Citation Nr: 21006572 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-31 909 DATE: February 4, 2021 REMANDED Entitlement to service connection for left knee condition, to include left knee degenerative joint disease status post total knee arthroplasty, is remanded. Entitlement to service connection for right knee condition, to include right knee degenerative joint disease, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1968 to June 1970 and September 1970 to September 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter has previously appeared before the Board in April 2018, August 2019 and July 2020 at which time the issues were remanded to obtain pertinent treatment records and adequate examination opinions. After a review of the September 2020 examination and subsequent October 2020 addendum opinion, the Board finds that remand is again warranted for further development. 1. Entitlement to service connection for left knee condition, to include left knee degenerative joint disease status post total knee arthroplasty is remanded. 2. Entitlement to service connection for right knee condition, to include right knee degenerative joint disease is remanded. After the July 2020 Board remand, the Veteran underwent a VA examination in September 2020, as noted above. Records were directed to be obtained in the July 2020 Board remand but were not associated with the claims file prior to the September 2020 examination. Nonetheless, the examiner provided an unfavorable opinion, rationalizing that the Veteran’s bilateral knee degenerative change is a new and separate nonservice-related condition associated with age. The examiner found that the majority of evidence does not suggest a nexus link between the Veteran’s current bilateral knee condition to military service, therefore it is less likely than not due to, caused by, or incurred during military service or activities or incidents in service, nor did any in-service injury or event accelerate the onset of the knee disabilities. After the examination, VA obtained VA medical records from July 1999 to November 2002 in October 2020. As such, an addendum opinion was obtained later in October 2020. However, the same examiner noted that the additional treatment records unequivocally do not change the September 2020 medical opinion and the medical opinion remains as written. The Board first notes that the foundation of the September 2020 and October 2020 rationalization appears to be based on the Veteran’s documented medical history and lack of documented symptoms. For instance, within the rationalization, although the examiner noted that the while deployed in Germany in 1971, the Veteran injured his right knee and was diagnosed with traumatic synovitis, the examiner then noted that the Veteran’s July 1973 military separation examination and report of medical history indicate no abnormal knee condition. The examiner’s comment, however, does not adequately address the Veteran’s in-service injury and would require the Board to impermissible make its own inference regarding whether the Veteran’s in-service right knee symptomatology resolved prior to his discharge. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is not competent to substitute its own opinion for that of a medical expert). Moreover, the examiner’s analysis lacks reasoned medical explanation. This is evidenced by the method in which the examiner addressed the Veteran’s October 2010 statement that he injured his knees during service, experienced swelling that would go down and he would not seek medical attention because he did not think it was serious. Illustratively, the examiner remarked that the etiologies of this condition is a complex medical question not capable of lay observation, and the Veteran has not demonstrated the knowledge or skill to assess such condition, and therefore, he is not competent to provide an opinion as to if the etiology of the knee condition. While such may be true, the Board finds that such response does not take into consideration the symptoms experienced as they relate to the current disability as opposed to the Veteran’s belief. The absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, the Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Thus, the Board finds that the opinion is inadequate as it fails to provide a reasoned medical explanation. Additionally, the Board notes that a claimant must cooperate fully with VA’s reasonable efforts to obtain relevant records. 38 C.F.R. § 3.159(c). The record reflects that the Veteran had total knee arthroplasty in December 2009 performed at a VA medical center and another in February 2017, which the record reflects was performed by Dr. DeHaan, the Veteran’s orthopedist. The Board’s prior remands allowed for the Veteran to provide authorization in order for VA to assist him in obtaining potentially relevant records. One request was made by the RO in August 2020, which the Veteran failed to provide authorization to obtain such records nor did he provide copies of the records themselves. Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000). However, as the record reflects that there has been only one request for authorization, the Board finds that an additional documented attempt is appropriate before adjudication in light of reasons noted above. The matters are REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain VA and non-VA medical records related to the Veteran’s claims on appeal, to include, but not limited to medical records from Dr. DeHaan. All attempts to obtain these records must be documented in the claims file. The RO should follow the procedures for obtaining the records set forth by 38C.F.R. §3.159(c). If the VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38C.F.R. §3.159(e). 2. After the above development is complete, obtain an opinion from a physician with sufficient expertise, who has not previously provided an opinion in this matter, to determine the nature and etiology of the Veteran’s bilateral knee disability. If the examiner determines a new VA examination should be completed, then an in-person examination may be scheduled if the examiner deems it necessary or may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should be provided the claims file to include the Veteran’s October 2010 statement. The examiner should state whether s/he has reviewed the file. The examiner should address the Veteran’s complaints of knee pain and/or injury while in service and subsequent symptomatology and October 2010 statement. The examiner should consider any body habitus changes, to include obesity caused by the Veteran’s service-connected disabilities, altered gait, and use of assistive devices due to the disability of the opposite knee. The examiner should opine: (a) Whether it is at least as likely as not (50 percent probability or more) that the diagnosed disabilities were caused by activities or incidents in service, to include whether any in-service injury or event accelerated the onset of the Veteran’s current knee disabilities. (b) Whether it is at least as likely as not (50 percent probability or more) that the diagnosed disabilities were caused or aggravated by the disability of the opposite knee. In providing the requested opinions, the examiner must consider the Veteran’s lay statements regarding the onset and progression of the claimed disabilities. The examiner is also asked to reconcile any conflicting evidence of record. The examiner must provide detailed rationale for all opinions rendered. (Continued on the next page) 3. The Agency of Original Jurisdiction must review the claims file and ensure that the foregoing development has been completed IN FULL. If any development is incomplete or any opinion not responsive to all of the aspects of the above directive, undertake corrective action BEFORE returning the case to the Board for further appellate review. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.