Citation Nr: 21031721 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-16 348 DATE: May 24, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2009 to January 2013. The Veteran appeals a May 2014 rating decision by the Agency of Original Jurisdiction (AOJ) denying service connection for a left knee disability. The Veteran's claim was remanded for additional development in September 2019. Unfortunately, for the reasons discussed below, another remand is required. The Board's September 2019 remand directed that an opinion be obtained regarding whether the Veteran's claimed left knee disability was related to service, to include as a result of the cumulative impact of numerous marches and hikes with heavy gear weighing in excess of 100 pounds over a four year period, and reports of pain and swelling of the left knee. The Veteran as afforded a VA knee examination in December 2019. The examiner noted that the Veteran did not have a current knee diagnosis, and that his previously diagnosed left knee strain had healed. The examiner rendered a negative nexus opinion, reasoning that although the Veteran was diagnosed with left knee strain during an April 2014 VA examination, he displayed no knee abnormalities at the present examination. Because the current knee examination was normal, the Veteran's claimed left knee strain was less likely than not related to service. The examiner further noted that the Veteran reported not been seen since he left active duty and had received no treatment for his knee other than working out and running. The basis of the December 2019 VA opinion conflicts with relevant case law regarding the criteria for establishing a current disability. The requirement for service connection that a current disability be present is satisfied when a Veteran has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 322-23 (2007) (a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The record reflects, and the December 2019 VA examiner noted as well, that the Veteran had a diagnosis of left knee strain during the pendency of his appeal. Thus, an opinion addressing the etiology of the Veteran's left knee strain is required, regardless of the present status of the condition. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA and/or private treatment records and associate the same with the claims file. 2. Thereafter, refer the claims file to an appropriately qualified clinician for preparation of a medical opinion. The entire claims file, including a copy of this remand, must be made available to the clinician, and the clinician should confirm that such records were reviewed. No additional examination of the Veteran is necessary, unless the reviewing clinician determines otherwise. The reviewing clinician is asked to opine whether it is at least as likely as not that the Veteran's diagnosed left knee strain had its onset during service or is otherwise related to service. The reviewing clinician should also address whether any other diagnosed knee condition or any functional loss of the left knee during the appeal period at least as likely as not had its onset during service or is otherwise related to service. The reviewing clinician is reminded that the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. In rendering any opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. (Continued on the next page) 3. After completing the above directives, readjudicate the claim. If the benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.