Citation Nr: 21009814 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-19 866 DATE: February 23, 2021 REMANDED Service connection for a right knee disability.   REASONS FOR REMAND The Veteran served on active duty from September 1974 to September 1977 and from October 1977 to July 1985. The character of service for the Veteran’s second period of active service was Under Other than Honorable Conditions. See DD 214. VA has determined that the Veteran’s service from October 1977 to October 27, 1981 was under honorable conditions and that he is entitled to VA benefits for that period of service and that the Veteran’s service from October 28, 1981 to July 1985 was under dishonorable conditions and that such constitutes a bar to VA benefits for that period of service. See January 1987 Character of Discharge Administrative Decision. The case is on appeal from a June 2012 rating decision. The Veteran initially requested a Board hearing on a May 2014 VA Form 9, but his representative subsequently withdrew this hearing request in March 2018. The Board previously remanded this claim in May 2018 and January 2020. Service connection for a right knee disability. Upon review, the Board finds that remand is required for multiple reasons. First, in the January 2020 Board remand, the Board stated that “as relevant service records in existence but unavailable at the time of the prior final rating decision have been obtained and added to the record, the provisions of 38 C.F.R. § 3.156(c) are for application” and that “the Board finds that there is a sufficient basis under provisions of 38 C.F.R. § 3.156(c) to reconsider the Veteran’s claims on the merits, and the receipt of new and material evidence is not required.” Subsequent to the Board remand, the RO issued an August 2020 supplemental statement of the case (SSOC). Inconsistent with the January 2020 Board remand, the SSOC required new and material evidence, as it was explicitly stated that “[t]he evidence received although new, is not material.” As such, the RO did not clearly consider the Veteran’s claim on the merits, which, as explained, the Board found was warranted in the January 2020 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (“a remand by…the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders”). The Board now finds that, under these circumstances, remand is required for the RO to properly consider the Veteran’s claim on the merits. See 38 U.S.C. § 7104 (“All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary”); Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010) (stating in the context of legacy appeals when the Board reopens a claim that the RO did not that “the matter generally must be returned to the [RO] for consideration of the merits. This is because the [RO] should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by” 38 U.S.C. § 7104); see generally Smith v. Wilkie, 32 Vet. App. 332, 337 (2020) (“The Board is obligated to ensure that it provides to appellants fair process in the adjudication of their claims”). Second, remand is also warranted to obtain outstanding VA treatment records. In this regard, in the May 2018 Board remand, a remand directive stated to “[o]btain the Veteran’s VA treatment records for the period from June 2012 to the present.” A June 2019 SSOC listed under the evidence heading VA treatment records from “June 2012 to the present” and such records were discussed in the reasons and bases section. While the RO appeared to have reviewed the referenced VA treatment records, such are not currently of record before the Board (i.e., they are not in the Veteran’s electronic claims file). In the January 2020 Board remand, a remand directive stated to “[o]btain available outstanding VA treatment records.” Subsequently, VA treatment records were associated with the electronic claims file, but such were only dated from June 2019 to July 2020. As such, records remain outstanding from June 2012 to June 2019. The RO accordingly failed to substantially comply with the prior Board remand directives discussed and remand is therefore warranted to associate with the electronic claims file the Veteran’s VA treatment records from June 2012 to June 2019. See Stegall, 11 Vet. App. at 271. While on remand, the Board also finds that any VA treatment records form July 2020 to the present must also be obtained. Third, the Board finds that remand is warranted to obtain a new VA opinion, as the prior VA opinions were not entirely sufficient. The January 2020 Board remand requested an opinion addressing direct service connection and the directives stated that “the examiner is asked to address the in-service right knee contusion that the Veteran sustained in 1974 as well as his competent assertions of right knee symptoms since service” and also that “[t]he examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so.” Overall, the Board remand directives indicated that the requested opinion was to address and consider the Veteran’s “competent assertions of right knee symptoms since service.” Two negative direct service connection VA opinions were obtained, in March 2020 and August 2020, and review of these opinions indicates that neither opinion clearly addressed and considered the Veteran’s “competent assertions of right knee symptoms since service.” With respect to the March 2020 VA opinion, for example, the concluding sentence of the provided rationale stated in part “based on the objective evidence located in the [V]eteran’s medical records and the current physical exam and diagnostics performed