Citation Nr: 21011489 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-11 089A DATE: March 2, 2021 REMANDED Entitlement to service connection for a right knee disability, status post right knee replacement, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 1970 to November 1971. As pertinent to the present appeal, in a January 2018 decision, the Board remanded the issue of entitlement to service connection for a right knee disability. See January 2018 Board Decision. The case returned to the Board in August 2019, at which time the Board, in pertinent part, denied the claim for service connection for a right knee condition. See August 2019 Board Decision. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court/CAVC). Pursuant to a September 2020 Joint Motion for Partial Remand (JMPR) filed by the parties, the Court vacated the Board's August 2019 decision and remanded the Veteran's claim for service connection for a right knee disability back to the Board for additional development and adjudication consistent with the terms of the JMPR. See September 2020 JMPR; October 2020 CAVC Order. The issue has thus returned to the Board. 1. Service connection for a right knee disability, status post right knee replacement, is remanded. In the September 2020 JMPR, the parties determined that the February 2018 VA medical opinion concerning the etiology of the Veteran’s right knee condition was inadequate. See September 2020 JMPR; February 2018 VA Medical Opinion Disability Benefits Questionnaire (DBQ). In particular, the JMPR noted that, in finding that the record did not reflect any evidence of an in-service injury to the Veteran’s right knee, the examining VA clinician failed to address the Veteran’s “October 2012 complaints that he injured his knee while banging [it] against lockers in service, or his December 2011 statement that he injured his knee during falls in basic training.” See id. Accordingly, the JMPR instructed that “[r]emand [wa]s required for a new VA examination with an adequate medical opinion that considers and discusses [the Veteran’s] lay complaints of in-service right knee injuries.” See September 2020 JMPR. Accordingly, given the directives of the September 2020 JMPR, remand is required. See id. See, too, Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Send a letter to the Veteran requesting that he identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claim. He should be invited to submit this evidence himself or to request VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with file. At least two such efforts should be made unless it is clear that a second effort would be futile. If attempts to obtain any records identified by the Veteran are not successful, he must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 3. After completion of the above development, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his right knee disorder. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a full history from the Veteran. The examination should include any necessary diagnostic testing or evaluation. After eliciting a full history from the Veteran, conducting a complete review of the claims file (including all available private and/or VA medical treatment records), performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner should diagnose and describe in detail all current right knee disorders found to be present. As to each right knee disorder identified on examination or diagnosed during the pendency of the claim, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such condition had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing these requested opinions, the examiner should note that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. Additionally, the examiner must consider and address the lay evidence of record concerning the Veteran’s in-service injuries to his right knee, including specifically the October 2012 Statement in Support of Claim (VA Form 21-4138) reporting repeated trauma to his right knee during his active service with “the Army’s ceremonial unit,” and the December 2011 Statement in Support of Claim (VA Form 21-4138) describing in-service injuries to his right knee during basic training and the post-service continuity of his right knee symptoms. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. Moreover, if an opinion cannot be provided without resorting to speculation, the examiner must state why this is the case and what, if any, additional evidence would be necessary before an opinion could be rendered. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means 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 that conclusion as it is to find against it. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. McCabe, 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.