Citation Nr: 21012462 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-01 208 DATE: March 4, 2021 REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1968 to July 1971. The Veteran appeals the denial of service connection for a left and right knee disability. In a May 2018 decision, the Board denied service connection. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2019 Order, the Court granted a Joint Motion for Remand (Joint Motion) and vacated the May 2018 Board decision. The Board remanded the case for further development in September 2019 and September 2020. The Veteran was afforded a VA examination in connection with his claim for service connection in June 2012 and December 2020. The June 2012 VA examiner noted the Veteran’s 1970 in-service diagnosis of infrapatellar bursitis of the right knee, and a 2009 diagnosis of arthritis, bilateral knees. The VA examiner opined that the Veteran’s bilateral knee discomfort is not caused by or a result of military service. The examiner reasoned that, although there is a record of treatment in service for right infrapatellar bursitis, there was no permanent residual or chronic disability shown in service records or demonstrated in evidence following service. The examiner stated that the Veteran was morbidly obese and obesity is a significant factor in the causation of stress on the knee joint with resulting discomfort. The examiner further noted that the Veteran had been out of the military for 31 years, and that his separation physical in March 1971 evidenced a normal examination. In the December 2020 VA opinion, the same VA examiner opined that the Veteran’s condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. In so finding, the examiner found that there was no residual or chronic disability subject to service connection shown by the service medical records or demonstrated by evidence following service. It was found that the March 1971 separation examination disclosed normal findings and that the Veteran was not medically discharged from the military. The examiner stated that service treatment records evidence that the Veteran was medically qualified to complete his active duty tour and that full consideration of all pertinent and available medical facts rendered. While the record contains two opinions on this matter, the Board finds that they are inadequate to address the issues presented. To that end, the record contains several in service complaints and/or diagnoses for the knee(s) to include the report of trick or locked knee during the entrance and separation examinations. The June 2012 and December 2020 opinions do not address and/or appear to take into consideration the several documented in-service knee complaints. The Board also notes that the Veteran has reported that he has had painful knees since his surgery while on active duty and that they continue worsen as the years go by. It does not appear that the examiner considered this lay evidence. As the Veteran’s in-service treatment and lay statements have not been addressed, the Board finds that an addendum opinion is needed on this matter. The Board further notes that the Veteran appears to have received VA treatment shortly after service discharge. See VA Form 10-7131 dated January 1972 (noting VA inpatient treatment at the Saginaw VA Hospital (VAH)); VA Form 10-7131 dated March 1975 (noting VA inpatient treatment at the Saginaw VAH); VA Form 10-7131 dated January 1977 (noting inpatient treatment). On remand, these records should be associated with the claims folder. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). The matters are REMANDED for the following action: 1. Associate with the claims file any outstanding paper and/or electronic VA records, to include a specific search for VAMC records at the Saginaw VAH since 1972. See VA Form 10-7131 dated January 1972 (noting VA inpatient treatment at the Saginaw VA Hospital (VAH)); VA Form 10-7131 dated March 1975 (noting VA inpatient treatment at the Saginaw VAH); VA Form 10-7131 dated January 1977 (noting inpatient treatment). 2. Obtain an addendum opinion, from an examiner other the June 2012/December 2020 examiner, to address whether any current left and/or right knee disorder is related to service. Access to the electronic claim files must be made available to the examiner for review. The need for additional examination is left to the discretion of the examiner. As to each and every left and/or right knee disorder diagnosed at the examination, or diagnosed in the record, the examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance that the Veteran's disability had its onset in service or is otherwise related to service. In doing so, the examiner must consider the service treatment records that include but are not limited to: (1) the Veteran’s complaints of bilateral knee buckling in August 1968; (2) the direct trauma to the right infrapatellar area in December 1969; (3) another trauma to the right patella in January 1970 with clinical examination significant for infrapatellar bursa swelling and slight anterior cruciate instability; (3) the March 1970 record indicating that the Veteran was in a cast for more than three weeks; (4) the July 1970 complaint of recurrent right knee pain; and (5) the Veteran’s report of tricked or locked knee during the July 1968 entrance examination and again during the separation examination in March 1971 and (6) the history of left knee arthroscopic surgery in the 1990s. The examiner is requested to discuss whether there is any medical reason to accept or reject the Veteran’s belief that his chronic knee pain since service demonstrated the onset of a chronic bilateral knee disorder since service. The examiner should discuss the general medical principles regarding the chronicity of infrapatellar bursitis and provide opinion, to the extent medically feasible, regarding the significance, if any, of his documented report of knee buckling and the finding of slight anterior cruciate instability in 1970. A complete rationale for any opinion should be provided. The examiner must not rely solely on the absence of a diagnosis or symptom in service as the basis for a negative opinion. It is also noted that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists. (continued on the next page) 3. Thereafter, readjudicate the remanded issues. If any benefit sought on appeal remains denied, the Veteran and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S. Willie 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.