Citation Nr: 21074158 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 19-37 062 DATE: December 14, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a disorder manifested by tremors, to include Parkinson's disease, is remanded. REASONS FOR REMAND The Veteran had active military service from January 1962 to March 1990. He is the recipient of several medals, including a Meritorious Service Medal with four oak leaf clusters, Air Force Commendation Medal with one oak leaf cluster, Republic of Vietnam Gallantry Cross with Palm, and a Republic of Vietnam Campaign Medal. The Veteran testified before the undersigned Veterans Law Judge during a November 2020 virtual Board hearing. A copy of the transcript has been associated with the file. A remand is necessary to ensure compliance with the previous April 2021 remand directives and proper development. When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900. 1. Entitlement to service connection for a right knee disability 2. Entitlement to service connection for a left knee disability These issues were previously remanded by the Board in April 2021, to provide the Veteran with a VA examination. During his November 2020 Board hearing, the Veteran testified that he injured his knees as a result of his duties as an aircraft maintenance mechanic, fixing aircraft. He described an incident in service, in 1978, where his left knee popped out of joint when he was crawling down an intake to inspect an engine. See Hearing Transcript, Page 3. After that, he stated his knee popped out of joint "off and on, off and on and it never healed up and it still gives me problems." Hearing Transcript, Page 4. He testified he experienced pain and swelling in both knees on and off through his time in service, with continual pain following service. Hearing Transcript, Page 6. His wife testified he self-medicated for pain until approximately 2000, when he sought medical treatment for his knees. Id. Pursuant to the April 2021 Board remand, the Veteran appeared for a VA examination in September 2021 to assess the nature and etiology of his bilateral knee disability. A diagnosis of degenerative arthritis of the bilateral knees was noted. The examiner opined that the Veteran's bilateral knee disorder was less likely than not related to his military service. For rationale, the examiner noted that although the Veteran reported he had bilateral knee pain during service, his service treatment records do not show treatment of a knee condition during active service or during the presumptive timeline. Thus, it is less likely than not that his bilateral knee disorder manifested in service or was otherwise related to service. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the September 2021 VA examiner based his opinion on the absence of medical records corroborating the Veteran's contentions. A negative opinion based solely on the lack of evidence in service treatment records is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Thus, another VA nexus opinion, with sufficient rationale, is required. The Board emphasizes that the mere absence of evidence of treatment, for example after separation from service, does not contradict a veteran's statements about his symptom history. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a nexus between the disability and service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, the United States Court of Appeals for Veterans Claims, in Savage v. Gober, agreed that in a case where the veteran failed to present medical nexus evidence relating a currently diagnosed disability to an in-service injury along with lack of evidence of treatments may bear on the credibility of the evidence of continuity. Additionally, upon remand, the RO should ensure all treatment records have been associated with the file. The Veteran's wife testified her husband began seeking treatment for his knees in approximately 2000. Records of such treatment for that time period have not been associated with the file. 3. Entitlement to service connection for a disorder manifested by tremors, to include Parkinson's disease, is remanded The Board previously remanded the issue in April 2021, to provide the Veteran with a VA examination. The prior Board remand directed the RO to obtain an opinion considering whether herbicide exposure during service caused or was otherwise related to his current hand tremors or if his hand tremors manifested in service or was otherwise causally related to service. The August 2021 examiner opined the Veteran does not have a diagnosis of Parkinson's, and hand tremors are not on the current list of diseases subject to presumptive service connection. This opinion is inadequate and does not fulfill the Board's remand directives. See Stegall, 11 Vet. App. at 271 (remand by the Board confers upon claimant, as a matter of law, the right to compliance with remand order). The opinion failed to address direct service connection. The examiner did not attempt to provide an opinion as to whether it is at least as likely as not that the diagnosed hand tremors are related to service. A medical opinion that does not consider all raised theories of entitlement, including direct service connection when presumptive service connection cannot be established, is inadequate. On remand, an addendum medical opinion that addresses the etiology of each diagnosed condition and all raised theories of entitlement must be obtained. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Forward the claims file to an appropriate clinician to review the file and provide an addendum medical opinion regarding the Veteran's bilateral knee disability. The Veteran need not be scheduled for another physical examination unless such examination is considered necessary to provide a reliable opinion as to etiology. For purposes of the opinion, the examiner should note that the Board finds the Veteran's statements regarding his in-service knee injuries while on active duty to be competent and credible. The examiner is requested to provide an opinion as to the following: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current bilateral knee disability began in or is otherwise caused by the Veteran's active military service. In addressing the issue of nexus, the examiner must reflect consideration of the Veteran's contentions that he experienced knee pain in service and since service. In considering those assertions, the examiner 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. The opinion must discuss whether the disability picture presented is consistent with the Veteran's reports (lay observations) of onset in service and continuity of complaints since service. 3. Forward the claims file to an appropriate clinician to determine whether the Veteran's essential hand tremors are related to his military service. Following review of the claims file, the examiner should opine: (a.) Whether it is at least as likely as not (50 percent or greater probability) that his hand tremors began in or is otherwise caused by the Veteran's active service, to include, but not limited to, his conceded exposure to herbicides. The examiner is informed that just because hand tremors are not on the list of presumptive diseases shown as due to herbicide exposure, it can still be shown on a direct basis. A detailed rationale is requested. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.