Citation Nr: 21076873 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 15-11 479 DATE: December 28, 2021 REMANDED Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1983 to September 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in June 2019 and August 2020. In August 2018, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed. In August 2020, the Board denied service connection for bilateral knee disability. The Veteran appealed the 2020 Board decision to the Court of Appeals for Veterans Claims (Court) and in August 2021, the Court granted a Joint Motion for Remand (JMR) vacating and remanding the 2020 decision. The issues have now returned to the Board in accordance with the terms of the JMR. The Board will now re-examine the issues in light of the points of the JMR. 1. Service connection for right knee disability is remanded. 2. Service connection for left knee disability is remanded. The Veteran contends that his right and left knee disabilities are due to service from strenuous activities, including carrying heavy packs and running. At his Board hearing, he indicated that his knees started hurting in service. After service, his level of activity decreased, but he continued to have pain if he went on long walks. Service treatment records show that he complained of his knees hurting when walking, running, and walking upstairs in January 1988. He was found to have iliotibial band syndrome (ITBS). In a November 1993 report of medical history, he reported that he had a "trick" or locked knee. The description indicated that he had a left knee problem due to overuse. Medical records show that a left knee x-ray from June 2015 revealed mild tricompartmental osteoarthritis. A July 2015 left knee MRI revealed extensive chondral loss and fissuring of the trochlear articular cartilage with subjacent subchondral cystic change and extensive marrow edema. In January 2018, he complained of right knee pain while working out. Additionally, he complained of right knee pain while working out or running. The Veteran underwent a VA examination in December 2019. He was diagnosed with bilateral knee joint arthritis. The examiner opined that the current bilateral knee disability was less likely than not incurred in or caused by injuries sustained during his military service. It was noted that the Veteran was seen and evaluated for knee pain on multiple occasions beginning in 2014 and diagnosed with knee pain and treated with activity modifications, NSAIDs, and topical analgesics. A July 2015 left knee MRI revealed extensive chondral loss and fissuring of the trochlear articular cartilage and medial meniscus tears. The examiner stated that there was insufficient evidence to support that the patient developed a knee condition during service that became an ongoing concern requiring evaluation and treatment by medical providers. Specifically, his medical records are silent for a knee disability from the time of discharge to the present time. Also, as part of the rationale, the examiner added that a period of twenty years and radiographic evaluation revealed left knee mild degenerative joint disease consistent with the Veteran's age. The parties found the December 2019 VA opinion to be inadequate as it is, in part, based on the absence of medical treatment or findings. The absence of evidence cannot be taken as substantive negative evidence without a proper foundation to demonstrate that such silence has a tendency to prove or disprove a relevant fact. Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). Moreover, the opinion failed to discuss the extent to which the Veteran's in-service knee pain, diagnosed as ITBS and overuse syndrome, may have contributed to the development of his right and left knee disabilities. It also did not show adequate consideration of the Veteran's report of continuing pain since service. Upon remand, these points should be addressed as service connection may be established for a disability that did not initially manifest in service if it develops due to an injury or disease that was incurred during service. Additionally, the parties to the JMR noted the 2019 Board remand instructed the examiner to identify all bilateral knee disabilities that were currently present (May 7, 2012 to present). However, the VA examiner was not clear as to the diagnosed disabilities of the Veteran's right and left knees. Specifically, the MRI that was referenced pertained to the left knee, but the examiner's opinion did not make a distinction and the opinion of the right knee appeared to be based on the same information. As such, it is not clear if the Veteran has osteoarthritis in both knees. The VA examiner also noted cartilage fissuring and meniscus tears, but it was not clear whether they were considered as independent diagnoses from osteoarthritis. Another VA examination is needed to establish the specific disabilities attributed to each knee independently and to determine if there is a separate disability in addition to osteoarthritis. Regarding the Veteran's right knee disability, an examination is needed to establish whether the Veteran has a current diagnosed disability, or in the alternative, if symptoms including pain reach the level of functional impairment of earning capacity. If there is a finding of functional impairment, then a medical nexus opinion must be rendered. Based on the above, the Board finds that a remand to obtain another VA examination and opinion for the right and left knee disabilities is necessary. These matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his right and left knees. All indicated evaluations, studies, and tests deemed necessary should be accomplished. The clinician should review the virtual file, including a copy of this Remand. (a) Identify all right and left knee disabilities that are currently present (or present any time from May 7, 2012 to present). **Additionally, specify if chondral loss and fissuring of the trochlear articular cartilage and medial meniscus tear is a separate disability from osteoarthritis.** If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (b) Whether it is at least as likely as not (probability of approximately 50 percent) that a current right knee disability manifested during or is otherwise related to the Veteran's period of active service, to include strenuous physical activity during service, such as carrying heavy packs and running? (c) Whether it is at least as likely as not (probability of approximately 50 percent) that a current left knee disability manifested during or is otherwise related to the Veteran's period of active service, to include strenuous physical activity during service, such as carrying heavy packs and running? **In formulating the above opinions, the examiner is asked to consider the Veteran's lay statements of continuous knee pain since service. See 8/30/2018 Hearing Transcript at 8-10.** A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cruz, K. 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.