Citation Nr: 21076931 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 14-13 212 DATE: December 28, 2021 REMANDED Entitlement to service connection for right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In August 2016, the Veteran testified at a travel Board hearing before the undersigned. In January 2018, the Board remanded the appeal for additional development. Specifically, the Board directed the RO to consider the Veteran's lay statements and comparative severity when examining the Veteran's knees. In December 2020, the Board denied service connection for the Veteran's right knee disability. The Veteran timely appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). The Court, in August 2021, vacated the Board's decision denying service connection finding that the February 2018 VA examination was inadequate. The Veteran's claim for service connection comes, again, before the Board to be remanded for further development. Entitlement to service connection for right knee disability is remanded. The Court has determined additional development is needed before the Veteran's claim can be decided on appeal. The Court concluded that the February 2018 VA examination was not in compliance with the Board's January 2018 remand directives. The Board is, therefore, bound by the Court's decision and remands for an addendum opinion to the February 2018 VA examinations. The Veteran contends that he incurred a right knee injury during an obstacle course in basic training. Specifically, the Veteran states that he lost traction while running over a pit and fell inside the pit, causing his knee to swell. He contends that although he went to sick call, he ultimately did not see a doctor and instead iced his knee in his bunk. At his hearing, the Veteran described a second incident involving his knee. The Veteran also stated that his job in Vietnam was to transport and haul goods every day, which would sometimes cause problems for his knee. The Veteran has submitted letters he sent his wife concerning his knee problems, as well as statements from his wife, his mother, and two soldiers who saw him during his time at Fort Knox. The service treatment records are silent for reference to knee problems, except on the entrance and discharge examinations. The entrance examination referenced a prior left knee injury but was silent for any reference to the right knee. The discharge examination includes a report of medical history on which he reported a history of swollen or painful joints, cramps in his legs, and wrote a question mark for whether he had a "trick or locked knee;" the affected knee is not identified. In March 2011, based on a Magnetic Resonance Imaging (MRI) of the right knee, a VA examiner diagnosed the Veteran with a chronic tear of the anterior cruciate and a small focal area of abnormal signal in the lateral tibial plateau associated with previous trauma. In May 2012, a VA examiner diagnosed the Veteran with degenerative joint disease in both knees. In the May 2012 examiner's report, the examiner found that the Veteran's right knee disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran has bilateral symmetrical joint disease and that if the right knee disability was due to injury in service, the degenerative joint disease would be worse on the injured side. The examiner did not state, however, how the Veteran's left knee injury from high school would impact this finding. The May 2012 VA examiner's opinion was based in part on the rationale that he would have expected the degenerative changes in the right and left knee to be of different severity had the Veteran sustained right knee injury in service. The Board points out, however, that given the Veteran's pre-service left knee trauma, that the right knee degenerative changes are now the same as the degenerative changes in the left knee, which could be interpreted as evidence that the right knee was traumatized in service to the same extent as the left knee was traumatized before service. Alternatively, it could suggest that post-service rigors damaged the right knee to the extent that it is now as disabled as the left knee. In any event, the Board finds that further clarification is required. Following the Board's last remand, the RO ordered a VA examination in February 2018. The VA examiner concluded that the Veteran's right knee disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted a question mark (?) under the column for "tricked or locked knee" in the Veteran's separation record. The examiner stated "surely, [the Veteran] would have marked YES if he was referring to his r[ight] knee which he now claims was injured while on active duty." In return, the VA examiner concluded that the question mark was made in reference to the left knee, which was injured before service, or the right knee. Furthermore, the examiner noted the Veteran's extensive post-service career and stated that "any coal miner with a significant knee injury could not have worked for 20 years in a low wall coal mine." Ultimately, the VA examiner concluded that the Veteran's right knee disability is a result of a combination of possible diffuse osteoarthritis and decades in the coal mine. The February 2018 VA examination did not comply with the Board's prior directives in its January 2018 remand in considering the Veteran's lay statements, additional evidence of the record, nor the May 2012 VA examiner's rationale. The VA examiner did not consider the Veteran's lay statements regarding the onset and symptoms of his right leg disability. During the Veteran's 2016 hearing, the Veteran testified that he attempted to get treatment for his swollen knee, but the line was too long. The Veteran sent handwritten letters to his wife on Fort Knox letterhead postmarked 1967 in which he stated that he twisted his leg and was limping around. In another letter, the Veteran stated that he was going to have x-rays on his knee because it was bothering him again. Additionally, the February VA examiner did not consider nor discuss the 2012 VA examiner's rationale based on the comparative severity between the Veteran's left knee injured prior to service with his right knee injured during service. Lastly, the examiner did not consider additional evidence of the record including but not limited to the Veteran's hearing transcript. The matters are REMANDED for the following action: Acquire an addendum opinion by an examiner with appropriate expertise to review the May 2012 examination and February 2018 examination to determine whether the Veteran's right knee disability is related to service. The electronic claims file must be made accessible to, and be reviewed by, the examiner, and the report should note that review. The examiner is requested to provide an opinion as to whether it is at least as likely as not that the Veteran's right knee disability is etiologically related to service. In formulating the opinion, the examiner should consider the Veteran's lay statements regarding onset and symptoms of the claimed disability including but not limited to the Veteran's statements found in the August 2016 hearing transcript. (The Veteran states that, while in service, he injured his right knee when he lost traction and fell into a pit in an obstacle course, and that he transported and hauled goods for 14 months in service. The Veteran, in letters to his wife from Fort Knox, stated he did not receive treatment for his knee because the line was too long but that he had been limping all week. Another letter stated that the Veteran would receive an x-ray of the right knee.) The examiner should also consider the Veteran's post-service employment. The examiner should note that the Veteran injured his left knee when he was a freshman in high school, particularly when analyzing the differences and severity between the Veteran's left and right knees. The examiner should address whether any claimed symptoms in service are consistent with any current disorder. If the examiner determines that explanations for one or more of the matters on remand are not feasible, the examiner must explain why such an opinion is not possible. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Clevenger, Gordanna A. 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.