Citation Nr: 21024339 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-35 223 DATE: April 22, 2021 ORDER Entitlement to service connection for a bilateral knee disability is denied. REMANDED Entitlement to service connection for a skin disability is remanded. FINDING OF FACT The Veteran’s bilateral knee disability did not manifest in service or shortly after service, there was no continuity of symptomatology from service to diagnosis, and the disorder is otherwise unrelated to service. CONCLUSION OF LAW The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to June 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the matter for outstanding records and VA examinations. The remand instructions directed the RO to not schedule the VA examinations until all records and/or responses were associated with the claims file. The Veteran indicated in August 2019 that he had no new evidence to submit, and the VA examinations were scheduled in September 2019. In August 2020, the Veteran submitted new but non-relevant private medical records that are not material to the claims. As such, the Board finds that the remand instructions were substantially complied with and further remand is unnecessary as to the VA knee examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998) The Veteran testified at a May 2018 travel Board hearing before a Veterans Law Judge (VLJ) and a transcript of the hearing has been associated with the electronic claims file. The VLJ who held the May 2018 hearing has since retired from the Board. In a January 2021 Correspondence, the Veteran was advised of this fact, given the opportunity to have another hearing, and notified that if he did not provide a response within 30 days, it would be assumed that he did not want a hearing. The Veteran did not respond to the letter. Therefore, the Board may proceed with adjudication of the issues on appeal, which includes consideration of the Veteran’s hearing testimony. 1. Entitlement to service connection for a bilateral knee disability is denied. The Veteran seeks service connection for a bilateral knee disability. Specifically, he contends that his knees were injured in service from standing for hours on end in the engine room on the U.S.S. Enterprise. The Veteran was diagnosed with bilateral knee degenerative arthritis in September 2019. Because arthritis is listed as a chronic disease under 38 C.F.R. § 3.309(a), the Board considers whether the Veteran is entitled to presumptive or direct service connection for his bilateral knee arthritis. The Board finds, however, that the Veteran is not entitled to presumptive service connection. While the Veteran has stated that his knee pain began in service from his standing for long hours on steel deck plates, see October 2012 and October 2020 Correspondence, his service treatment records do not show that his bilateral knee arthritis manifested in service. The Veteran’s service treatment records indicate that he was treated for right knee pain from twisting and marching in July 1976 during boot camp, but do not contain any further complaints or treatment. At the May 2018 Board hearing, the Veteran testified that he did not report his knee problems in service because he knew they were caused by standing for long hours in the engine room and he would not be removed from the position. The Veteran’s May 1982 separation examination documents his knees as normal and does not reflect any complaints for knee pain or injuries. The Veteran has not submitted any private treatment records documenting his bilateral knee disability prior to 2013, 31 years post-service. He was diagnosed with bilateral osteoarthritis by a private physician in November 2013, with the physician relating the Veteran’s right knee osteoarthritis to a motorcycle accident. The Veteran has not submitted any additional treatment records related to the aforementioned motorcycle incident or from other treating physicians. In May 2019, the RO requested the names, addresses, and approximates dates of treatment for all private health care providers that may possess records pertinent to the Veteran’s claims. The Veteran responded, indicating that he had no new evidence to submit. Based on the lack of treatment records for the Veteran’s bilateral knee disability prior to 2014, the record does not show that his arthritis began within one year of service. Therefore, the Veteran is not entitled to presumptive service connection for his bilateral knee disability. Service connection may also be granted on a direct basis for a disability that begins after service if it is related to an in-service injury. The Board finds, however, that the evidence does not demonstrate that the Veteran’s bilateral knee disability is related to the Veteran’s active service. The Veteran was afforded a VA examination and opinion for his bilateral knee disability in September 2019. The examiner opined that the Veteran’s bilateral knee disability was less likely than not incurred in or caused by the complaint of right knee pain during service and/or the Veteran’s reported knee pain from working in the engine room. In coming to this conclusion, the examiner discussed the Veteran’s reported in-service knee pain and February 2014 private treatment records relating his right knee osteoarthritis to his motorcycle accident, finding that the Veteran’s injury to his right leg more likely than not caused his left leg to overcompensate. The September 2019 opinion was made following an in-person examination, with a full review of the Veteran’s file and relevant history. The examiner relied on medical principles and considered Veteran’s lay statements. The Board finds this opinion highly probative, particularly since the Veteran’s post-service medical records do not evidence knee problems until 31 years post-service. While the Board considered the Veteran’s assertions that he injured his knees while standing and kneeling for long hours in the engine room of the U.S.S. Enterprise, the Board finds that the statements are not as probative as the VA examiner’s opinion, as they are outweighed by the cumulative evidence. The Board finds that service connection for a bilateral knee disability is not warranted as there is no nexus between the Veteran’s current bilateral knee degenerative arthritis and his active service. REASONS FOR REMAND The claim of service connection for entitlement to a skin disability is remanded. The September 2018 remand instructions for the skin examination required that the examination report “reflect consideration of the Veteran’s documented medical history and lay assertions” and report all clinical findings in detail. Specifically, the instructions directed the examiner to identify all skin disabilities, opine as to whether each at least as likely as not had its onset in or is otherwise related to service, and consider all pertinent medical records, including the Veteran’s service treatment records noting rashes and tinea cruris. Per the Board’s remand instructions, a VA medical opinion was obtained in September 2019. In the examination report, the VA examiner noted that the Veteran was diagnosed with intertrigo in February 2014 with a date of onset in the 1970s, but “due to the Veteran’s intertrigo being mild it is unlikely that his condition has persisted for over 40 years despite the ‘many treatments’ reported by the Veteran.’” With focus on the severity of the rash, the examiner concluded that the Veteran’s intertrigo is less likely than not incurred in or caused by the rash during service, to include from working extended hours in engine rooms. The examiner did not discuss the Veteran’s service treatment records documenting the rash in service, and instead relied on lack of complaints about skin or intertrigo-type issues in the Veteran’s entrance and exit examinations. The Board finds, however, that this opinion is inadequate. It is unclear whether the examiner consider the Veteran’s service treatment records specifically detailing treatment for a rash in service. The examiner also improperly focused on the severity of the Veteran’s skin disability post-service. The severity of his skin disability is not relevant to whether the disability should be service connected; severity only becomes relevant if or when the disability is service connected. Accordingly, the matter must be remanded for an adequate medical opinion. See Barr v. Nicholson, 21 Vet. App. 202 (2007) (holding that once VA undertakes an examination, an adequate one must be produced). The matter is REMANDED for the following action: Forward the claims file to the examiner who issued the September 2019 medical opinion, or another appropriate examiner if they are unavailable. After a review of the claims file, the examiner should respond to the following: Is it at least as likely as not that the diagnosed skin disability began in or was otherwise caused by the Veteran’s active duty service? The examiner must consider the Veteran’s service treatment records referencing skin-related issues in service (to include the April 1978, May 1978, June 1978, and November 1979 STRs noting rashes or tinea cruris) and his contentions and testimony regarding his skin disability. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Tierno 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.