Citation Nr: 21015912 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-56 751 DATE: March 18, 2021 REMANDED The claim of entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran had active service from February 1958 to February 1960. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2016 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in November 2019. A transcript is of record. In January 2021, the Veteran was advised that the Veterans Law Judge (VLJ) before whom he had testified was no longer employed by the Board. He was offered the opportunity for an additional hearing, but did not respond within the allotted time. The Veteran maintains that his right knee disability is related to injuries during service. Service treatment records reflect that the Veteran complained of right knee pain in July 1958, and that on orthopedic consultation in August 1958, the provider noted an old injury approximately one year prior to entrance into service. X-rays revealed a calcific foreign body in the joint. The Veteran was advised to return to the orthopedics clinic with any acute interval. In his February 2017 notice of disagreement, the Veteran indicated that injury in basic training had caused worsening symptoms over the years. On VA examination in September 2017, the diagnoses were osteoarthritis of the right knee and right knee meniscus tear. The examiner concluded that the Veteran’s right knee disability was not related to service. He acknowledged that the Veteran injured his knee during service, but also pointed out that there was evidence indicating an injury prior to service. He noted that there was no indication that the knee injury led to chronic knee pain, as the Veteran had no medical records for more than 40 years that substantiated any knee pathology. It appears that the examiner dismissed the Veteran’s report of ongoing symptoms based on an absence of documented pathology. However, the Veteran is competent to report his history and any symptoms during service and in the years following separation. During his November 2019 hearing, the Veteran clarified that his report of prior injury in August 1958 pertained to an earlier injury sustained during basic training, and that the July 1958 injury was in fact the second injury during service. He also indicated that he experienced symptoms during service and in the years following service. Given the Veteran’s testimony regarding a history of two injuries during service and the examiner’s dismissal of the Veteran’s report of symptoms both in service and thereafter, the Board concludes that an additional examination is necessary to consider the Veteran’s lay statements. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his right knee disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should provide an opinion regarding whether it is at least as likely as not that the Veteran’s right knee disability was incurred in, or is otherwise related to active service. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page)   2. Then, readjudicate the Veteran’s claim. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Barone, 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.