Citation Nr: 21029685 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-07 910 DATE: May 14, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. REASONS FOR REMAND The Veteran had active military service from July 1990 to January 2013. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2019 and July 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. 1. Entitlement to service connection for a left knee and right knee disability is remanded. These claims were previously remanded by the Board in July 2020 for an adequate VA opinion. Specifically, the Board requested the VA to address medical evidence that suggested there was current, chronic, and continuous care for the right knee. There are two post-remand opinions. One December 2020 opinion opined the Veteran's right knee condition is not related to service. It was reasoned that there is no documentation of a chronic knee condition during active duty. Moreover, while right knee arthritis is noted in his post-service VA medical records in January 2013, according to the VA examiner, this note was actually for right ankle arthritis. Further, the rationale reports explained that a subsequent mental health note in February 2013 noted right ankle arthritis but not right knee arthritis. It concludes, in pertinent part, that orthopedic knee complaints were not diagnosed until 2015 as an incidental finding in work up after a nerve block; and that the arthritis is most likely due to the natural aging process. The Board does not find that this opinion is adequate as it somewhat relies on an inaccurate factual premise. The examiner relies on the premise that the mention of the Veteran's right knee arthritis in January 2013 is actually for his right ankle and supports this by noting osteoarthritis was not mentioned on a subsequent mental health note in February 2013. However, in spite of the examiner's report, a February 2013 mental health note reports the Veteran had a medical history of osteoarthritis in his right knee. Subsequent VA records in June 2013 and December 2013 report osteoarthritis in his right knee. Notably, in December 2013, a VA diagnosis and plan list included both degenerative joint disease of the right knee and ankle arthralgias. This undermines the finding that the Veteran did not have separate pathologies in both his right ankle and right knee. It also undermines the finding that the Veteran did not have a right knee arthritis condition prior to 2015. The Board finds the time period of the evidence is pertinent because the Veteran discharged from active duty in January 2013. The other December 2020 post remand opinion reports there is no documentation of a chronic knee condition while on active duty. It reports the Veteran's separation examination was silent for knee issues and discusses a 2018 x-ray. This is inaccurate as well. In June 2011, the Veteran checked yes as to whether he ever had or currently had knee trouble. A chronological record of medical care reports the Veteran had pain in his left knee in July 2012 (months before he separated from active duty). An MRI from the same month (July 2012) of the Veteran's left knee showed patellar enthesophytes on the patella along with a small knee joint effusion. Also, knee joint pain was reported in his "chronic" medical problem list on his VA medical records in both November and December 2012. To that extent, the December 2020 VA opinion that reports there is no documentation of a chronic knee condition in the Veteran's active duty records, is also inaccurate; and a remand for an opinion that addresses this evidence is needed. 2. Entitlement to service connection for right shoulder condition. As to his right shoulder condition. This claim was remanded by the Board in July 2020. The post-remand December 2020 opinion reports the Veteran's right shoulder condition was only acute in 2011. Moreover, the examiner stated that there is no evidence of chronicity of care and chronicity of symptoms are not supported by treatment notes. The Board cannot rely on this opinion, either. It relies on the absence of objective medical records during service to disprove a nexus to service. In other words, it treats no evidence as negative evidence. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence. In addition to his inservice report of pain in his right shoulder, within a year of his discharge, the Veteran was being seen in June 2013 for constant pain in his right shoulder for which he was treating with pain management, medication, and a TENS unit. This medical record five months after discharge along with his inservice reports of shoulder pain undermine the premise that the Veteran's right shoulder condition was not chronic. As such, a remand is needed for an addendum opinion. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. Arrange for the claims file to be reviewed by a suitably qualified health care professional and request that they respond to the questions below. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. After reviewing the record, the examiner is requested to provide the following opinion: (a.) Is it at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a right knee and/or left knee disability that had its onset during, or is otherwise related to, service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In providing this opinion, the Board directs the examiner's attention to the medical treatment records, including the June 2011 report of knee trouble, the July 2012 MRI of the left knee, the November and December 2012 reports of knee pain; and the 2013 VA records reporting osteoarthritis in the right knee. The examiner must specifically consider and discuss the Veteran's statements regarding his pertinent medical history of knee symptoms. The opinion and rationale should reflect such consideration. If a negative opinion is offered based primarily on the length of time between separation and the current diagnosis the examiner should explain the medical significance of this fact, i.e., why this is indicative that any current knee condition is not related to service. A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. 4. Arrange for the claims file to be reviewed by a suitably qualified health care professional and request that they respond to the questions below. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinions. After reviewing the record, the examiner is requested to provide the following opinions: (a.) Is it at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's right shoulder disability had its onset during, or is otherwise related to, service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In providing this opinion, the Board directs the examiner's attention to the August 2011 service treatment record noting that the Veteran had dull right shoulder pain; and his 2013 report of constant pain in his right shoulder (within 6 months after discharge). The examiner must specifically consider and discuss the Veteran's statements regarding his pertinent medical history relating to his shoulder symptoms. The opinion and rationale should reflect such consideration. (Continued on the next page) If a negative opinion is offered based primarily on the length of time between separation and the current diagnosis the examiner should explain the medical significance of this fact, i.e., why this is indicative that any current knee condition is not related to service. A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.