Citation Nr: 21011003 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 12-03 357 DATE: February 26, 2021 REMANDED Service connection for a bilateral knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1982 to August 1992. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction over the appeal was subsequently transferred to the VA RO in Atlanta, Georgia. The Veteran testified before the undersigned Veterans Law Judge in a July 2015 videoconference hearing. A copy of the hearing transcript has been associated with the record. The appeal was previously before the Board in January 2016 and was remanded for a VA examination, which was obtained in December 2016. The appeal was returned to the Board and was again remanded in June 2018 for VA examination after finding that the December 2016 VA examination relied on the absence of medical documentation in rendering a negative nexus opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). A VA examination and medical opinion was obtained in April 2019, and the Board denied service connection for a bilateral knee disability in a December 2019 decision. The Veteran appealed the Board’s December 2019 decision as to the issue of entitlement to service connection for a bilateral knee disability to the United States Court of Appeals for Veterans Claims (Court). By Order dated in September 2020, the Court granted a Joint Motion for Partial Remand (Joint Motion), vacating the Board’s decision as to this issue and remanding the matter to the Board for further proceedings consistent with the Joint Motion. Specifically, the parties agreed that the April 2019 VA examination contained internal inconsistencies and a new VA knee examination was required. Service connection for a bilateral knee disability Per the September 2020 Joint Motion, the Board finds that remand is necessary for a VA examination to determine the nature and etiology of a bilateral knee disability. When VA undertakes to provide an examination, it must ensure that the examination and opinions provided are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Pursuant to VA’s duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159 (c)(4)(i) (2019). Here, the April 2019 VA examination contained internal inconsistencies in rendering a medical opinion and the language employed made it unclear whether the examiner was referring to the right or left leg in their discussion. Therefore, on remand, the Board finds, specifically per the September 2020 Joint Motion, that the Veteran must be afforded a new VA examination. The matters are REMANDED for the following action: 1. The AOJ should refer the case to an appropriate examiner for VA examination to determine the etiology of the Veteran’s bilateral knee disability. The electronic claims file must be made available to, and be reviewed by, the examiner. The examiner must note such review in the examination report. All indicated tests should be accomplished, and all clinical findings should be reported in detail. The examiner is requested to determine whether it is at least as likely as not (a 50 percent or greater probability) that currently diagnosed arthritis of the bilateral knees, to include diagnosed patellofemoral syndrome of the left knee, were incurred in or caused by active service. For diagnosed arthritis, the examiner is asked to determine whether arthritis manifested within one year of service separation, or whether the Veteran had continuous symptoms of arthritis since service separation. The Veteran’s statements as to continuity of symptomology must be considered. The term “at least as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner must provide a complete explanation for his/her opinion(s), based on his/ her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 2. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. R. Woodarek 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.