on the day of the physical exam.” This language indicated that the opinion was based on factors other than the Veteran’s lay evidence and it is thus not clear that the opinion addressed and considered the Veteran’s “competent assertions of right knee symptoms since service.” With respect to the August 2020 VA opinion, the rationale initially stated that “[s]tatements in support of claim are acknowledged and are considered to be credible.” The rationale went on to state multiple times, however, that the Veteran’s in-service right knee issues were “acute and transitory.” Such language is inconsistent with the Veteran’s “competent assertions of right knee symptoms since service,” as noted by the January 2020 Board remand. The Board also notes that the opinion referenced the Veteran having temporary restricted duty from December 1974 to January 1975 and that such “indicates condition was acute and transitory.” An STR submitted in May 2019 by the Veteran is a January 1975 Clinical Record Cover Sheet, which did note temporary restricted duty from December 1974 to January 1975. This STR also noted, however, that the Veteran was hospitalized for 40 bed days for a diagnosis of right knee contusion, which the Board observes seemingly reflects a condition that would not be characterized as “acute and transitory.” The August 2020 opinion, however, did not clearly discuss the Veteran’s in-service 40 bed day hospitalization related to his right knee and thus this issue remains unclear. The Board also notes that of record is an October 1985 statement from the Veteran, submitted as part of a claim filed in July 1985 for entitlement to service connection for a right knee injury, where the Veteran, essentially, reported various in-service treatment for his right knee after the 1974 hospitalization. This lay evidence was not addressed by the August 2020 opinion and is in conflict with the references to an “acute and transitory” condition. The Board further notes that the opinion stated that “[t]here is no evidence that Veteran sought medical attention for his condition within a year after separation from active duty” and that “[t]here is no evidence to indicate that he used any pertinent assistive device or took any pertinent medication on an ongoing basis from active duty to present.” Through this language, “it appears that the medical examiner impermissibly ignored the [Veteran’s] lay assertions” as to right knee symptoms since service, as noted by the January 2020 Board remand. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). The Board additionally notes that the opinion cited medical records for another veteran that were improperly associated with the Veteran’s electronic claims file. In this regard, the opinion noted the Veteran’s statement on a July 2014 Form 9 that “[t]hey said that [I] had bruised my knee and would have to keep draining” and the opinion stated that “which in my opinion, could represent effusion; however, there is no evidence to indicate that Veteran had continued effusion.” Two cited medical records in support of this conclusion were VA treatment records that were for another veteran. Overall, for the reasons outlined, the Board finds that the March 2020 and August 2020 VA opinions were not entirely sufficient and that remand is accordingly required to obtain a new VA opinion, as outlined further in the remand directives below. The matters are REMANDED for the following action: 1. Associate with the electronic claims file all outstanding VA treatment records, which specifically includes from June 2012 to June 2019 and from July 2020 to the present. 2. Obtain an opinion from a medical professional that addresses the Veteran’s right knee disability claim. If the medical professional determines that additional examination of the Veteran is necessary to provide an adequate opinion, such examination must be scheduled. The medical professional must provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that a right knee disability had its onset during, or is related to an in-service injury, event, or disease during the honorable portion of the Veteran’s service (September 1974 to October 1981). In expressing this opinion, the medical professional is asked to address the in-service right knee contusion that the Veteran sustained in 1974 as well as his competent assertions of right knee symptoms since service. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide medical reason for doing so. A rationale for all requested opinions shall be provided. The medical professional’s attention is specifically invited to: (a.) A January 1975 STR Clinical Record Cover Sheet, which noted that the Veteran was hospitalized for 40 bed days for a diagnosis of right knee contusion. (b.) The Veteran’s October 1985 statement, submitted as part of a claim filed in July 1985 for entitlement to service connection for a right knee injury, where the Veteran, essentially, reported various in-service treatment for his right knee after the 1974 hospitalization. (c.) A March 2012 VA Treatment Record, which noted chronic knee pain with an onset in 1974, and a March 2020 Knee and Lower Leg Conditions DBQ, which stated that the “Veteran reports while in basic training on the obstacle course he injured his right knee…He reports since the time of injury he reports his knee has gotten progressively worse with increased pain and decreased range of motion.” 3. After completing the requested actions, readjudicate the claim on the merits. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.