Citation Nr: 21014173 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-41 928 DATE: March 11, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1988 to December 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, denied service connection for a right knee disability. This matter was previously remanded by the Board in September 2018 to address findings of right knee degenerative joint disease (DJD) documented by x-rays taken after the then-most recent VA knee examination in November 2013. The claim was then remanded by the Board in February 2020 for further development, as discussed below. Entitlement to service connection for a right knee disability While the Board regrets further delay, remand is necessary in order to adjudicate the Veteran’s claim for service connection for a right knee disability. In the February 2020 remand, the Board found that a November 2019 VA opinion did not comply with the September 2018 remand directives instructing the examiner to address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or separation from service. The February 2020 Board remand directives instructed the examiner to determine the nature and etiology of any currently present right knee disability and opine whether it is at least as likely as not that any currently present right knee disability is etiologically related to the Veteran’s active duty service. The examiner was instructed to consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. The Veteran was most recently afforded a VA knee examination in July 2020. The examiner opined that the Veteran’s claimed disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In so finding, the examiner stated that there is no evidence of DJD. Specifically, the examiner stated that she disagrees that 2013 x-rays show anything more than osteochondral lesion and that there is no cause determined for this abnormality documented in the claims file. The examiner opined that the Veteran had patellofemoral syndrome (PFS) during active duty, but supporting imaging was needed to determine whether it completely resolved, and noted no evidence of PFS on x-rays from 2013 and 2019. The examiner concluded that a nexus was not established because DJD was not found in the 2019 x-rays and a cause for the Veteran’s osteochondral lesion, first seen in 2013, is not determined. In the February 2020 Board remand, the VA examiner was instructed to determine the nature and etiology of any currently present right knee disability and to consider the Veteran’s lay statements regarding the onset and continuity of his symptoms in forming the opinion. While the examiner was clear on her opinion that the Veteran does not have DJD, she did not give an adequate opinion regarding the current disability identified – osteochondral lesion. Stating that the cause is not determined is an inadequate and conclusory rationale. Additionally, the examiner failed to discuss the April 2014 private medical radiology record noting an impression of right knee DJD and the April 2015 positive nexus opinion given by the Veteran’s private doctor, Dr. T.Z. And while the examiner noted that the Veteran reported going to sick call was not usually productive as he was just told to take Motrin, she also states there were not continuing symptoms or at least not significant enough to seek medical attention and that without records for the period following the Veteran’s separation from 1992–2013, determining cause is difficult. It therefore appears that the examiner relied on the absence of evidence in determining there was no continuity of symptomatology and only noting the Veteran’s lay assertions in passing without fully discussing those statements. Providing the Veteran with an inadequate examination is a duty to assist error; and therefore, the matter must be remanded. See Barr v. Nicholson, 21 Vet. App. 303 (2007). VA’s “duty to assist “includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (internal quotation omitted). In light of the foregoing, the Board finds that the July 2020 opinion is inadequate and a remand is required to obtain a new etiology opinion. The matter is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to procure and submit the records himself. For federal records, all reasonable attempts should be made to obtain such records. 2. Then, schedule the Veteran for an examination with an orthopedist to determine the etiology of any current right knee disability. The record, to include a copy of this Remand, should be made available to, and be reviewed by, the examiner in conjunction with the examination. The examiner should note such review was conducted. All tests deemed necessary should be conducted and the results reported. After the record review and examination of the Veteran, the examiner should identify all right knee disabilities present. Then, for each disability identified, the examiner is requested to address whether it is at least as likely as not (50 percent or greater probability) that the right knee disability had its onset during the Veteran’s active duty service, or is otherwise etiologically related to his active duty service. In formulating the opinions, the examiner should consider and discuss the Veteran’s service treatment records documenting right knee patellofemoral syndrome and a right leg injury, and Dr. T.Z.’s April 2015 positive nexus opinion. The examiner should also consider and discuss the Veteran’s supporting lay statements regarding the onset and continuity of his symptoms. If there is a medical basis to support or doubt the Veteran’s statements, the examiner must state this with a fully reasoned explanation. A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate. If it is not possible to provide a specific measurement, or an opinion without report to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.