Citation Nr: 21007000 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-14 458 DATE: February 8, 2021 REMANDED Entitlement to service for arthritis of the right knee is remanded. Entitlement to service for arthritis of the left knee is remanded. REASONS FOR REMAND The Veteran served on active duty from September 23, 1985, through February 27, 1994, and from February 28, 1994, through December 4, 2006. He is eligible to receive benefits only for the period of service from September 1985 to February 1994. This matter is before the Board of Veterans’ Appeals (Board) on appeal of the July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In January 2018, the Board remanded the issues on appeal for additional development. In November 2018, the Board issued a decision denying entitlement to service connection for bilateral knee arthritis. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court vacated the November 2018 Board decision and remanded the issue for further consideration consistent with the Court’s decision. The Veteran was honorably discharged from his first period of active duty service and dishonorably discharged from his second period of active duty service. Pursuant to a final, unappealed April 2010 VA administrative decision, the Veteran is only eligible for VA benefits for his period of honorable service beginning on September 23, 1985 and ending on February 27, 1994. A statutory bar to benefits under 38 U.S.C.§5303(a) exists for his period of service beginning on February 28, 1994 and ending on December 4, 2006. The Board acknowledges that the Veteran’s complete service treatment records are not available through no fault of his own; specifically, service treatment records dated 1991 through 1993 were determined to be unavailable. The Agency of Original Jurisdiction notified the Veteran of this in letters dated August and September 2010. In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule where applicable. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). 1. Entitlement to service for arthritis of the right knee is remanded. 2. Entitlement to service for arthritis of the left knee is remanded. In his July 2010 claim for compensation benefits, the Veteran claimed service connection for bilateral arthritis of the knees, which he indicated began in 1990. Specifically, the Veteran claims that during his first period of active duty service that he suffered trauma to his bilateral knees, which he believes caused his currently diagnosed bilateral knee arthritis. In May 2017, the Veteran testified at a Board hearing that in approximately November 1989, while riding as tank commander during a practice maneuver, he was tossed from his seat and hit his bilateral knees on the back of the gunner seat. He asserted that this caused damage to his kneecaps, cartilage, and ligaments. He stated that he sought medical attention during service in 1995 and that he sought medical attention with his local VA Medical Center, where he received his braces. When questioned if he was given a diagnosis, the Veteran replied, “same thing that back in the day they gave me, arthritis in the knee.” When asked why he felt that service connection was warranted he replied, “because it all happened again in the Gulf War.” At a March 2018 VA examination, the examiner diagnosed the Veteran with degenerative arthritis of the bilateral knees. The Veteran reported injuring his knees in 1991 or 1992 while on active duty. He stated he was in a tank which went over a cliff and that he hit his knees on the sharp edge of the gunner’s seat in front of him. He denied seeking a medical evaluation at that time. He stated that in 1997 he went to see a doctor because he could not run and was in pain all the time and that he was provided with knee braces and pain killers. He denied a history of any other injuries to his knees, denied history of occupational post-military overuse of his knees, and indicated that he separated from active duty in 2006 and had not worked since then. The March 2018 VA examiner considered the medical and lay evidence of record and determined that it was less likely than not (less than 50 percent probability) that the Veteran’s current bilateral knee disability was related to his active service, reasoning, in part, that the objective medical evidence did not demonstrate a persistent disability in service and that the reported bilateral knee injury during the Veteran’s active service (when he hit his knees into the gunner seat when the tank he was in, went over a cliff) would not be expected to result in a chronic bilateral knee condition or residuals. However, the examiner did not comment or address the Veteran’s contention that he was diagnosed in 1989 and in 2005 with bilateral knee arthritis. The Board cannot make a fully informed decision on the issue of entitlement to service connection for bilateral knee arthritis, without obtaining an addendum opinion addressing the lay testimony. Thus, a remand is necessary to obtain an addendum opinion to determine if there is a basis to grant service connection for the Veteran’s bilateral knee arthritis. The matter is REMANDED for the following action: 1. If possible, return the Veteran’s complete record, to include a copy of this remand, and the claims folder to the examiner who reviewed the file and provided the March 2018 medical opinion hereinafter “examiner,” for an addendum opinion. If it is not possible to obtain clarification from the examiner, then forward the Veteran’s claim file to another appropriate medical professional who has the requisite experience to render the requested medical opinions. No examination of the Veteran is necessary unless the examiner deems otherwise. 2. Obtain an addendum opinion from the examiner to determine the nature and etiology of any bilateral knee disorder. The examiner must review the expanded record and determined if it is at least as likely as not (50 percent or greater probability) that any of the Veteran’s diagnosed knee disorders, are etiologically related to any in-service injury, event, or disease? 3. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. Specifically, although the Board has not yet made a credibility determination, the examiner must note and address that the Veteran stated that: (a.) He was given a bilateral knee arthritis diagnosis prior to 2005 (“back in the day”). (b.) In 2005 the examiner reportedly gave him a bilateral knee arthritis diagnosis. (c.) The March 2018 VA examiner stated that the reported bilateral knee injury during the Veteran’s active service (when he hit his knees into the gunner seat when the tank he was in went over a cliff) would not be expected to result in a chronic bilateral knee condition or residuals, but did not explain, what would be expected. (d.) The Veteran contends the March 2018 VA examiner provided no etiology of the origin of the Veteran’s disability. 4. The examiner should give a detailed explanation for the reasons for the opinion(s) provided. The medical reasons for accepting or rejecting the Veteran’s theories of entitlement should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 289 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained). 5. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 6. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.