Citation Nr: 21007665 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 09-27 741A DATE: February 10, 2021 REMANDED The issue of entitlement to service connection for bilateral knee disabilities is remanded. REASONS FOR REMAND The Veteran had active duty for training (ACDUTRA) from April 1985 to September 1985, and active duty from January 1991 to March 1991. Pursuant to a joint motion for partial remand (JMPR) filed by VA and the Veteran, in September 2020 the Court of Appeals for Veterans Claims (CAVC) vacated a portion of the Board’s August 2019 decision and remanded it to the Board for compliance with its instructions. Before the CAVC, the parties agreed that with regard to the Veteran’s right knee, the Board did not adequate explain the conclusion that the Veteran had a preexisting right knee condition that was not aggravated during active duty. With regards to the Veteran’s left knee, the parties agreed that the Board did not adequately consider whether functional impairment caused by pain alone constituted a disability that could be service-connected. Pursuant to the JMPR, the matter is remanded for further development. Service connection for bilateral knee disabilities is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR RO ADJUDICATOR: This is a remand pursuant to the Court’s vacatur and remand noted above. 2. Obtain the May 2020 bilateral knee x-ray imaging report referenced in the June 2020 VA notation at the Muncie, Indiana, VA medical center (VAMC), and ensure the report is given to the VA examiner prior to the Veteran’s bilateral knee examination noted below. See “CAPRI,” received July 2, 2020, page 1 of 118. 3. Request the Veteran identify and secure any relevant private medical records that are not in the claims file. If the Veteran identifies private records, following the securing of the appropriate waivers, make all appropriate attempts to locate such records and to associate them with the claims file. If the Veteran has no further evidence to submit, or, if after exhaustive efforts have been made, no records can be identified, so annotate the record. 4. Schedule the Veteran for an appropriate VA examination, consistent with VA rating protocols, to determine the nature and etiology of any right and/or left knee conditions. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. An explanation should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: a) Is there clear and unmistakable evidence that the Veteran entered service with a preexisting right knee condition? a. If the Veteran entered service with a preexisting right knee condition, is there clear and unmistakable evidence that his preexisting right knee condition was not aggravated beyond the natural progression of the condition? b) If the Veteran did NOT demonstrate a preexisting right knee disability, were any of the Veteran’s current right knee diagnoses incurred in service or caused by an in-service injury, event or illness? c) Does the Veteran demonstrate a clinical diagnosis of a current left knee condition? a. If yes, was any left knee diagnosis incurred in service or caused by an in-service injury, event or illness? b. Also, if yes, are any of the Veteran’s left knee diagnoses proximately due to or aggravated (e.g. worsened, and if so, to what degree) by the Veteran’s right knee diagnoses? c. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. d) If the Veteran does NOT demonstrate a clinical diagnosis of a current left knee condition, does the Veteran’s left knee pain result in functional impairment? If so, the examiner MUST describe the functional impairment in terms of the Veteran’s ability to perform activities of daily living, to include occupational tasks. a. If yes, was the Veteran’s left knee functional impairment incurred in service or caused by an in-service injury, event or illness? b. Also, if yes, was the Veteran’s left knee functional impairment proximately due to or aggravated (e.g. worsened, and if so, to what degree) by any of the Veteran’s right knee diagnoses? c. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED BECAUSE OF THIS REMAND, the VA examiner’s attention is drawn to the following: * The April 1985 enlistment report of medical history indicated the Veteran denied “trick” or locked knee. His clinical musculoskeletal and lower extremity evaluations were clinically normal. * The May 1989 report of medical history indicated he denied “trick” or locked knee. An examiner noted the Veteran reported breaking his knee in a motorcycle accident when he was in grade school. The examiner noted the Veteran demonstrated full range of motion (ROM) and strength, no problems with edema or pain, and that the Veteran would be able to perform physical training. His routine examination indicated clinically normal musculoskeletal and lower extremity evaluations. See “STR – Medical,” received October 19, 2010, page 11 of 43. * The March 1991 report of medical history prior to separation indicated the Veteran denied “trick” or locked knee. His clinical musculoskeletal and lower extremity evaluations were normal. * Treatment records indicate the Veteran experienced a motor vehicle accident (MVA) in either 1998 or 1999 that resulted in a lumbar spine injury and chronic lumbar pain. See “Medical Treatment Record – Government Facility,” received June 29, 2001, page 4 of 53. * August 2000 physical therapy consultation notes indicate the Veteran demonstrated bilateral knee extension at 50 percent. See “CAPRI,” received February 28, 2013, page 694 of 706. * April 2011 VA treatment records indicate a physical therapist examiner conducted a physical examination to evaluate the Veteran’s overall functional capacity for employment after a traumatic brain injury (TBI). With regards to knee functionality, the examiner noted the Veteran demonstrated modified independent mobility; occasional crouching/squatting capacity; occasional stair-climbing capacity; occasional crawling capacity; and an inability to kneel. See “CAPRI,” received February 28, 2013, pages 112-114 of 706. * VA treatment records indicate the Veteran regularly undergoes pain management consultations to manage his prescriptions for bilateral knee and lumbar spine pain. * In a December 2014 primary care appointment, his musculoskeletal evaluation indicated fair knee range of motion. The examiner assessed the Veteran with chronic pain syndrome, to include knee pain. See “CAPRI,” received January 2, 2015, page 5 of 244. * September 2016 Board hearing testimony, when the Veteran described his pre-service broken right knee injury, his contention that service aggravated his preexisting right knee condition, and that his left knee condition is secondary to his right knee condition. See “Hearing Testimony,” received September 7, 2016. * November 2016 x-rays of the Veteran’s bilateral knee revealed no significant degeneration, no significant soft tissue abnormality, and no acute osseous injury. See “CAPRI,” received March 21, 2017, page 46 of 103. * VA treatment records indicate the Veteran underwent bilateral knee imaging in May 2020. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED, AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 5. Following the review and any additional development deemed necessary, readjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claim to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.