Citation Nr: 22014074
Decision Date: 03/11/22	Archive Date: 03/11/22

DOCKET NO. 16-54 283
DATE: March 11, 2022

REMANDED

Entitlement to service connection for a bilateral knee disorder is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1978 to July 1985 and from February 1987 to December 1993.

In October 2020 the Board of Veterans' Appeals (Board) issued a decision that denied entitlement to service connection for a bilateral knee disorder.  The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court).  In an October 2021 order, the Court granted a Joint Motion for Remand and vacated the Board's decision.  The matter returns to the Board for further action consistent with the Joint Motion for Remand (JMR).

Entitlement to service connection for a bilateral knee disorder is remanded.

The Board must remand the claim for further development.

The October 2021 JMR cited the reason for remand as follows: "The Board, however, did not explain why it had determined there had been substantial compliance with its September 2019 remand directives and instruction that the examiner consider whether his disorder was due to in-service strenuous activity and the examiner's statement which does not address that but does indicate that the disability is due to 'overuse'. ...  The parties, therefore, agree that remand is warranted for the Board to adequately explain how it determined it substantially complied with the September 2019 Board remand."

The September 2019 Board remand requested new medical opinions via the following directives:

For each right or left knee diagnosis present during the appeal period (since approximately 2014), the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the disorder began in service, was caused by service, or is otherwise related to service.

and:

The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that arthritis had onset within one year of separation from service (December 1993).

Upon review of the December 2019 VA examination, it is clear that the opinion answers the first directive, but it is unclear about the second directive.  In this regard, the Board finds that this opinion is adequate for the first directive.  The VA examiner briefly discusses the Veteran's second theory of entitlement (38 C.F.R. § 3.309), as referenced by overuse.  However, we believe that this opinion does not adequately answer whether arthritis had its onset within a year of separation from service. 

Therefore, the Board must remand this claim in order to clearly and directly answer the second directive. 

The matters are REMANDED for the following action:

Return the claims file to the December 2019 VA examiner, or if unavailable, an examiner of appropriate expertise to provide medical opinion regarding the nature and etiology of the Veteran's bilateral knee disability, to include arthritis.  An examination should only be scheduled if it is determined to be necessary before offering the opinion. The examiner must answer:

(a.) whether it is at least as likely as not (50 percent probability or greater) that arthritis in either knee had onset within one year of separation from service (December 1993).

A complete rationale for any opinion expressed should be provided in a report.

 

 

N. RIPPEL

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jonah Nelson, 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.