Citation Nr: 21007364 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-63 486 DATE: February 9, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1963 to April 1966. In July 2019, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans Appeals (BVA) in January 2020 for additional development. It now returns for further appellate review. 1. Service connection Although further delay is regrettable, the Board finds a remand is warranted in order to obtain an addendum medical opinion because the August 2020 VA examination provides insufficient information to decide the claim. Pursuant to the January 2020 Board remand, the Veteran was provided a VA examination in August 2020. The VA examiner confirmed the Veteran’s diagnosis of right knee degenerative arthritis and status post total knee arthroplasty. See August 2020 VA Knee and Lower Leg Conditions DBQ. The Veteran reported that during active service he did a combat jump, which is a jump done with your rifle, backpack, your chute, and a pistol (see hearing testimony) and landed on his right side. He did not report injury. He also did 17 total jumps during active service. Id. The Veteran also noted that he began having problems with his right knee in 1968 while running or doing extensive exercises. The examiner opined that the Veteran’s current right knee disability was less likely than not incurred in or caused by the claimed in-service injury. See August 2020 VA Medical Opinion DBQ. The examiner reasoned that the Veteran’s right knee osteoarthritis and subsequent total knee replacement were diagnosed in September 2015, which is over four decades following active service. Id. She noted that the Veteran’s report of in-service symptoms were subjective only. She further stated there was “no chronicity or continuity of care for over 4 decades after service for osteoarthritis of the right knee condition.” Id. Finally, the examiner noted that onset of right knee condition “was not within one year of separation from service. Nexus cannot be established.” Id. Upon review, the Board finds that the August 2020 VA examiner while acknowledging the Veteran’s competent and credible lay statements, did not directly address the Veteran’s assertions that his current right knee disability was related to his in-service parachute jumps including two combat jumps and a total 17 jumps. The examiner also did not address the Veteran’s reports of having right knee pain in 1968 while running or doing extensive exercises. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (stating that a VA medical opinion lacks probative value when the examiner fails to address a veteran’s lay reports of his medical history and symptoms). Additionally, the Board finds that the August 2020 VA medical opinion did not provide sufficient rationale for her opinion. Specifically, the examiner stated that the Veteran’s right knee disability was not diagnosed until 2015, and because it did not have onset within one year from separation from service, “[n]exus cannot be established.” Although the examiner recites some facts, she did not explain the basis for her conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (A medical examination and opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). The Board also notes that the Veteran first reported right knee pain and weakness in June 2011 and was diagnosed with right knee degenerative joint disease. See June 2011 VA Primary Care Note and August 2011 VA Primary Care Note in CAPRI received March 2015. However, the Veteran also testified that he was treated for right knee complaints prior to 2011. The Veteran also reported that he visited a chiropractor for his disability. As such, the Regional Office (RO) should attempt to obtain private and VA treatment records prior to 2011 and treatment from the private chiropractor. The Board notes the claims file reflects that the Veteran has been receiving treatment from the Montgomery VA Medical Center (VAMC), to include the Tulsa Community Based Outpatient Clinic (CBOC), Muskogee VAMC, Salt Lake City VAMC, and that records dated through September 2020 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Obtain the Veteran’s comprehensive VA treatment records for the period prior to 2011, from September 2020 to the present, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers.  See 38 C.F.R. § 3.159(c)(3) (2020).  The Board observes that the Veteran has been treated at various VA facilities, to include Montgomery VAMC, Muskogee VAMC, Salt Lake City VAMC, Benjamin C. Steele Clinic, and Tulsa CBOC.  2. Contact the Veteran and inform him that current private treatment records to include records from a private chiropractor as well as private treatment records prior to 2011 should be submitted or the appropriate authorizations provided to VA so they can obtain them. If he provides the necessary release(s), assist the Veteran in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new evidence should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 3. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 4. Obtain an addendum opinion from a DIFFERENT VA EXAMINER THAN THE ONE WHO CONDUCTED THE AUGUST 2020 VA EXAMINATION with appropriate experience to render an etiology opinion for the Veteran’s right knee disability. • If the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination(s). Any clinically indicated testing and/or consultations should be performed. 5. The examiner must review the claims folder including this remand and acknowledge such review in the report.  Based on review of the August 2020 VA examination report and medical opinion, the examiner is requested to address the following: (a.) Assuming that the standard is at least as likely as not, is it possible that the Veteran’s current right knee disability could be related to the in-service injury from completing 17 parachute jumps including 2 combat jumps, or his right knee pain in 1968 while running or doing extensive exercises. See October 2020 Correspondence (SSOC Response). • THE EXAMINER MUST DISCUSS THE VETERAN’S LAY STATEMENTS REGARDING THE HISTORY, CHRONICITY, AND CONTINUITY OF SYMPTOMATOLOGY, TO INCLUDE THE VETERAN’S REPORT OF HIS IN-SERVICE INJURY. S/HE SHOULD OUTLINE THAT HISTORY IN THE REPORT.  (b.) Are the Veteran’s assertions that his current right knee disability was caused by his in-service injury from completing over17 parachute jumps including 2 combat jumps consistent with medical knowledge or implausible?  (c.) Do the Veteran’s reports about his symptoms or his in-service injury from completing over17 parachute jumps including 2 combat jumps align with how the Veteran’s right knee disability is known to develop?  (d.) Whether it is medically feasible that his current right knee disability was caused by his in-service injury from completing over 17 parachute jumps including 2 combat jumps i. If not, state why not and on what basis this conclusion was made.  ii. If so, state why and on what basis this conclusion was made.  • Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized.  • If the VA examiner(s) is/are unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.  6. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL.  IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED.  IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION.  (Continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, 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.