Citation Nr: 21041740 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-42 491 DATE: July 10, 2021 REMANDED Entitlement to service connection for a left knee disorder is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Air Force from March 1985 to July 1990. This issue comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In March 2021, the Board remanded the case for further development, which has not been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a left knee disorder is remanded. The Veteran contends that his left knee disorder is the result of military service. He testified at his Board hearing that he injured his left knee when he struck the pintle hook on the rear of a vehicle while conducting an on-base exercise. See January 2021 Hearing Transcript. He also testified that he has experienced continuous pain since service and had no prior or subsequent injuries to his left knee. A review of the service treatment records (STRs) show documented left knee pain complaints and treatment. However, clinical examination for his left knee was normal on entrance and during service. A review of the post-service treatment records note complaints and treatment for knee pain; however, none of the Veteran's treating physicians have given a positive opinion that his left knee disorder was due to military service. The Veteran underwent a VA knee examination in April 2021. See April 2021 VA Examination. The examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury event, or illness. The examiner noted that the Veteran's STRs show left knee pain in service. In May 2010 the Veteran's left knee x-ray was noted to be normal. Then, in 2016 the Veteran was diagnosed with left knee degenerative arthritis. The examiner opined that "it is not physiologically reasonable that the Veteran could have injured his left knee as he states in 1987 [then] he would have a normal x-ray in 2010 but that the 1987 injury would then cause arthritis in 2016." No other opinions or rationale were provided. The examiner did not address the Veteran's self-reported medical history. The remand instructions specifically directed the examiner to provide an explanation if he or she rejects the Veteran's reports. This was not done. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist includes providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds the opinion is inadequate for adjudicative purposes because it relies on a lack of medical evidence. Lack of evidence cannot be treated as substantive negative evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002). The examiner failed to address or consider the Veteran's lay statements regarding the in-service injury and subsequent symptoms. He is competent to report on knee problems during service through the present date. The remand directed the examiner to specifically address this evidence. Thus, the Board finds that a remand is necessary for an addendum opinion to address all of the pertinent evidence of record, including the Veteran's lay statements. The matters are REMANDED for the following action: 1. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 2. Return the claims file to the examiner who conducted the 2021 VA knee examination and request they prepare an addendum examination report which addresses the following question. The Veteran should only be scheduled for further examination if the examiner determines this is required in order to provide the requested opinions. If the examiner who conducted the 2021 VA knee examination is unavailable, arrange to obtain the addendum opinion from another suitably qualified health care professional. A complete copy of the record must be provided to the examiner, including a copy of this remand. The examiner must consider lay reports of observable symptomatology. After a thorough review of the record, the examiner should respond to the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left knee disorder manifested in 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 rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusion. (Continued on the next page) The examiner must address and reconcile, to the extent possible, the medical opinion with the February 2016, October 2016, and April 2021 VA examination reports. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.