Citation Nr: 22012877 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 15-42 558 DATE: March 7, 2022 REMANDED Entitlement to service connection for left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1972 to July 1974. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The Board then remanded the claim in October 2019 and November 2020 for further development. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for left knee disability is remanded. The Veteran, and his representative, contends that his current left knee disability is related to a Basic Training incident. In this regard, the representative argues that the Veteran's disability stems from in-service injury, described as a grenade incident, in which, a Drill Sergeant "pulled [the Veteran] out of [a] tent and landed on top of him." See Hearing Transcript at 3 (June 2019). For reasons explained below, the Board finds that remand is necessary. Initially, the Board observes that the record reveals that the Veteran's service records, to include service treatment records and military personnel records, are unavailable and are not located at the National Personnel Records Center. Where service records are missing or presumed destroyed, the Board has a heightened duty to assist and explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. The threshold for allowance of a claim, however, is not lowered; and there is no presumption, either in favor of or against the claimant. See Washington v. Nicholson, 19 Vet. App. 362 (2005); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Turning to the evidence of record, VA and private treatment records reveal competent evidence of a current disability or persistent or recurrent symptoms of a disability. See, e.g., CAPRI (September 2020) (revealing complaints for left knee pain). Next, the record reflects competent, credible evidence of in-service injury, described as a Basic Training grenade incident, in which, a Drill Sergeant pulled, and landed, on the Veteran to avoid a grenade explosion. In this regard, the record contains various lay statements, from people close to the Veteran, describing in-service injury. For instance, at the Board hearing, the Veteran's spouse testified that after the grenade incident, the Veteran called his mother and told her that he got hurt in his knee. See Hearing Transcript at 4 (June 2019). The record, in this regard, reveals that the spouse's statements have been consistent throughout the appeal period and are not inconsistent with the other evidence of record. Thus, the Board finds competent, credible evidence of in-service injury, described as a Basic Training grenade incident, in which, a Drill Sergeant pulled, and landed, on the Veteran to avoid a grenade explosion. Given the above, the record reveals sufficient evidence to warrant a VA examination and medical opinion. Here, treatment records and lay statements reflect competent evidence of a current disability or persistent or recurrent symptoms of a disability. The record also reveals competent, credible evidence of in-service injury, as described above. The record therefore indicates competent, credible evidence of current disability, or persistent or recurrent symptoms of a disability, and in-service injury. VA, however, has not obtained a medical opinion or examination in this matter. It is noted that VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Therefore, given the available evidence and the Veteran's statements and sworn testimony, there is competent, credible evidence of a potential relationship between the Veteran's disability and his military service to warrant remand for a VA examination and medical opinion. See McLendon, 20 Vet. App. 79. The Board observes that the evidence needed to trigger VA's duty to furnish a medical opinion or examination is low. Aside from the above explicit findings, in remanding this matter, the Board makes no further 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. The matter is REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs and symptoms for his left knee disability, to include from Piedmont Healthcare. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain all VA treatment records dated from October 2021 to the Present. 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of his left knee disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on examination and review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any left knee disability. NOTE (1): The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (2): A negative medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. NOTE (3): A negative medical opinion may not dismiss the Veteran's competent report of symptoms in service and since without providing an explanation as to why. For example, if the Veteran's reports about his symptoms do not align with how the currently diagnosed disability is known to develop, explain; or if the Veteran's reports are generally inconsistent with medical knowledge or implausible, explain. The clinician must opine on: (a) Whether any left knee disability at least as likely as not (1) had its onset in service or (2) is related to an in-service injury, event, or disease. Consider and expressly address conceded in-service injury, described as a Basic Training grenade incident, in which, a Drill Sergeant pulled, and landed, on the Veteran to avoid a grenade explosion. Explain. (b) If the Veteran is found to have arthritis of the left knee, then opine on whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Consider and expressly address conceded in-service injury, described as a Basic Training grenade incident, in which, a Drill Sergeant pulled, and landed, on the Veteran to avoid a grenade explosion. Explain. 4. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, Associate 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.