Citation Nr: 21030879 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-10 482A DATE: May 19, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from April 1987 to June 1994 and from March 2009 to February 2010. This appeal comes to the Board from a June 2012 rating decision. The Board remanded this matter in January 2020 and October 2020 to afford the Veteran adequate examinations of his right knee claim. The Board noted existing VA examinations lacked adequate opinions on whether the Veteran's right knee disability (1) at least as likely as not underwent an increase in severity during the Veteran's second period of active duty service and (2) whether such increase was clearly and unmistakably the result of the natural progression of the disability. Unfortunately, the Board finds that the November 2020 VA examination that VA obtained on remand is inadequate. The examiner indicated that clear and unmistakable evidence shows that the right knee disability was "less likely than not" aggravated beyond its natural progression by the Veteran's service. The "less likely than not" language is used in cases where there is a lesser burden of proof than the clear and unmistakable evidence standard. By using the language for both the lower and higher standards together in the rationale, the examiner did not addresses the correct standard, which is clear and unmistakable evidence for the purpose of demonstrating a worsening of the right knee during service was the result of the natural progression of the disability. VA must obtain another opinion and ensure it addresses the correct standard. The new opinion should address concerns in the April 2021 Post-Remand Brief that prior opinions did not consider whether running, jumping and climbing in service aggravated the Veteran's right knee. As the service records show qualifying service in Southwest Asia, VA should also obtain an opinion addressing whether the Veteran qualifies for service connection under 38 C.F.R. § 3.317. See December 2019 Appellant's Brief. The opinion should address whether the Veteran's right knee disabilities including arthritis may be considered as a medically unexplained chronic multi symptom illness (MUCMI) under Stewart v. Wilkie, 30 Vet. App. 383, 389 (2018) (clarifying that under 38 C.F.R. § 3.317, an illness is a MUCMI where either etiology or pathophysiology of the illness is inconclusive). While the examiners indicated that the Veteran's right knee arthritis began between the Veteran's first and second periods of service, they did not clearly identify an etiology and pathophysiology for his arthritis. The Board REMANDS for the following actions: 1. VA should request that the Veteran identify outstanding records. It should make reasonable attempts to obtain and add the records to the file. 2. After adding relevant records, VA should obtain another medical opinion regarding the Veteran's claim for service connection for a right knee disability. VA should ensure the opinion addresses the following concerns: (a.) The medical professional should opine whether each of the Veteran's right knee disabilities during the period on appeal clearly and unmistakably (undebatably) preexisted the Veteran's military service. If the medical professional finds that a disability did not clearly and unmistakably preexist service, the medical professional must opine whether it at least as likely as not (50 percent or greater probability) first manifested during or was otherwise caused by events during the Veteran's military service. The examiner should provide adequate rationale for the opinion including reference to the pertinent treatment records and the Veteran's statements about his disability. See December 1992 Report of Medical History (noting painful leg lumps and a history of a trick or locked knee in contrast to negative findings on the January 1987 enlistment examination). (b.) In regard to the arthritis of the right knee, the VA examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's arthritis of the right knee manifested within one year of the Veteran's separation from a period of active duty service. 38 C.F.R. § 3.309. The examiner should provide adequate rationale for the opinion including reference to the pertinent treatment records and the Veteran's statements about his disability. See December 1992 Report of Medical History (noting painful leg lumps and a history of a trick or locked knee in contrast to negative findings on the January 1987 enlistment examination). (c.) The medical professional should opine whether each right knee disability was at least as likely as not (50 percent or greater probability) permanently aggravated by events during the Veteran's service or whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. The examiner should provide adequate rationale for the opinion including reference to the pertinent treatment records and the Veteran's statements about his disability. The examiner should provide adequate rationale that considers the Veteran's claim that his knee disability was aggravated by his running, jumping, and climbing while in service. See April 2021 Post-Remand Brief. (d.) The examiner should opine whether the etiology and the pathophysiology of each right knee symptom is partially understood. If either the etiology or pathophysiology is inconclusive, the examiner should state so. These opinions must be based on the Veteran's individual circumstances rather than the illnesses as they are understood in the general public. See 38 C.F.R. § 3.317. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy, 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.