Citation Nr: 21040120 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 15-16 351 DATE: July 2, 2021 REMANDED The issue of entitlement to service connection for left knee injury and arthritis is remanded. The issue of entitlement to service connection for right knee, status post-replacement with scarring, claimed as right knee injury, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1983 to August 1985. In October 2018, the Veteran and her spouse testified under oath at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. There is a suggestion, based on statements made at the October 2018 videoconference hearing, that the Veteran may, at some point, have requested copies of her service treatment records. However, it is unclear to the Board whether this constitutes a present request for documents. Accordingly, the Board will not delay development of the Veteran's appeal and will continue with the below remand. If the Veteran would like to request copies of her records, she may do so by submitting such a request. In August 2020, the appeal was remanded for additional development. For the reasons outlined below, the Board finds that remand is again needed in this matter. Entitlement to service connection for left and right knee disabilities. The Board finds that additional development is needed prior to final adjudication. Specifically, the Board finds that new VA opinions are needed to address the etiology of the claimed disabilities on appeal. The Board acknowledges the opinions obtained in April 2021, but finds them to be inadequate for the following reasons. First, the opinions do not adequately address the Veteran's lay contentions. The Veteran has proffered several theories regarding the etiology of her claimed disabilities. For example, at the October 2018 videoconference hearing, she described a lightning strike that knocked her into a van. She also indicated that military duties, including climbing poles, doing PT, pounding on concrete and pavement, contributed to her knee disabilities. In addition, the Veteran provided testimony that she did not seek treatment for periods after service due to the cost. The Board notes that in the August 2020 remand, it specifically asked that an examiner: . . . address all contentions made by the Veteran regarding the etiology of her claimed knee disabilities. That is, in addition to her contentions regarding the lightning strike, the examiner should also address the Veteran's contentions that the problems with her knees started in the "military from running, marching and hiking." See Statement, July 2010. Similarly, in a May 2011 statement, an individual who served with the Veteran noted that her duties included using heavy cable reels, which aggravated her knees The April 2021 opinions do not adequately address the Veteran's claims of onset and continuity of symptoms. Accordingly, a new VA examination is needed. In addition, the Board seeks clarification of the following. The April 2021 VA opinions, for both the right and left knee, indicate that: "The claimed condition, which clearing and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." (Emphasis added). However, the indication that the disabilities pre-dated service, appears to be contradicted by the rationales provided. Both rationales state: "On Enlistment, there is no evidence of a pre-existing knee condition. This worksheet states that the claimed condition clearly and unmistakably existed prior to service and ask [sic] if there was or was not aggravation. The worksheet is an error." First, the Board does not know to which "worksheet" the rationales refer. Second, the Board also does not understand why the opinions conclude that the disabilities "clearly and unmistakably existed prior to service," then provide rationales that there is no evidence of a pre-existing disability at enlistment. Given the ambiguity of the rationales, and that they are seemingly in contradiction to the conclusions reached, the Board finds that new VA opinions are needed. In the August 2020 remand, the Board asked for clarification regarding a "Request for Information," submitted in September 2019, noting treatment "for an injury sustained in service" and "a civilian hospital in Germany." The Board acknowledges a response from the Request for Information, completed December 2019, that states that "no search possible based on information furnished: index of retired records at NPRC does not list the requested: civilian hospital in Germany." The Board asks that the Veteran be informed of the status of this records request upon remand and be provided the opportunity to submit additional records. Further, in the prior remand, the Board noted that the Veteran described a 1984 lightning strike that occurred during a field exercise in Germany. The Board asked that efforts be made corroborate this event. The Board acknowledges that the Veteran was sent a letter in September 2020, requesting that she complete a VA Form 21-4138. It does not appear that the Veteran provided the requested information. As the Board is remanding the matter, it will again afford the Veteran the opportunity to submit the requested information. In addition, the Board asks that the AOJ attempt to confirm the event through internal channels, if possible. Finally, the Board acknowledges that military personnel and service treatment records were added to the claim file, following the February 2019 Board remand. However, some of the records provided are difficult to read. Upon remand, the Board asks that legible copies be uploaded to the electronic docket, if possible. