Citation Nr: A21020070 Decision Date: 12/16/21 Archive Date: 12/15/21 DOCKET NO. 200611-92799 DATE: December 16, 2021 REMANDED Entitlement to service connection for a right knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1958 to November 1960. In September 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of a June 2019 rating decision based on new and relevant evidence. In February 2020, the agency of original jurisdiction (AOJ) issued the rating decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. In the June 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the appellant elected the Hearing option; therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Board hearing was held in September 2020. The transcript of this proceeding has been associated with the Veteran's electronic claims file. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2). Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). As noted previously, the February 2020 supplemental rating decision found that new and relevant evidence had been received to readjudicate the claim for the right knee condition. This is a favorable finding by the AOJ, and the Board will proceed to the address the claim on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Under the AMA, if the Board of Veterans' Appeals (Board) identifies a duty to assist error that existed at the time of the AOJ's decision on the claim under review, the claim must be returned for correction of the error and readjudication. 38 C.F.R. § 3.2601(g). Upon review of the Veteran's claim file, the Board finds that the AOJ failed to ensure that the duty to assist has been satisfied for the reasons stated below. The Veteran contends that his right knee condition is a result of his military service, specifically due to physical training that involved mule kicks and squat jumps. See March 2019 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. The Veteran's service treatment records (STRs) are silent as to any treatment or complaints of a right knee condition. However, the Veteran stated that he had problems with his right knee during service and originated during physical training exercises that involved mule kicks and squat jumps. The Veteran testified that he would limp for two or three days after the exercises and then in three to four days would do it again and these exercises wiped his knee out. Furthermore, the Veteran stated that his knee problems continued after he got off active duty. See September 2020 Board hearing transcript at pgs. 2-3. The Veteran also testified that he never went to sick leave because he was on the rifle team and was very good at it. See September 2020 Board hearing transcript at pg. 5. In July 2020, the Veteran submitted a statement that he never went to sick call because he would be called a wimp by the military. He also stated that he thought he was indestructible. The Veteran noted that he could not perform squat jumps and mule kicks and he later learned that these two exercises were dropped from the physical exercises regimen because they were blowing out too many people's knees. See July 2020 Correspondence. Additionally, in support of his claim, the Veteran submitted a statement from Dr. J.M. in September 2019. Dr. J.M. indicated that the Veteran was under his care and he believed that there is a 50 percent probability that his performance of these exercises while in the Army contributed to damage in his knees. While this statement is in part, a positive opinion, it does not address whether his current right knee condition had an onset, or it otherwise related to service, as the physician stated that his service contributed to damage in his knees. Here, based on the Veteran's lay statements and a medical statement that possibly relates that the Veteran's military service contributed to the Veteran's knees problems, the Board finds that the AOJ did not fulfill its duty to assist by requesting a VA examination. As there has been no examination for this condition, a remand is warranted to provide the Veteran with a VA examination and medical opinion regarding the onset and nature of the Veteran's right knee condition. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate medical professional to address the nature of the claimed right knee condition. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has a right knee condition that: a) had its onset in service; or b) is otherwise incurred in service to specifically include due to physical training that involved mule kicks and squat jumps? In providing the above opinion, the VA examiner should consider and address as appropriate: (1) the September 2019 statement from Dr. J.M; and (2) the Veteran's 2020 July statement that he did not go to sick call during his military service. The rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings and must reflect consideration of the competent lay assertions of pertinent symptomology from service to the present. This opinion should include a discussion of any pertinent studies or medical literature, as well as pertinent evidence on file. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.