Citation Nr: 21076736 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-40 234 DATE: December 27, 2021 ORDER Entitlement to service connection for a bilateral knee disability is granted. FINDINGS OF FACT 1. The record evidence shows that the Veteran incurred bilateral knee injuries during active service. 2. The record evidence shows that the Veteran has been diagnosed as having current bilateral knee disability. 3. The record evidence shows that the medical opinions of record are inadequate for VA adjudication purposes. 4. After resolving any reasonable doubt in the Veteran's favor, the record evidence shows that his current bilateral knee disability is related to service. CONCLUSIONS OF LAW The criteria for service connection for a bilateral knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1983 to October 1986, from September 1990 to June 1991, from February to May 2003, and from July 2003 to August 2004. He had additional unverified Reserve service between October 1986 and February 2010. This matter comes before the Board of Veteran's Appeals' (Board) on appeal from a May 2014 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2018, September 2020, and in June 2021, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The record evidence shows that the Veteran's complete service treatment records are unavailable. His claims file includes a September 2010 memorandum and letter indicating that his service treatment records from October 1983 to October 1986 and from September 1990 to June 1991 were unavailable. He submitted copies of his service treatment records which include records from these periods of active duty. The submitted records also appear incomplete as they do not include entrance or separation examination reports. In cases where the Veteran's service treatment records (or other relevant records) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA also must provide an explanation to the appellant regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). Having reviewed the record evidence, the Board finds that it is reasonably certain that additional service treatment records do not exist and further efforts to obtain them would be futile. The Veteran seeks service connection for a bilateral knee disability. He contends that he sustained bilateral knee injuries during service and experienced bilateral knee pain since service. Regarding a current disability, the August 2021 examiner noted bilateral knee degenerative arthritis. Thus, there is evidence of a current bilateral knee disability. Regarding an in-service occurrence, the claims file shows complaints of knee pain both in service and in between his periods of service. Specifically, he complained of knee pain in September 1985, November 1985, April 1996, March 2006, and November 2007. Thus, there is evidence of an in-service injury to his knees. The remaining question is whether the current bilateral knee disability is related to service, including these in-service complaints of knee pain. Regarding a nexus between the current bilateral knee disability and in-service complaints, the Veteran was afforded VA examinations in September 2019, February 2021, and August 2021. Because the Board previously found the September 2019 and February 2021 VA examinations to be inadequate for VA adjudication purposes, this evidence was not reviewed or relied upon in adjudicating the currently appealed claim. Pursuant to the Board's June 2021 remand, the Veteran was afforded a VA examination in August 2021. The August 2021 examiner provided a negative nexus opinion with the rationale that the July 2003 pre-employment health assessment and the September 2007 post-deployment health reassessment were both negative for conditions of the knee or service-related knee complaints. The examiner stated that the November 1985, September 1988, and July 2014 knee complaints were treated/resolved acute conditions. The examiner also stated that the Veteran's age and body habitus are appropriate for osteoarthritis diagnosed in 2019 is less likely than not from service. The August 2021 examiner did not address the Veteran's diagnosis of bilateral chondromalacia patella. Additionally, while the examiner addressed the Veteran's knee complaints from November 1985, September 1988, and July 2014, she did not address the complaints of knee pain from March 2006 and November 2007, as specifically requested by the Board remand. Nor did this examiner provide an opinion as to whether the Veteran's knee complaints that occurred in between his active-duty service was aggravated by his subsequent active-duty service or due to his Reserve duty which ended in February 2010. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Having reviewed the August 2021 VA examiner's opinion, the Board finds that it is inadequate for VA adjudication purposes. It is not based on a factual predicate in the record. Nor does it appear to be based on relevant clinical data the Veteran's complaints of knee pain which the August 2021 VA examiner did not address in the medical nexus opinion. The Veteran consistently has asserted that he injured his bilateral knees during service and experienced continuous post-service disability. The available service treatment records show complaints of bilateral knee pain during periods of active duty. VA examiners confirm current diagnoses of a bilateral knee disability. Therefore, the first two criteria for establishing service connection have been satisfied and the dispositive issue is whether there is a nexus between the two. The Board finds that the Veteran's lay statements are entitled to significant probative value because they are consistent with the facts and circumstances of his active service. Unfortunately, despite repeated remands, multiple VA clinicians have been unable to provide a medical nexus opinion concerning the contended etiological relationship between the Veteran's current bilateral knee disability and active service. As discussed above, the Board has found each of the opinions obtained on remand by the RO inadequate for VA adjudication purposes. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for a bilateral knee disability is warranted. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.