Citation Nr: 21005878 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-20 883 DATE: February 2, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1975 to March 1990. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board denied service connection for a right knee disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court granted a Joint Motion for Partial Remand (JMR) requesting vacatur and remand of the Board’s decision. Service connection for a right knee disability The June 2020 JMR found that the Board erred by relying on an inadequate VA examination and by failing to provide an adequate statement of reasons and bases regarding potentially outstanding relevant records. Specifically, the parties to the Joint Motion agreed that the June 2019 Board decision erred by relying on the inadequate September 2013 VA examination. The September 2013 examiner failed to provide an adequate rationale for the provided opinion, as the examiner indicated that there were no right knee complaints in the Veteran’s service treatment records (STRs) that could be connected to his current diagnosis of right patellofemoral degenerative joint disease. In providing this opinion, the examiner only addressed a handful of the Veteran’s in-service complaints of right knee pain and failed to explain how the other documented right knee complaints could not be related to his current diagnosis. As the only VA examination of record is inadequate, a remand is warranted to obtain an adequate VA examination addressing the nature and etiology of the Veteran’s right knee disability. This examination must include an opinion that addresses the Veteran’s documented right knee complaints, including pain of this joint, in his STRs. The parties also agreed that the Board failed to provide an adequate statement of reasons and bases regarding potentially outstanding relevant records. In particular, at the September 2013 VA examination, the examiner acknowledged that the Veteran was diagnosed with degenerative joint disease by a private doctor in 2004. The parties to the Joint Motion agreed that the record did not contain the requisite notice to the Veteran regarding private records (which are not contained within the claims file) and that the Board erred by failing to discuss VA’s duty to assist related to these potentially outstanding private records. Upon review of the record, the Board finds that a remand is required to allow VA to obtain authorization and to request any identified records. In accordance with the JMR and Court order, the Board remands this issue to accord the Veteran a new (and adequate) VA examination to determine the nature and etiology of his right knee condition and to identify and obtain any outstanding private treatment records. Accordingly, this matter is REMANDED for the following action: 1. Identify and obtain any outstanding private treatment records—particularly the 2004 private records referenced by the Veteran at the September 2013 VA examination—and associate them with the claims file. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records 2. Then, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of any right knee disability he may have. The examiner should have access to, and an opportunity to review, the Veteran’s claims file in conjunction with the examination. All necessary testing should be completed. Following review of the claims folder, and an interview with and examination of the Veteran (including any testing or studies deemed necessary), the examiner should: a. Identify/diagnose any right knee disability(ies) that presently exists or that has existed during the appeal period. b. Opine whether it is as likely as not (a 50 percent probability or greater) that any such diagnosed right knee disability onset in the Veteran’s service or is otherwise etiologically related to such service. In expressing this opinion, the examiner should address the Veteran’s contention that his right knee disability began in service, as documented by the in-service complaints of right knee problems, as well as his reports of continued right knee symptoms, including, pain since that time. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.