Citation Nr: 21021131 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 19-27 551 DATE: April 9, 2021 REMANDED Entitlement to service connection for left knee condition is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps on active duty from February 1964 to February 1967, with service in the Republic of Vietnam. The issue comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, an August 2017 rating decision denied the Veteran’s claim of service connection for his left knee disability. In July 2018, the Veteran submitted new and material evidence prior to the expiration of the initial appeal period. Accordingly, the evidence is considered to have been filed in connection with the claim pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, the rating decision did not become final, and the claim remains pending until it is readjudicated considering the new evidence. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2021. A transcript of the hearing has been included with the record. Entitlement to service connection for left knee condition is remanded. The Veteran contends that his current left knee disability is directly related to the left knee injury he suffered during combat in the Republic of Vietnam. The Veteran’s VA medical treatment records show the Veteran underwent left knee surgery in 1981 to repair cartilage damage. The record shows the Veteran was diagnosed in September 2012 with degenerative arthritis of the left knee and continued to receive treatment for chronic knee pain. The Veteran underwent a left total knee replacement in December 2017. The Veteran’s service treatment records are absent of treatment or complaints of symptoms of the Veteran’s left knee disorder. The Veteran testified at a March 2021 Board hearing that he injured his left knee during his active duty service in the Republic of Vietnam. The Veteran stated he twisted his left knee and felt intense pain for a short time when he jumped into a foxhole during a mortar attack. Additionally, the Veteran testified that he received treatment from a private orthopedic surgeon after separation from service. The Veteran reported the orthopedic surgeon diagnosed the Veteran’s left knee condition as a tear that progressively worsened over time. The Veteran testified that the orthopedic surgeon determined the Veteran’s left knee disability started with the Veteran’s in-service left knee injury. VA’s duty to assist includes providing an examination and obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between a current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). Given the Veteran’s VA medical treatment records and competent lay testimony of an in-service injury, remand is required to obtain a medical examination addressing the nature and etiology of the Veteran’s current left knee condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Absent an adequate medical opinion addressing the causal nexus between the Veteran’s left knee disability and his in-service knee injury, the record is insufficient for the Board to decide on the Veteran’s claim, and a remand is needed. The matters are REMANDED for the following action: Schedule an examination with an appropriately qualified VA clinician to determine the nature and etiology of the Veteran’s left knee condition. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The claims file should be reviewed in conjunction with the examination. A copy of this remand should be made available to the examiner. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s left knee condition had its onset in or is otherwise related to active service. As the Veteran asserts he sustained a left knee injury during the conditions of combat, for the purposes of this examination, the examiner must presume the in-service incurrence element of the claimed injury is satisfied. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. 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. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, Associate 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.