Citation Nr: 21023546 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-10 505 DATE: April 20, 2021 REMANDED Service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran had service in the Army National Guard with periods of active duty from May 1999 to August 1999, from May 2000 to August 2000, from January 2003 to April 2004, April 2009 to August 2009 and from June 2012 to June 2013. The Veteran had additional periods of ACDUTRA and INACDUTRA in the Army National Guard and deployed to Iraq and Afghanistan. This appeal comes before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for a left knee disability. The Veteran’s notice of disagreement (NOD) was received in March 2015. The RO issued the statement of the case (SOC) in January 2016, and the Veteran’s VA Form 9, substantive appeal was received in March 2016. In September 2018 the Board remanded the case to the RO for further development and adjudicative action. Service connection for a left knee disability is remanded. The Veteran contends that his left knee disability is related to service. Specifically, the Veteran contends that his left knee disability was caused by running on rocky dirt roads during active service while he was deployed in Afghanistan. See March 2015 NOD; see also March 2016 VA Form 9 Board Appeal. The Veteran’s period of active duty from June 2012 to June 2013 included a deployment to Afghanistan from July 2012 to March 2013. A March 2013 post deployment health assessment reported that the Veteran complained of “[p]ain in the arms, legs, or joints (knees, hips, etc.).” In January 2015, magnetic resonance imaging of the left knee showed “degeneration of menisci with no tears” and “mild to moderate arthritic changes.” After the Veteran submitted a claim for entitlement to service connection for a knee strain in September 2013, the Veteran was afforded a VA knee examination in January 2015. The examiner reported that the Veteran has had bilateral patellar tendinitis for several years. The examiner opined that “[t]he claimed condition [of bilateral knee tendonitis], which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness.” As rationale, the examiner explained that “[t]he patient has a chronic [history] of bilateral activity related patellar tendonitis. This was not exaggerated upon [its] natural progression by his time in service and it is less than 50% likely that any exposure in his time is service is the cause of his patellar tendinitis.” The Board interprets the examiner’s rationale as an attempt to express that the Veteran’s patellar tendonitis was not aggravated beyond its natural progression during service and that it is less likely than not that any event or injury in service is the cause of his patellar tendinitis. In the September 2018 Board remand, the Board found the examiner failed to explain the factual support for the conclusion that the Veteran’s bilateral knee tendonitis clearly and unmistakably existed prior to service was not aggravated beyond its natural progression by an in-service event, injury or illness which is not evident from the evidence of record. The Veteran underwent a VA examination in October 2019. The examiner was instructed to state whether the Veteran’s medical records support that any currently diagnosed conditions related to the Veteran’s claimed left knee patellar tendonitis are at least as likely as not incurred in or caused by running on rocky dirt roads during service. The examiner noted that the Veteran stated he jumped off a vehicle and tore his MCL which was repaired while still on active duty but stated that there are no records to substantiate this claim. The examiner noted that the Veteran underwent a left knee arthroscopy in August 2016 but stated that this was well after the Veteran left service. Therefore, the October 2019 examiner concluded that the Veteran’s left knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In August 2020, an addendum medical opinion was obtained from the same examiner. The examiner was directed to review additional medical records that were added to the claims file and state whether there is a change in diagnosis or a change in the medical opinion provided in October 2019. The examiner noted that medical records indicated that the Veteran reported pain and swelling of the left knee following an Army Physical Fitness Test (APFT) but stated that these complaints came well after active duty. The examiner also noted that an October 2015 MRI of the left knee showed mild to moderate arthritic changes, mild knee joint effusion with a tiny Baker’s cyst and degeneration of the menisci with no frank meniscal tears. The Board finds that a remand for a medical opinion regarding the etiology of the Veteran’s left knee patellar tendonitis is necessary for the following reasons. The October 2019 and August 2020 VA medical opinions are incomplete as they do not address the Veteran’s lay statements wherein he states that running on rocky and dirt roads during his 2012 to 2013 deployment to Afghanistan “took a toll on his knees.” See, e.g. March 2015 NOD. Nor did the opinions address the finding of the January 2015 VA examiner that the Veteran “has a chronic [history] of bilateral activity related patellar tendonitis” that he has had for the past several years. Additionally, while the examiner correctly noted that the October 2015 MRI did not show any evidence of a meniscal tear, the examiner did not adequately address the other findings of mild to