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. In the August 2020 remand, the Board asked for clarification regarding a "Request for Information," submitted in September 2019, noting treatment "for an injury sustained in service" and "a civilian hospital in Germany." The Board acknowledges a response from the Request for Information, completed December 2019, that states that "no search possible based on information furnished: index of retired records at NPRC does not list the requested: civilian hospital in Germany." The Board asks that the Veteran be informed of the status of this records request upon remand and be provided the opportunity to submit additional records. Further, in the prior remand, the Board noted that the Veteran described a 1984 lightning strike that occurred during a field exercise in Germany. The Board asked that efforts be made corroborate this event. The Board acknowledges that the Veteran was sent a letter in September 2020, requesting that she complete a VA Form 21-4138. It does not appear that the Veteran provided the requested information. As the Board is remanding the matter, it will again afford the Veteran the opportunity to submit the requested information. In addition, the Board asks that the AOJ attempt to confirm the event through internal channels, if possible. Finally, the Board acknowledges that military personnel and service treatment records were added to the claim file, following the February 2019 Board remand. However, some of the records provided are difficult to read. Upon remand, the Board asks that legible copies be uploaded to the electronic docket, if possible. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, obtain a VA opinion that addresses the following regarding the Veteran's claimed knee disabilities. If necessary, the Veteran may be scheduled for a new VA examination. An examiner is asked to provide an opinion on the following: (a) Whether it is at least as likely as not that the claimed disabilities clearly and unmistakably pre-existed service. (b) If there is clear and unmistakable evidence that the claimed disabilities preexisted service, then the examiner should address whether there is clear and unmistakable evidence that the claimed disabilities were not permanently aggravated by service. If not, the examiner should then address whether it is at least as likely as not that they were caused by the Veteran's active duty service. The Board notes that a preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 C.F.R. § 3.306 (a). (c) If it is determined that the claimed disabilities did not clearly and unmistakably preexist service, then the examiner should address whether it is at least as likely as not that they were caused by the Veteran's active duty service. In particular, the examiner is asked to address the following: (a) The December 2019 VA opinion regarding the right knee, in which the examiner checked the box next to the statement "The claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." The Board notes that in the accompanying rationale, the examiner wrote that there "there is no evidence that... [the Veteran's] right knee problem was pre-existing." There is a similar discrepancy in a December 2019 VA opinion regarding the left knee. Similarly, the April 2021 VA opinions, for both the right and left knee, indicate that: "The claimed condition, which clearing and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." (Emphasis added). However, the indication that the disabilities pre-dated service, appears to be contradicted by the rationales provided. Both rationales state: "On Enlistment, there is no evidence of a pre-existing knee condition. This worksheet states that the claimed condition clearly and unmistakably existed prior to service and ask [sic] if there was or was not aggravation. The worksheet is an error." First, the Board does not know to which "worksheet" the rationales refer. Second, the Board also does not understand why the opinions conclude that the disabilities "clearly and unmistakably existed prior to service," then provide rationales that there is no evidence of a pre-existing disability at enlistment. The Board asks that an examiner address these seemingly contradictory findings. (b) In addition, the examiner is asked to address the contentions made by the Veteran regarding the etiology of her claimed knee disabilities. At the October 2018 videoconference hearing, the Veteran described a lightning strike that knocked her into a van. She also indicated that military duties, including climbing poles, doing PT, pounding on concrete and pavement, contributed to her knee disabilities. The Veteran contends that the problems with her knees started in the "military from running, marching and hiking." See Statement, July 2010. Similarly, in a May 2011 statement, an individual who served with the Veteran noted that her duties included using heavy cable reels, which aggravated her knees. Further, at the videoconference hearing, the Veteran provided testimony that she did not seek treatment for periods after service due to the cost. In addition, she stated that her doctor said that both of her "knees were bone on bone" and that she had "80-something-year-old knees." The Board asks that these statements be addressed upon remand. (c) The examiner is also asked to address the Veteran's contention in the May 2015 VA Form 9, that she tripped over a suitcase post-service because her knees had become weaker and she could not keep her balance well. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.