Citation Nr: 21076887 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 19-29 339 DATE: December 28, 2021 REMANDED Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from January 1989 to February 1996, to include service in Southwest Asia. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of history, the Board denied the Veteran's claims for entitlement to service connection for bilateral knee disabilities in a March 2020 decision. The Veteran subsequently appealed the denial to the United States Court of Appeals for Veterans Claims (Court). Following a January 2021 Joint Motion for Remand (JMR), the Court granted the JMR and vacated the Board's March 2020 decision in February 2021. Following the Court's remand, the Board remanded this claim again in June 2021 for further evidentiary development by the Agency of Original Jurisdiction (AOJ), until it was presently returned. 1. Entitlement to service connection for a right knee condition is remanded. 2. Entitlement to service connection for a left knee condition is remanded. The Veteran contends that her bilateral knee disabilities are related to her active-duty service, to include as a result of her duties as an inspection journeyman. Pursuant to the Board's June 2021 remand, mentioned above, the Veteran was afforded a VA examination for her claimed right and left knee conditions in October 2021. The October 2021 VA examiner diagnosed the Veteran with bilateral knee strain. Regarding etiology, the October 2021 VA examiner opined that "the Veteran's bilateral knee strain is a diagnosable condition due to increased stress on the joint and not an exposure event. Her service as an inspection journeyman may have contributed to her current condition, however, she had no injury that she can remember, and the knee strain has developed slowly over the years in spite of her resolve to keep active and fit. It is less than 50 percent probability caused by exposure to toxins in Southwest Asia. The bilateral knee strain was less likely than not caused by the repetitive use and overuse over time during service[.]" The Board finds that the October 2021 VA opinion is inadequate regarding direct service connection. The examiner focused on the absence of complaints in service treatment records (STRs) as well as the fact that the Veteran could not recall a specific knee injury in providing the negative opinion. Relying on the absence of evidence in medical records to provide a negative opinion is contrary to the established case law, and such opinions are therefore inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, the October 2021 VA examiner does indicate that the Veteran's duties during active-duty service as an inspection journeyman could have resulted in her current bilateral knee disabilities; but then goes on to contradict that statement saying that the Veteran's knee strain was not caused by the repetitive use and overuse during her active-duty service. Without adequate rationale, these statements are contradictory. 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). As the October 2021 VA examiner's opinion has been found to be inadequate, a remand for a new opinion is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum VA opinion to address the etiology of the Veteran's claimed bilateral knee disabilities. The claims file must be made available to and reviewed by the VA examiner. Following a review of the entire record, the examiner is asked to address the following: (a.) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's bilateral knee strain is related to the Veteran's active service, to include her duties as an inspection journeyman? In answering this question, review and consider all the lay assertions of record, to include the Veteran's statements regarding onset and continuity of bilateral knee symptoms. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner should note that the lack of a diagnosed disability in service cannot serve as the sole basis for a negative finding. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. this is especially pertinent to consider, given the prior opinion that her duties "may have contributed" to her current disability. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.