Citation Nr: 22005698 Decision Date: 02/02/22 Archive Date: 02/02/22 DOCKET NO. 16-47 199 DATE: February 2, 2022 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Navy from November 1972 to November 1980 and from June 1981 to July 1984. He also served on active duty in the United States Coast Guard from July 1984 to August 1995 and from August 1999 to July 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to service connection for kidney stones, a left knee disability, a right knee disability, bladder cancer, and prostate cancer. This decision was appealed in a notice of disagreement (NOD) received by VA in May 2016. A Statement of the Case (SOC) was issued by VA in July 2016. VA received the appellant's Substantive Appeal (Form 9) in September 2016, perfecting the appeal and requesting a hearing before a member of the Board. The appellant appeared before the undersigned Veterans Law Judge at a video conference hearing in June 2019. A transcript of that hearing has been added to the record on appeal. These issues were remanded by the Board in a November 2019 decision. After additional development was completed, a Supplemental Statement of the Case (SSOC) was issued in October 2020. The issues of entitlement to service connection for kidney stones and for bladder cancer were granted in an April 2020 rating decision. The grant of service connection is considered a full grant of the benefit sought on appeal and those issues have not been returned to the Board for further adjudication. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). The Board denied service connection for the remaining issues in a February 2021 decision. The denial of service connection for the right and left knee disabilities was appealed to the U.S. Court of Appeals for Veterans Claims (Court); the denial of service connection for prostate cancer was not appealed. In September 2021, the appellant's representative and VA filed a Joint Motion for Partial Remand (JMPR) requesting the Court vacate the portion of the Board's February 2021 decision denying service connection for the right and left knee disabilities and remand the issues for further consideration by the Board. In a September 2021 order, the Court granted the JMPR, partially vacated the February 2021 Board decision and remanded these issues for further adjudication. 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. While the Board regrets further delay in the adjudication of these claims, based on the findings in the September 2021 JMPR, the Board concludes that remand is necessary to obtain a new VA medical opinion, as the October 2020 VA medical opinion was found to be inadequate. As a preliminary matter, the Board notes that the September 2021 JMPR also found fault with the Board's findings that the appellant was incredible with regards to his statements that his knee pain began in 1995, noting that a proper foundation for such a finding was not laid. Findings by the Board regarding the appellant's credibility will be re-addressed in any future decisions. The JMPR and the Board's remanding of this issue for further consideration of the appellant's lay statements should not be interpreted as a favorable credibility finding. As stated in the JMPR, the October 2020 VA examination report was inadequate for three reasons. First, the JMPR stated that the examiner did not adequately address the appellant's contentions that his knee disabilities developed after repeatedly striking his knee on hard surfaces while getting into and out of helicopters while in active service. Instead, the examiner only considered whether extended periods in a seated position with the knees bent contributed to the current disability. On remand, all of the appellant's contentions should be addressed. Second, the JMPR noted that the examiner did not address the significance of a February 2011 St. Mary's Medical Center record noting arthritic uptake in the appellant's knees. The JMPR noted that this was inconsistent with the examiner's notation in the diagnosis section of the report which stated that the appellant's arthritis was first diagnosed on October 6, 2020, the date of the examination. On remand, the examiner should address whether the appellant being noted as having arthritic uptake in the knees in February 2011 is relevant to the claim. Finally, the JMPR noted that the examiner relied on a lack of treatment without sufficiently addressing the appellant's reports of knee pain beginning in 1995 and "getting progressively worse over the years." See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). The JMPR lays this out in plainer terms, stating "[i]n other words, the examiner failed to explain why the lack of treatment or documentation is relevant given the Appellant's statement that his knee pain began in 1995." On remand, the examiner should not rely on the lack of an in-service diagnosis of a knee disability or treatment for a knee disability in rendering an opinion. As such, the Board finds that remand is necessary to obtain a new medical opinion which accounts for these deficiencies in the October 2020 VA medical examination and opinion. On remand, the examiner must provide an adequate rationale for any opinion which carefully considers the appellant's lay contentions, and which does not rely on a lack of contemporaneous documentation of an in-service injury. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician. The examiner should be given a copy of this decision. The examiner is asked to provide an answer to the following: Are the current right and left knee disabilities at least as likely as not related to service, including the appellant's reports that he developed knee pain in part due to repeatedly striking his knees against hard surfaces getting into and out of tight helicopter cockpits while in active service. Provide a rationale to support the opinion(s). A rationale in support of this opinion may not be based solely on the lack of in-service or post-service documentation of treatment for any injury or disability. Instead, the examiner should focus on the appellant's reports of repeated injury to the knees and opine as to whether this is consistent with any currently diagnosed disability. The examiner should address the February 2011 private treatment note from St. Mary's medical center which notes the appellant as having signs of arthritis. If the clinician determines that the current right and left knee disabilities are not at least as likely as not related to service, then he or she should also provide an opinion as to whether the current arthritis of the right and left knees (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In providing the requested opinions, the clinician should consider the appellant's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the appellant's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the appellant's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.