Citation Nr: 21006756 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 15-38 921A DATE: February 5, 2021 REMANDED Entitlement to service connection for right knee degenerative joint disease is remanded. Entitlement to service connection for left knee degenerative joint disease is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from October 1969 to July 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). In June 2019, the Board denied the Veteran’s petition to reopen a service connection claim for a left knee cyst and denied claims for service connection for right knee degenerative joint disease (DJD) and left knee DJD. The Veteran appealed the denial of all claims in the Board’s June 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Court granted a Joint Motion for Partial Remand (JMPR), remanding the issues of service connection for right knee DJD and left knee DJD, and agreeing to the dismissal of the appeal of the Board’s denial of the Veteran’s petition to reopen the left knee cyst claim. The JMPR represents agreement between the parties (the Veteran and VA Office of General Counsel) that the Board erred by relying on an August 2014 VA medical opinion that is contradictory and therefore inadequate. Specifically, the JMPR reflects that the August 2014 examiner opined that the Veteran’s right and left knee DJD is related to natural aging of the joints and that the right and left knee DJD clearly and unmistakably existed prior to service. See Joint Motion for Partial Remand dated July 30, 2020 at pgs. 2. Additionally, the parties agreed that the Board erred by finding that the Veteran’s knee problems began in 2014 without discussing the Veteran’s statements that his knee symptoms began many years earlier. Id. at pg. 3. Pursuant to the JMPR, the Board sent the Veteran and his representative notice that he could submit additional evidence and argument in support of his appeal within 90 days of the date of the notice. See Board letter dated September 1, 2020. Thereafter, the Veteran submitted additional evidence consisting of a privately obtained knees examination and knee x-rays report dated September 2020 as well as a waiver of the remaining 90-day period for submission of evidence and argument. See Correspondence from Veteran dated October 9, 2020. The Board observes that the September 2020 private knee examination reflects the Veteran’s request for a favorable medical opinion regarding service connection for his right and left knee DJD; however, the examination does not include an opinion and the Veteran did not separately submit an opinion. Accordingly, on remand the Veteran should be afforded a VA examination. Additionally, VA must obtain an etiology opinion and any outstanding records relevant to the Veteran’s knee disabilities. 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c). The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, schedule the Veteran for a VA knee examination from an appropriately qualified VA clinician as to the nature and etiology of the Veteran’s right and left knee degenerative joint disease (DJD). The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed right and left knee DJD onset during service, manifested within one year after service separation, or is otherwise etiologically related to service. (b) If the answer to (a) is negative, provide an opinion as to: (i) whether the right and left knee DJD CLEARLY and UNMISTAKABLY preexisted service, and, if so; (ii) whether such preexisting right and left knee DJD CLEARLY and UNMISTAKABLY was NOT aggravated by service. * The answer to EACH question in (b) above, as determined by the examiner, MUST include the phrase “clearly and unmistakably” in order to satisfy the requisite standard of proof. See Cotant v. Principi, 17 Vet. App. 116, 132 (the standard of proof for rebutting the presumption of soundness is evidence that is “clear and unmistakable”). Although the examiner must review the entire claims file, the examiner is requested to consider the following potentially relevant, which is identified by VBMS labels and receipt dates in parenthesis. (i) July 7, 2014 VA primary care physician H&P note reflecting that the Veteran reported having right knee pain since December 2013 (see VBMS entry with document type “CAPRI,” receipt date 11/24/2014, at PDF page 2 of 138); (ii) September 18, 2015 addendum to VA rehabilitation medicine clinic note reflecting that the Veteran reported having right knee pain for over 50 years (see VBMS entry with document type “CAPRI,” receipt date 11/02/2015, at PDF page 2 of 182); and (iii) Appeal to Board of Veterans’ Appeals (VA Form 9) received November 27, 2015 reflecting the Veteran’s assertion that he injured both knees in service and has had knee issues constantly since service (see VBMS entry with document type “Form 9,” receipt date 11.27/2015). *The Board’s reference to evidence in this context should not be construed as a determination of its credibility. The examiner should provide a complete rationale for each opinion. 3. After completing any additional development deemed necessary, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Farrell, Bradley 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.