Citation Nr: 21005517 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-50 296 DATE: February 1, 2021 REMANDED Service connection for a left knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to October 1970 and from October 1970 to June 1975. The Veteran testified before the undersigned Veterans Law Judge at a hearing in February 2020; a copy of the transcript is of record. The Board previously remanded this matter in April 2020. At the outset, the Board notes that in November 2020 the Veteran and his former representative, Veterans of Foreign Wars, were notified of this issue being returned to the Board after completion of remand instructions and readjudication. In that letter, the Veteran was notified that he had 90 days from the mailing of the letter to change his representation pursuant to 38 C.F.R. § 20.1304. In December 2020, the Veteran submitted to the Board a change in representation form, signed by both himself and a representative of The American Legion. See December 31, 2020, Form 21-22. The Veteran also concurrently submitted a Statement in Support of Claim stating that he wished to change his representation to The American Legion. In January 2021, The American Legion submitted a statement which indicated that the appointment of The American Legion was in violation of § 20.1304(b), as good cause was not shown why the Veteran was allowed to change his representation. There is no indication the Veteran was provided a copy of this statement or notified by The American Legion that his selection of The American Legion as his representative was being denied. The Veteran changed his representation pursuant to § 20.1304(a) which allows for representation change within 90 days of notification that a claim has been submitted to the Board, as is indicated in the November 2020 letter sent to the Veteran. Thus, the provisions of § 20.1304(b) are inapplicable in this matter. As it stands, the Veteran has submitted a fully executed and timely Form 21-22 which elects The American Legion as his representative. The Board advises The American Legion to communicate with the Veteran to resolve the matter of its representation of the Veteran. Left Knee In its prior remand, the Board directed that a VA examination of the Veteran’s left knee take place. The examination occurred in October 2020. However, the Board finds that the examination is inadequate for adjudication purposes. The examiner provided erroneous and conflicting statements about the Veteran’s diagnosis, treatment, and symptomology – stating he had knee replacement surgery in 1973 (his surgery occurred in 2015), noting he had arthritis in 1973 (which is not supported by the record), and found the Veteran had left knee pain related to his claimed condition, but then stated that he had no diagnosis related to his left knee. While the Board regrets additional delay, a new examination is required. The matter is REMANDED for the following action: Schedule the Veteran for an examination by a physician (M.D.) who has not previously examined him to determine the nature and etiology of any diagnosed left knee disorder. The claims file should be made available to the examiner for review. The examiner is asked to identify any and all diagnosed left knee disabilities. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any such diagnosed left knee disability was incurred in, or due to, the Veteran’s service. The examiner is specifically asked to note that the Veteran was involved in a motorcycle accident while in-service and that the Veteran participated in parachute fall training while in-service. The Veteran’s lay statements regarding onset and continuity of symptomology, specifically his February 2020 hearing testimony and any other statements of record, should be recorded and considered. A rationale for all opinions must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.