Citation Nr: 22014069 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 15-35 682 DATE: March 11, 2022 REMANDED Entitlement to service connection for a left knee disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from November 1973 to July 1974, and in the United States Army from February 1977 to January 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2015 by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran and his wife testified at a hearing before the undersigned in June 2018. A transcript of that hearing has been associated with the record. This matter was previously before the Board in September 2018, May 2021 and November 2021. Unfortunately, for the reasons below, the Board finds that yet another remand is warranted. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veteran asserts that, while in service, he slipped on ice and fell onto his left knee, which he believes caused him to develop a left knee disorder for which service connection is warranted. He has undergone multiple VA examinations; as the Board has explained in its previous remands, the etiological opinions in the resulting examination reports were each based on a lack of contemporaneous medical records showing an in-service injury, and/or a lack of documentation of post-service treatment for the Veteran's left knee. The Board must reiterate, again, that the sole basis for rejecting lay statements cannot be the fact that there are no corroborating records. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("the Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In its previous remands, the Board made this clear, and stated in its November 2021 remand instructions that the next examiner was not to review or rely on the previous examination reports; despite these instructions, the author of the November 2021 examination report specifically noted that he reviewed such in preparing his own opinion. The Board finds that the opinion authored in November 2021 is inadequate for the purposes of deciding the Veteran's claim. That examiner concluded that it was less likely than not that the Veteran's left knee disorder was due to service. As rationale, he explained that there was no record in service, at separation from service, and in post-service records of any left knee disorder, until the Veteran filed his claim. Thus, the opinion is again based on a lack of medical documentation. Buchanan, supra. Once VA provides an examination in a service connection claim, the examination must be adequate, or VA must notify the Veteran why one will not or cannot be provided. Barr, supra. Here, the Veteran has not yet been afforded an adequate examination, or one which complies with the Board's remand instructions. For these reasons, regrettably, additional remand is warranted. The matter is REMANDED for the following action: Forward the claims file to a clinician for an opinion concerning the nature and etiology of the Veteran's left knee disability. The necessity of an in-person examination is to be determined by the selected examiner. The examiner is asked to identify all current disabilities of the Veteran's left leg, or disabilities that have existed during the appeal period. Then, for each such disability, the examiner should offer an opinion as to whether it is at least as likely as not (that is, a 50 percent or greater probability) that began in, or is otherwise related to, the Veteran's periods of service, to include an in-service fall on ice while serving in Germany. The examiner is on notice that the Board finds the Veteran's report as to his injury in service to be credible. The clinician is advised NOT to review or rely upon previous medical opinions (dated October 2015, July 2021, and November 2021) in preparing his or her own opinion. (Continued on the next page) In offering any opinion, the clinician must consider the complete record, AND DISCUSS the credible lay statements addressing the onset and continuity of relevant symptomatology. A clearly stated rationale for any opinion offered should be provided and MUST NOT be based solely on the lack of any in-service records. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.