moderate arthritic changes, mild knee joint effusion with a tiny Baker’s cyst and degeneration of the menisci shown by the MRI and whether any of these findings may be related to the Veteran’s active service. Additionally, and as noted by the August 2020 VA medical opinion, an April 2015 VA treatment note indicates that the Veteran reported experiencing pain and swelling of the left knee after taking an APFT a week earlier. He stated that he believes he hurt his left knee during the run. The Veteran’s left knee was noted to be swollen and tender along the lateral and medial joint line. Mild crepitus was noted on extension and his gait was slightly slow, but range of motion was noted as full. The Veteran’s service records reveal the dates of periods of ACDUTRA and Federalized National Guard Service but do not provide dates for periods of INACDUTRA. The Veteran's Army National Guard Points Statement dated September 2008 indicates many days of INACDUTRA but does not show specific dates and does not reveal any information after July 2008. The records do not encompass the entirety of the Veteran's lengthy National Guard service and do not indicate whether the Veteran was on ACDUTRA or INACDUTRA in April 2015 when the Veteran claims he hurt his left knee during AFPT. See April 2015 VA treatment note. While the Board regrets further delay, a remand is necessary to obtain such records and confirm the nature of the Veteran's service. Finally, in June 2020, the Veteran submitted authorization forms for OCH Starkville Orthopedic Clinic and Mississippi Bone and Joint. In July 2020, VA sent a letter to the Veteran explaining that they attempted to obtain private medical records from the above facilities but the addresses provided were incorrect. Later in July 2020, the Veteran responded to the VA letter and provided updated authorization forms which include a different address for OCH Starkville Orthopedic Clinic and indicate that Mississippi Bone and Joint has shut down. The Veteran also submitted private treatment records from Mississippi Bone and Joint which show treatment for left knee pain and arthritis. To date, the RO has not made another attempt to obtain medical records from OCH Starkville Orthopedic Clinic following receipt of the updated authorization forms and address. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel records from all sources possible, including but not limited to Defense Finance and Accounting Service (DFAS) and DPRIS, to include all documents pertaining to his service in the Army National Guard. Verify all ACDUTRA and INACDUTRA dates for service in the Army National Guard, to specifically include whether the Veteran was on ACDUTRA or INACDUTRA in April 2015, when he reports that he suffered the left knee injury. 2. VA must again attempt to obtain treatment records from the OCH Starkville Orthopedic Clinic. If the records cannot be located, a memorandum should be submitted into the record documenting all attempts to find the treatment records. 3. Obtain a VA medical opinion with respect to the Veteran's service connection claim for a left knee disability. Arrange for the Veteran to undergo a VA examination only if one is deemed necessary in the judgment of the individual designated to provide the medical opinion. The claims file, including a copy of this remand, must be made available to the medical specialist for review, and the medical specialist should indicate that the claims folder was reviewed. The medical report should reflect full consideration of the Veteran's documented medical history and lay assertions. Thereafter, the examiner is requested to provide an opinion with respect to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left knee disability manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service, to include any periods of ACDUTRA or INACDUTRA? In providing this opinion, the examiner must specifically consider and discuss the Veteran's statements that running on rocky dirt roads during active duty “took a toll on his knees.” The examiner must also discuss the finding of the January 2015 VA opinion which noted that the Veteran has had bilateral patellar tendinitis for several years and a chronic history of bilateral activity-related patellar tendonitis as well as the October 2015 MRI which revealed mild to moderate arthritic changes, mild knee joint effusion with a tiny Baker’s cyst and degeneration of the menisci in the left knee. If the reported APFT in April 2015, during which the Veteran reported that he suffered a left knee injury, occurred during a period of ACDUTRA or INACDUTRA, the medical professional should address whether the left knee pain and swelling documented in April 2015 VA treatment records were incurred in or caused by the period of ACDUTRA or INACDUTRA. The examiner is advised that the Veteran is considered competent to report the events that occurred during service, as well as the symptoms he experienced, including when those symptoms were incurred and how long they have persisted. It should be noted that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. Any conclusion or opinion offered must be accompanied by a complete medical rationale, citing to established medical principles and relevant medical evidence, such as examination findings, service treatment records, or other pertinent evidence in the record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Modesto, Victor 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.