Citation Nr: 21072478 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 14-02 037 DATE: December 3, 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 had active service from March 1954 to June 1964. In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this case in February 2017. That remand also included the issue of entitlement to service connection for diabetes. However, a September 2021 rating decision granted that issue in full. Therefore, the issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Veteran's former representative's accreditation with VA was cancelled in September 2021. In November 2021, the Regional Office informed the Veteran of that cancellation and advised him that he is considered unrepresented. The Veteran has not since appointed a new representative, and is therefore currently unrepresented. 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. The Veteran has reported that he injured his right knee on active duty while he was stationed at the Santa Ana, California, Marine Corps base and that he sought medical treatment at the air facility there. He has also reported that he injured his left knee playing football on active duty while stationed at Camp Pendleton. Throughout the record, the Veteran has indicated that his left knee injury took place in September or October 1954. The February 2017 Board remand noted that although the Veteran's service treatment records do not document any knee injuries, complaints, or treatment, they do contain examination reports dated in April 1956, September 1956, August 1957, June 1958, and August 1960 that document a scar on the left knee, as well as prior examinations dated in August 1953 and March 1954 that do not note a left knee scar. Additionally, at a May 1994 VA examination, the examiner documented that the Veteran's right knee was degenerating due to compensatory stress from guarding the left knee. The Board therefore found that the Veteran should be afforded a VA examination as to his claimed left and right knee disabilities. The Board directed that the examiner on remand "must presume the Veteran is a credible historian and may not base a negative opinion on the fact that there are no documented knee injuries in the Veteran's service treatment records." In May 2019, a VA examiner opined that the Veteran's current left and right knee disabilities are less likely than not related to his active service. However, the examiner's rationale for that opinion relies exclusively on the lack of contemporaneous medical treatment records documenting in-service injury or complaints, which is contrary to the Board's remand instructions and is not a permissible basis for finding the Veteran's reports not credible. 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). Therefore, the May 2019 opinion does not complete the Board's remand directives and is not adequate for decision-making purposes. The issues must be remanded for an addendum opinion. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's claimed left and right knee disabilities are at least as likely as not (50 percent probability or greater) related to his active service, to include his reported in-service knee injuries. If the examiner finds that the Veteran's left knee disability is related to his active service but that the Veteran's right knee disability is not related to his active service, then the examiner must also provide an opinion as to whether it is at least as likely as not that any diagnosed right knee disability was caused or aggravated beyond its natural progression by a left knee disability. The examiner must consider the Veteran's statements, to include his testimony at the November 2016 Board hearing, that he injured his left and right knees in separate in-service accidents. In considering those assertions, the clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In determining whether the Veteran's statements are credible, other factors for consideration include internal consistency, facial plausibility, and consistency with other information submitted by or on behalf of the Veteran. If there are no factors beyond a lack of contemporaneous medical evidence documenting in-service complaints or treatment for knee symptoms, then the examiner should accept as true the Veteran's account of the in-service injuries even though they are not specifically documented in the service treatment records. In providing the requested opinions, the examiner must discuss the significance, if any, of the in-service examination reports dated in April 1956, September 1956, August 1957, June 1958, and August 1960 that document a scar on the left knee and the prior examination reports dated in August 1953 and March 1954 examinations that do not note a left knee scar. The examiner must also discuss the significance, if any, of the April 1992 private treatment note stating that there appeared to be a bifid patella on the right but not the left. The attending physician stated about that finding, "I would suppose it is remotely possible that this could represent old fracture." 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 disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 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.