued a decision denying the issues on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued a memorandum decision vacating the November 2018 Board decision and remanding the case for further consideration. The Board remanded the case to the agency of original jurisdiction (AOJ) for further development in February 2021. 1. Entitlement to service connection for mild degenerative joint disease of the right knee is remanded. 2. Entitlement to service connection for mild degenerative joint disease of the left knee is remanded. The February 2021 Board remand found that a March 2018 VA opinion did not address the Veteran's contention that he was diagnosed with bilateral knee arthritis during his active service. The remand therefore directed the AOJ to obtain an addendum opinion in consideration of the Veteran's reports at the May 2017 Board hearing that he was diagnosed with bilateral knee arthritis "back in the day" during his active service. On remand, the AOJ obtained opinions in March 2021, April 2021, and June 2021. The Board finds that the opinions do not sufficiently address the February 2021 Board remand directives and are otherwise inadequate for decision-making purposes. Specifically, the March 2021 and June 2021 opinions state that it is at least as likely as not that the Veteran's current bilateral knee disability began during his active service because it was first diagnosed during his active service in December 1998. However, the examiners who provided those opinions did not differentiate between the Veteran's period of active service prior to February 28, 1994, and his period from that date for which a statutory bar to VA benefits exists. Indeed, the June 2021 opinion states in part, "Army records are honorable from 1985-2006", and is based on the Veteran's reports that he was diagnosed with knee arthritis in 2005. Additionally, neither the March 2021 opinion nor the June 2021 opinion discusses whether the current mild degenerative joint disease of the bilateral knees is related to the bilateral knee retropatellar pain syndrome diagnosed in December 1998 and, if so, whether the current disability may have had its onset during the Veteran's period of active service prior to February 28, 1994. On the other hand, the April 2021 opinion states that it is less likely than not that the Veteran's current bilateral knee disability is related to his active service because "there are no records during that time period [prior to 1994]" that indicate knee problems. Thus, the examiner impermissibly determined that the Veteran's reports are not credible based solely on a lack of contemporaneous medical treatment records documenting complaints of knee problems prior to 1994. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible). As such, the issues must again be remanded for a further addendum opinion. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's currently diagnosed mild degenerative joint disease of the bilateral knees is at least as likely as not (50 percent probability or greater) related to his period of active service beginning on September 23, 1985, and ending on February 27, 1994, to include his reported in-service knee injury. The examiner is informed that the Veteran is not eligible for compensation benefits for any disabilities resulting from or relating to his period of active service from February 28, 1994, to December 4, 2006. For purposes of providing the requested opinion, the examiner should accept as true the Veteran's account of an in-service, to include at the May 2017 Board hearing. Specifically, he has reported that he hit his knees when the vehicle he was in drove into a ditch or ravine sometime between 1989 and 1992. The examiner must also consider the December 1998 service treatment records documenting the Veteran's reports of chronic bilateral knee pain for the prior 4 years and of a history of direct trauma to the knees. The December 1998 treatment note indicates that the Veteran was assessed with moderate retropatellar pain syndrome at that time. The examiner must further consider the Veteran's reports that he was diagnosed with bilateral knee arthritis during his active service. In considering those reports, the examiner should state whether the diagnosis of retropatellar pain syndrome rather than knee arthritis in December 1998 suggests that the Veteran did not have knee arthritis in or before December 1998. If there is any medical reason to accept or reject the proposition that the Veteran's reported injuries and symptoms in service and thereafter represented the onset of his current mild degenerative joint disease of the bilateral knees, this should be noted. Stated another way, do the Veteran's reports that his in-service knee injury caused his current mild degenerative joint disease of the bilateral knees align with how that current disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the Veteran's current mild degenerative joint disease of the bilateral knees is more likely related factors other than the in-service injury, then the examiner should describe those factors. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.