Citation Nr: 21026980 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-29 851 DATE: May 4, 2021 REMANDED The claim of entitlement to service connection for a left knee disability is remanded. The claim of entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1985 to October 1988, August 1990 to September 1990, February 1991 through April 1991, March 2003 to July 2003, and June 2005 to May 2007. Additionally, he had several periods of service with the National Guard/Reserves between 2002 and 2007. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied service connection for left and right knee disabilities. The Veteran's notice of disagreement (NOD) was received in May 2014. The RO issued the statement of the case (SOC) in April 2016, and the Veteran's VA Form 9, substantive appeal was received in June 2016. In October 2018, the Board remanded the case for further development and adjudicative action. The claims of entitlement to service connection for left and right knee disabilities are remanded. The Veteran contends that he has left and right knee disabilities that are related to his military service. Specifically, he asserts that he injured his knees in active service in 1987. See May 2014 NOD; see also October 1987 Service Treatment Record (STR) (showing left knee "gives way"). Alternatively, he argues that his knees were injured during a later period of active duty, in 2003. See June 2016 VA Form 9. Available STRs include some complaints regarding the knees. Specifically, an October 1987 record shows complaints of left knee pain for several weeks. At that time, the Veteran was diagnosed with "PFA" but x-ray findings at that time were reportedly normal with the exception of right knee "OD" of the non-weight bearing aspect of the medial femoral condyle, which he opined was insignificant. Also, a May 1988 physical therapy consultation shows complaints regarding both knees but indicates that x-rays were negative. Reserve records also show some complaints regarding the knees. Specifically, in an August 2000 report of medical history, the Veteran reported having a "'trick' or locked knee." It was also noted that the Veteran's right knee "floats." The earliest post-service evidence of left knee problems is a November 2009 private magnetic resonance imaging (MRI) scan of the left knee showing mild osteoarthritis/chondromalacia within the medial and patellofemoral compartments as well as an abnormal medial meniscus. A December 2009 private treatment record shows that the Veteran's left knee pain began approximately four to five weeks earlier after running a short distance. The earliest post-service evidence of right knee problems is an October 2012 private treatment record noting X-ray evidence of severe tricompartmental degenerative osteoarthritis for the right knee. The Veteran submitted an initial claim for service connection for bilateral knee disabilities in May 2013. In connection with this claim, he was afforded a VA knee examination in January 2014. Significantly, the examiner diagnosed bilateral degenerative joint disease, noting an onset in January 2014, and opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale for this opinion, the examiner noted that the Veteran was treated twice for knee pain while in service with diagnosis of pain and PFA and was without chronicity of symptoms or treatment for bilateral knees since service. Current osteoarthritic changes, noted bilaterally, are attributed to age, wear, and tear on joints, with additional added stress of morbid obesity with height of 70 inches and weight of 250 pounds. The Veteran was afforded a second VA knee examination in February 2014. Significantly, this examiner continued a diagnosis of bilateral knee joint osteoarthritis and also provided a negative nexus opinion with a similar rationale. As neither the January 2014 nor February 2014 VA examiners considered the Veteran's allegations of in-service knee injuries, the claims were remanded in October 2018 to obtain an addendum medical opinion. The examiner was specifically instructed to consider the Veteran's lay statements regarding injuries that occurred in service which, though undocumented, the Veteran believes are the cause of his current bilateral knee disabilities. Significantly, it was noted that, although the Veteran is not competent to opine as to whether a link exists between an in-service injury and a current knee disability, he is competent to provide his version of events concerning the nature and history of his right and left knee disabilities. In a September 2019 opinion, a VA examiner again opined that the Veteran's left and right knee disabilities were less likely than not related to service. Unfortunately, with regard to the left knee, the September 2019 VA opinion appears to be based on factual inaccuracy. Significantly, the examiner noted that the Veteran's 2000 report of medical history was silent for left knee symptoms but, as above, the Veteran did report a history of "'trick" or locked knee" which, presumably, could apply to either knee. Also, while the September 2019 VA examiner reviewed the private treatment records and STRs, the examiner did not address the Veteran's statements regarding the history of the knee disabilities as was directed in the October 2018 Board remand. Specifically, as above, the Veteran has, on several occasions, provided detailed descriptions of his various in-service knee injuries which he believes are related to service. See, e.g. May 2013 Statement in Support of Claim; May 2014 NOD; June 2016 VA Form 9 and attached statements. Because the September 2019 VA opinion inaccurately characterized the August 2000 report of medical history as not applying to the left knee and did not address the Veteran's lay statements as directed in the October 2018 Board remand, a remand is necessary to obtain an opinion which does so. The matters are REMANDED for the following action: Return the claims file to the September 2019 VA knee examiner for an addendum opinion. If the examiner who drafted the September 2019 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should confirm the Veteran's diagnoses regarding the bilateral knees. Then, for each disability, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the disability was caused by, or incurred in, a period of active service. The entire claims file, including a copy of the Remand, must be made available to, and must be reviewed by, the examiner, prior to forming any opinions. Importantly, and in light of the Veteran's assertion of knee injuries which occurred at various points during his numerous periods of active duty, the examiner must be provided with a list of the Veteran's periods of active duty and his numerous periods of Reserve service from 2002 to 2007. The examiner should then specifically review the Veteran's May 2013 Statement in Support of Claim, May 2014 NOD, and June 2016 VA Form 9 regarding the Veteran's claimed in-service knee injuries. The examiner is advised that any finding that disabilities of the right and left knees are not related to service solely due to an absence of documentation in the STRs, without considering the Veteran's lay statements related thereto, is inadequate for the purposes of this remand, and will very likely require yet another Board remand. APRIL MADDOX Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.