Citation Nr: 21028833 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 12-14 502A DATE: May 12, 2021 REMANDED The claim for service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1969 to March 1971. The matter is on appeal before the Board from a March 2010 rating decision. The Board previously remanded the issue for further development in January 2016, March 2018, and May 2020. The Board regrets the delay in adjudication that another remand will create, however, there has not been substantial compliance with the previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In both the May 2020 and March 2018 remands, it was noted that a previous examination had not considered the Veteran's lay statements that he had received left knee treatment before his 2008 meniscal tear. In the May 2020 remand, the Board found the June 2019 addendum medical opinion that had been provided in response to the March 2018 remand, to be inadequate because the examiner did not acknowledge the Veteran's lay statements of having knee pain prior to 2008, which the March 2018 Board remand had instructed was required. It was specifically noted that in an April 2010 statement from the Veteran, he contended that his 2008 injury was due to his knee buckling due to his already existing knee disability. The Board went on to observe that the Veteran's medical record reflects that he had been seen for knee pain complaints prior to 2008. The Board further noted for the purpose of determining whether or not the Veteran had a left knee disability prior to 2008, that pain may, in the absence of a diagnosis or underlying pathology, be considered a current disability under 38 U.S.C. § 1110 if it results in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board then in the remand directives stated that the examiner's "rationale must address the Veteran's specific contention that his left knee injury resulted from instability (buckling) due to a then already existing left knee disability, resulting in superimposed pathology." In the October 2020 VA medical opinion, the examiner found that the Veteran's left knee disability was less likely than not (less than 50 percent probability) incurred in or caused by his active military service. In the rationale the examiner wrote "Veteran complained of left knee pain on his exit exam in 1971 secondary to soft tissue injury. His service record is silent for right knee condition. There is no radiographic evidence of arthritis. Veteran's record is silent for knee condition until More than 3 decades later, Veteran had a fall in 2008 in which he sustained a meniscal tear for which he is status post arthroscopic surgery and medial meniscectomy." In additional questions, the examiner stated that she had reviewed the Veteran's record and she acknowledged his lay statements asserting that he had a left knee disability prior to the 2008 post-service injury, and that the injury occurred because the knee buckling due to an already existing left knee disability. She noted that the Veteran had a soft tissue injury at his exit exam in 1971. Then a fall occurred in 2008, which caused the Veteran to have a meniscal tear for which he had surgery. Thus, it was stated that there is no link between the Veteran's service injury with the Veteran's current condition. While the examiner did address the contention, there is only a reiteration of the timeline of the occurrences, rather than an explanation for the findings. Additionally, the timeline does not account for the medical evidence that the Veteran had complained of knee pain prior to the fall in 2008. As the Board previously noted, pain, on its own, may be considered a disability if it results in functional impairment of earning capacity. Id. The Board also notes that the examiner stated in the opinion that there is no radiographic evidence of arthritis, however, an August 2010 orthopedic note reflects findings from a bone scan that showed polyarthralgia with mild arthritis symptoms in both knees. As such, a remand is warranted to obtain a VA medical opinion that not only acknowledges the Veteran's contentions that his 2008 injury was due to his knee buckling due to his already existing knee disability, but that discusses his contention in conjunction with the medical evidence prior to the 2008 injury in which the Veteran complains of knee pain. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion to determine the etiology of the Veteran's left knee disability. If a physical examination is required to answer the Board's questions, one should be scheduled. The examiner should answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability began in or was otherwise caused by his active military service? Why or why not? In the examiner's opinion, they should take into account and discuss the medical evidence pertaining to the Veteran's left knee found within his service treatment records (See an August 1969 radiographic report, and the March 1971 separation examination), the medical evidence of complaints of knee pain prior to the 2008 injury (See Biloxi VAMC records dated May 15, 2008), the August 2010 bone scan showing polyarthralgia with mild arthritis in the Veteran's knees (See Biloxi VAMC record dated September 23, 2014), and the Veteran's lay statement/contention that his 2008 left knee injury was due to left knee instability that was due to an already existing left knee injury that began in basic training (See the Veteran's April 2010 statement). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.