Citation Nr: 21007956 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 19-11 568 DATE: February 11, 2021 REMANDED The claim of entitlement to service connection for a right knee disability is remanded. The claim of entitlement to service connection for a left knee disability is remanded. The claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran, who is the Appellant in this case, had active service from November 1985 to July 1990, followed by several years of service in the U.S. Air Force Reserve, with periods of active duty for training (ADT) and inactive duty for training (IADT) until at least 1993. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from April 2017 and November 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Board remanded this case for further development. While the Board regrets the additional delay, for the reasons discussed below, another remand of the case is necessary prior to appellate review. 1. The claim of entitlement to service connection for a right knee disability is remanded. 2. The claim of entitlement to service connection for a left knee disability is remanded. In July 2020, the Board remanded the knee claims to obtain clarity regarding the Veteran’s dates of Reserve service and to obtain his service personnel and treatment records. Service personnel records were subsequently associated with the claims file (received September 24, 2020), and, while they do not provide complete clarity on the Veteran’s dates of Reserve service, they do show Reserve service through at least 1993. However, VA was unable to obtain any additional service treatment records from the Veteran’s period of Reserve service. The Board notes that some of his treatment records from Reserve service are included in his service treatment records (see, e.g., set of service treatment records received October 27, 2015, which include treatment notes from 1993 and 1994). However, his service treatment records remain incomplete, particularly from his period of Reserve service. In a case such as this, where service treatment records are unavailable, there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran was afforded a VA knee examination in November 2015. The VA examiner opined that the bilateral knee osteoarthritis, identified by x-ray study in 2013, was not etiologically related to active service, noting that the Veteran was diagnosed with a right knee strain during active service (in March 1989, per his service treatment records), but reasoning that there was no evidence of chronicity of knee problems in service and that there was no documentation of knee complaints after discharge from service until 2013. However, on an October 1993 Report of Medical History, completed as part of a periodic examination for Reserve service, the Veteran checked a box indicating that he had a trick or locked knee. Unfortunately, the full examination report is not available. In addition, private treatment records that were received subsequent to the 2015 VA examination demonstrate that November and December 1993 x-ray studies of the right knee were consistent with a history of acute trauma and an avulsion of the medial collateral ligament in the past. The 2015 VA examiner did not consider these 1993 records of knee problems in formulating his nexus opinion. Indeed, the opinion is based on an incorrect premise – that the Veteran did not report knee problems subsequent to his discharge from active duty in 1990 until 2013. Therefore, the Board finds that the 2015 VA knee examination is inadequate, as it is based on an incorrect factual premise, and that the Veteran should be afforded a new VA examination to address the question of whether the current knee disorders are related to active service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). Further, subsequent to the Board’s remand, service connection was granted for bilateral pes planus and bilateral foot degenerative arthritis, hallux valgus, and plantar fasciitis. In a February 2021 brief, the Veteran’s representative raised the contention that the claimed bilateral knee disorders could have been caused or aggravated by the now service-connected bilateral foot disabilities. Therefore, on remand, the VA examiner should also address the question of whether or not the claimed bilateral knee disabilities have been caused or aggravated by the service-connected foot disabilities. 3. The claim of entitlement to service connection for PTSD is remanded. In the July 2020 remand, the Board directed that the Veteran be afforded a VA PTSD examination, as the June 2020 VA mental disorders examination did not specifically address the question of whether the Veteran met the criteria for a diagnosis of PTSD or, if so, whether such diagnosis was etiologically related to active service. However, it does not appear that a VA PTSD examination was scheduled. Therefore, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). The matters are REMANDED for the following action: 1. Afford the Veteran the opportunity to attend a VA examination with an appropriate specialist addressing the nature and etiology of his bilateral knee disorders. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran’s current bilateral knee disorders were incurred during or caused by active service? The examiner should specifically address the in-service right knee strain in March 1989, as well as the October 1993 report of knee problems and November and December 1993 right knee x-ray studies. (b.) If the bilateral knee disorders were not incurred during or caused by active service, the examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran’s current bilateral knee disorders were caused or aggravated by his service-connected bilateral pes planus and/or bilateral foot degenerative arthritis, hallux valgus, and plantar fasciitis, to include as a result of any consequential gait disturbances? (c.) If the examiner finds that the bilateral knee disorders were aggravated by a service-connected disability, he/she should determine, if possible, to what extent they were aggravated beyond the natural progression of the disorder. Note: The term “at least as likely as not” does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term “aggravated” in the above context refers to a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Afford the Veteran the opportunity to attend a VA examination with an appropriate specialist to address the nature and etiology of his claimed PTSD. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should first determine whether or not the criteria for a diagnosis of PTSD are met and explain the basis for such determination. (b.) If the criteria for a PTSD diagnosis are met, the examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran’s PTSD was incurred during or caused by active service? The examiner should be aware that the Veteran has been awarded service connection for major depressive disorder. Note: The term “at least as likely as not” does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Sherrard, 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.