Citation Nr: 21074424 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 15-02 791 DATE: December 15, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2009 to January 2013. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision. This appeal was previously before the Board in December 2018, when the issues of service connection for a back disability, left knee disability, and right knee disability were remanded. By a May 2020 RO rating decision, service-connection for a back disability and left knee disability were granted, which is considered a full grant of benefits sought. The appeal, concerning the issue of service-connection for a right knee disability, has been returned for further appellate review. The Board notes that the Veteran has indicated that he is represented by the American Legion. However, in a November 2020 correspondence, the American Legion advised the Board that the Veteran is not represented by the American Legion. The Board advised the Veteran of this in an October 2021 letter, which provided information to the Veteran for selecting a representative. The Veteran did not respond to the letter within 30 days as requested. As such, the Board assumes that the Veteran wishes to represent himself. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that his right knee disability began during his military service and has continued since his separation. A remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Consistent with this, once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The December 2018 remand determined that a new VA knee examination was necessary because the October 2014 VA knee examination was inadequate. It was also concluded that updated VA and private treatment records should be obtained. In October 2019, the Veteran was afforded a VA knee examination. The examiner indicated that the Veteran had a diagnosis of right knee strain. The examiner opined that the Veteran's right knee disability was less likely than not incurred during his military service, instead it started when he was still a child. A June 2020 VA right knee opinion then opined that the Veteran's right knee strain, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by duties and occupational hazards during service. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The presumption of soundness is only rebutted where the evidence clearly and unmistakably shows that the Veteran's disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In this instance, the enlistment records do not indicate that the Veteran had a knee condition prior to enlistment. Therefore, the presumption of soundness attaches. The October 2019 examiner did not base the opinion that the Veteran's right knee disability was a pre-existing condition on the standard of clear and unmistakable evidence. The examiner noted that the Veteran had an unremarkable enlistment examination in October 2008 and that the Veteran began having knee pain during his military service as shown by a December 2012 progress note and the separation physical examination of January 2013. The examiner referenced that a December 2011 progress note noted the Veteran had a right knee dislocation as a child. The examiner then simply concluded that the Veteran had a pre-existing right knee condition from childhood without providing factual and medical analysis in support of the conclusion. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). As the examiner did not apply the correct standard and did not provide a thorough analysis of the evidence upon which to base the conclusion, the Board finds the October 2019 opinion to be inadequate. See Barr; see also Stegall. Furthermore, the June 2020 aggravation opinion was predicated on the conclusion of the October 2019 opinion that there was a pre-existing right knee condition. As such, the June 2020 is likewise inadequate. See Id. As noted above, a December 2011 non-governmental examination notes the Veteran had a right knee dislocation as a child, but no discussion was provided addressing whether the childhood dislocation was related to the right knee pain during service or his current right knee disability. As such, this information does not shed any light on whether the Veteran continued to have knee symptoms throughout his childhood or whether this was a singular injury from which the Veteran fully healed. The evidence does not currently demonstrate any relationship between the childhood right knee dislocation and the Veteran's current knee pain disability. Additionally, the Veteran has repeatedly reported that the pain in his right knee began during his military service due to the rigors of infantry service. See October 2014 VA knee examination; see also May 2014 Notice of Disagreement; October 2019 VA knee examination. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). As such, remand is necessary to obtain a new VA examination considering the nature and etiology of the Veteran's right knee disability, to include if there is clear and unmistakably evidence that a right knee disability preexisted service, occurred during service, or was caused/aggravated by a service-connected disability. Additionally, the VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. See 38 U.S.C. § 5103, 5103A; 38 C.F.R. § 3.159(c). As such, the December 2018 Board remand directed that the RO associate with the case file outstanding VA and private treatment records. The RO associated additional VA records with the claims file prior to issuance of the June 2020 supplemental statement of the case. However, the RO only sent one request to the Veteran for information regarding private providers. The VA must make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). Reasonable efforts to obtain records not in the custody of a Federal department or agency generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). In this instance, the RO did not make a follow-up request for information regarding private medical providers and authorization for release of information. Therefore, on remand, attempts should again be made to obtain this information. However, the Veteran should be reminded that the duty to assist is a two-way street. If a veteran wishes help, they cannot passively wait for it in those circumstances where they may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Based on the foregoing reasons, remand is warranted for further development. The matters are REMANDED for the following action: 1. Associate with the case file any relevant outstanding VA and private medical records. The RO must assist the Veteran in procuring any outstanding available private medical records that have not yet been associated with the claims file. The RO must provide the Veteran with the proper authorization forms for release of information and ask the Veteran to complete the forms in order for VA to assist the Veteran in obtaining any relevant private medical records. The RO must provide the Veteran with the appropriate period of time to complete and return the authorization forms. If the initial request for such information is not responded to, the RO must issue a follow-up request. Upon receipt of authorization by the Veteran to obtain the relevant medical records, the RO must make reasonable efforts, at least two (2) attempts, to obtain the relevant records. All attempts to secure this evidence must be documented in the claims file. If after exhausting efforts to obtain the named records, they are not able to be secured and it is determined that they do not exist or that further attempts would be futile, the RO must provide the required notice and opportunity to respond to the Veteran. 2. After the development above is complete, schedule the Veteran for an examination to determine the nature and etiology of the right knee condition. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. The examiner should obtain a complete, pertinent, history from the Veteran. The examiner should review the claims file in conjunction with the examination, including this remand, giving particular attention to the Veteran's entrance and separation examinations, service treatment records, VA and private treatment records, and lay assertions. a) The examiner is asked to provide the following: a. Whether the evidence of record clearly and unmistakably shows (i.e., it is undebatable) that the Veteran had a right knee condition that existed prior to his entry into active service. b. If the right knee condition clearly and unmistakably preexisted the Veteran's entry into service, does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the preexisting knee condition was not aggravated by service or that any increase in disability was due to the natural progression of the disease. b) If the Veteran's right knee condition did not clearly and unmistakably preexist active service, provide an opinion as to whether: a. It is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's currently diagnosed right knee condition was incurred in or caused by the claimed in-service injury, event, or illness. b. Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's right knee disability (1) was caused by his service-connected lumbar disability and/or left knee disability; or (2) was aggravated by his service-connected lumbar disability and/or the left knee disability. The examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms. The examiner must be advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and chronic nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. The examiner is reminded that a lack of evidence alone cannot be corroborating to conclude that there is no relationship between the Veteran's current disability and his military service. (Continued on the next page) The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.