Citation Nr: 21030059 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-67 827 DATE: May 17, 2021 REMANDED Service connection for a right knee disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1994 to November 1996. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a March 2020 decision, the Board found that new and material evidence had been received to reopen the previously denied claim of entitlement to service connection for a right knee disorder and subsequently denied the claim on a de novo basis. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2021 Joint Motion for Partial Remand (JMR) the parties requested that the Board decision be vacated and that the matter be remanded for actions consistent with the JMR. Later that month the Court granted the JMR and remanded the matter to the Board for actions consistent with the JMR. As to the issue of service connection for a right knee disorder, the Board notes that in the February 2021 JMR, the parties indicated that the Secretary was required to "make reasonable efforts" to assist a claimant in obtaining evidence necessary to substantiate his or her claim for benefits. This included, among other things, a duty to provide a thorough and contemporaneous medical examination or obtain a medical opinion when either was necessary to make a decision on the claim. The parties noted that an examination was adequate where it was based upon consideration of the veteran's prior medical history and examinations and also described the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability would be a fully informed one. They observed that the Court had found that "an examination is inadequate if the medical professional fails to consider the veteran's own lay reports of symptoms." Miller v. Wilkie, 32 Vet. App. 249, 257 (2020) The parties noted that the Veteran served in the United States Marine Corps from September 1994 until November 1996. At his separation exam, the Veteran reported experiencing a "trick" or locked knee. In July 1996, the Veteran sought treatment for right knee pain. He reported having right knee pain for six months and that it sometimes locked up or went out on him, and the examiner recorded no known trauma or history of injury to his right knee. The Veteran reported that sometimes his right knee would occasionally swell. The parties further observed that in a January 6, 2009, private medical evaluation, the Veteran explained that he experienced pain in his right knee, that it bothered him every month or two, and that the pain would last around two weeks. In addition, a February 18, 2009 private treatment record from North County Sports Medicine noted the Veteran experienced discomfort in his right knee since military service along with intermittent exacerbations of pain. The report explained that Veteran's "pain remains at low level, once a month or so. It can progress to the point where it interferes with even simple ambulation." The parties noted that the Veteran was provided a VA medical examination in January 2017. However, the examiner did not discuss the Veteran's statements of right knee pain and symptoms since service, including from his private treatment records, nor did the examiner discuss the Veteran's separation report of medical history. The examiner provided an addendum opinion in February 2017. In his addendum, the examiner stated: There appears to be no documentation from the initial injury in 1996 until 2009 to link the meniscal tear and cyst. It is therefore less likely than not that the Veteran's right knee surgery is related to his service injury to his right knee. Any evidence that the Veteran had a cyst, pain or limitation in his right knee function from 1996 until 2009 would create a nexus. The parties agreed that the examiner's opinion was inadequate as it failed to address the Veteran's statements of experiencing continuous knee pain and symptoms since service until his right knee surgery. The parties further stated that the examiner also failed to address the separation examination report that detailed a history of trick/locked knee. The parties indicated that on remand, the Board had to ensure that VA secured a new or addendum opinion that adequately addressed this evidence. The parties also noted, without conceding additional error, that the Board should ensure that the Veteran's complete VA treatment records were associated with the record. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. The Veteran should be scheduled for a VA examination to determine the nature and etiology of any current right knee disorder. All indicated tests and studies should be performed and all findings must be reported in detail. The entire record must be made available for review and the examiner should note such review in his/her report. After a complete review of the claims folder, the examiner is requested to offer the following opinions: Is it as likely as not (50 percent probability or greater) that any current right knee disorder is related to the Veteran's period of service? In providing the above opinion, the examiner should consider and address statements from the Veteran regarding the onset and continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner must also address the Veteran's reports of a tricked or locked knee on his service separation report of medical history and right knee problems noted in private treatment records. Complete detailed rationale is requested for any opinion that is rendered. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly. 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.