Citation Nr: 21022279 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-26 599 DATE: April 15, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a right knee disability is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for a left knee disability is reopened. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. An August 2007 rating decision by the Agency of Original Jurisdiction (AOJ) denied service connection for a right knee disability. The Veteran did not appeal or submit new and material evidence within a year of the decision. Therefore, the August 2007 rating decision became final. 2. At the time of the August 2007 rating decision, the record did not contain evidence of a link between his right knee disability and time on active duty. Since then, the AOJ obtained a medical opinion regarding the etiology of the Veteran’s claimed bilateral knee disability. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 3. An August 2007 rating decision by the AOJ denied service connection for a left knee disability. Though the Veteran filed a notice of disagreement (NOD) regarding his left knee only, he did not file a substantive appeal to the December 2007 statement of the case (SOC) denying his claim. As a result, the August 2007 rating decision became final. 4. At the time of the December 2007 SOC, the record did not contain evidence of a link between his left knee disability and time on active duty. Since then, the AOJ obtained a medical opinion regarding the etiology of the Veteran’s claimed bilateral knee disability. This evidence is new and material and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to May 1969. He appeals a June 2015 rating decision by the AOJ denying his petition to reopen service connection claims for right and left knee disabilities. See July 2015 NOD. The Board notes that the Veteran did not appear for his November 2019 Board hearing. Accordingly, he was marked as a “no-show” and his hearing request was considered withdrawn. 38 C.F.R. § 20.704(d). REASONS FOR REMAND The AOJ obtained a medical opinion in May 2016 to assess the etiology of the Veteran’s bilateral knee disability. However, the Board finds that the VA clinician’s opinion as to this issue is inadequate for adjudication purposes. See 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 Veteran contends that his bilateral knee disability is related to his duties as a paratrooper while in service. See August 2015 VA treatment record; see also May 2015 Claim to Reopen. The Veteran’s service personnel records reflect that he is in receipt of the Parachutist Badge. See DD-214. The May 2016 VA clinician opined that the Veteran’s knee disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The clinician reasoned that “there is no medical evidence that the Veteran’s current bil[ateral] knee condition is due to his service or parachutist activity. No significant knee injury is noted in service that would be anticipated to cause the early onset of arthritis or other future knee problem.” See May 2016 VA medical opinion. Moreover, the clinician noted that the Veteran denied any knee problems on his separation examination in April 1969 and concluded that the likely etiology of the Veteran’s bilateral knee condition is the normal aging process. Id. However, the Board finds that while the May 2016 opinion makes mention that the Veteran was a parachutist while in service, it fails to actually address how said duties, to include the traumatic stress placed on his musculoskeletal system from parachute jumps, may have contributed to or caused his current bilateral knee disability. The opinion simply states that there is no medical evidence that the Veteran’s knee disability is due to his parachutist activity because there was no knee injury noted in service or upon separation from service. See May 2016 VA medical opinion. Thus, the Board finds that the opinion relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion; such an opinion is inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Therefore, the Board finds that remanded is warranted to afford the Veteran with an adequate opinion. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his bilateral knee disabilities that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. After completing the above, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran’s bilateral knee disabilities. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. The opinion must include a notation that this record review took place. It is up to the discretion of the reviewing clinician as to whether an examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary by the reviewing clinician, the reviewing clinician should identify all bilateral knee disabilities present. Then, the reviewing clinician is asked to respond to the following: Is it at least as likely as not that the Veteran’s bilateral knee disability was incurred in, or is otherwise related, to his time in service, to include his duties as a parachutist? The reviewing clinician’s attention is directed to the fact that Veteran was a parachutist during service, and as such, shall specifically address any possible stress placed on his knees while performing parachutist duties. In rendering this opinion, the reviewing clinician 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 reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician 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 reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician 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(s). 3. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.