Citation Nr: A21020378 Decision Date: 12/22/21 Archive Date: 12/21/21 DOCKET NO. 200205-68492 DATE: December 22, 2021 REMANDED Entitlement to service connection for a right knee condition status post total knee replacement is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1968 to June 1974, and from January 1975 to June 1991. The rating decision on appeal was issued in September 2019 under The Veterans Appeals Improvement Modernization Act of 2017 (AMA) review system. In February 2020, the Veteran timely appealed this rating decision to the Board and selected the Hearing option for this claim. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (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 August 2021 Board hearing. 38 C.F.R. § 20.302(a). In August 2021, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that based on the evidence of record, the Board has re-characterized the Veteran's claim of entitlement to service connection for right knee pain, more broadly as a claim of entitlement to service connection for a right knee condition status post total knee replacement. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Additionally, the Board notes that the Veteran has a pending appeal for entitlement to service connection for peripheral neuropathy of the right and left lower extremities. However, those claims were appealed under the legacy review system. Given such, the Board does not have jurisdiction at this juncture to review those claims, and those claims be subject of a separate Board decision. Lastly, the Board notes that the Veteran has another pending AMA appeal for entitlement to a rating in excess of 10 percent for service-connected residuals of gallbladder removal, as this claim was appealed in a separate appeal (a separate VA Form 10182) to the Board, this claim will be discussed in a separate Board decision. One of the effects of the AMA is to narrow the set of circumstances in which the Board must remand appeals to the AOJ for further development instead of immediately deciding them directly. Nevertheless, even under the AMA, the Board still has the duty to remand issues when necessary to correct a pre-decisional duty-to-assist error. See 38 C.F.R. § 20.802 (a). Regrettably, the Board finds that a remand is warranted to correct a pre-decisional duty-to-assist error. At the onset, under the AMA, the Board is bound by favorable findings by the AOJ in the absence of evidence of clear and unmistakable error. 38 C.F.R. § 3.104 (c). Here, in the September 2019 rating decision, the AOJ made a favorable finding that the Veteran submitted a statement indicating that his right knee pain was caused by the amount of physical training in service. Also, the AOJ made favorable findings that private treatment records showed a diagnosis of right knee arthroplasty, and a September 2019 VA examination report reflected diagnoses of right knee joint osteoarthritis and total knee replacement. The Board is bound by these favorable findings. More specifically, the Veteran contends that he had a total right knee replacement due to the physical training involved during his 22 years of service. He noted that he was a drill sergeant for almost four years, during which he often did physical training twice a day, plus marching the students back and forth. See July 2019 Statement in Support of Claim. In a September 2019 VA examination report for knee and lower leg conditions, the VA examiner noted a diagnosis of right knee joint osteoarthritis. The Veteran reported that he has had right knee pain for years and attributed his right knee pain to his physical training during active duty. The VA examiner opined that the Veteran's right knee osteoarthritis status post total knee replacement is less likely than not incurred in service. The rationale was that the Veteran's service treatment records are silent for a right knee condition. The VA examiner noted that weight bearing knee joints is related to the aging process and has a strong genetic component. Upon review, the Board finds that this opinion is inadequate for the following reasons. While the September 2019 VA examiner acknowledged that the Veteran had a total knee replacement, the VA examiner did not provide an opinion as to whether the Veteran's total knee replacement was the result of the Veteran's extensive physical training during his service. In fact, the VA examiner did not discuss the reason for the total right knee replacement at all. Furthermore, while the VA examiner noted the Veteran's contention that his physical training caused his current knee condition, the VA examiner did not discuss whether the Veteran's physical training played a role in the Veteran's development of right knee osteoarthritis. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that once VA provides and examination, it must provide an adequate one). Also, in Miller, the Court held that the duty to assist requires an examiner to "address the veteran's lay statements to provide the Board with an adequate opinion," in part because "medical opinions can inform credibility findings. See Miller v. Wilkie, 32 Vet. App. 249 (2020). Applying Miller, the Court explained in Smith, that because "medical opinions can inform credibility findings, the duty to assist may require the Board to obtain a medical examination before assessing the credibility of lay evidence." See Smith v. Wilkie, 32 Vet. App. 332 (2020). Given such, applying the Court's rulings in Miller and Smith, the Board finds that without consideration of the Veteran's lay statements that his extensive physical training during service, to include his time as a drill segreant, the September 2019 VA medical opinion of record, is inadequate. In sum, for the foregoing reasons, the Board finds that a remand for an addendum opinion is warranted to correct a pre-decisional duty-to-assist error. The matter is REMANDED for the following action: Obtain a medical opinion from a qualified VA medical professional to ascertain the nature and etiology of the Veteran's right knee condition status post total knee replacement. A full history should be obtained from the Veteran, including the two specific incidents of injury during service he discussed during his Board hearing. After reviewing the entire record, the examiner should provide an opinion responding to the following: Whether the Veteran's right knee condition status post total knee replacement, to include osteoarthritis, is at least as likely as not (probability of 50 percent or greater) the result of a disease or injury incurred in or aggravated by service. The examiner should discuss the Veteran's lay statements regarding the history and chronicity of symptomatology, to include the Veteran's ongoing reports of right knee problems. The VA examiner must discuss whether the Veteran's physical training during service, to include his almost four years as a drill segreant, where he would perform physical training twice a day, is related to the cause of the Veteran's right knee replacement and/or related to the Veteran's osteoarthritis. S/he should outline that history in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. The absence of evidence of treatment for symptoms related to the disability in the Veteran's available service treatment records and post-service records cannot, standing alone, serve as the basis for a negative opinion. Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.