Citation Nr: 22017565 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-53 632 DATE: March 25, 2022 REMANDED Entitlement to service connection for a right knee disability is remanded. VETERAN'S CONTENTIONS The Veteran contends that she should be granted service connection for her right knee disability. See April 2016 VA 21-526EZ. The Veteran reported that her right knee problems began during service after an exercise class in 1983. See August 2016 VA Medical Opinion. The Veteran also stated that when she initially was treated for her knee disability, she received an x-ray only due to the limited resources at Fort Ord. See March 2017 Notice of Disagreement. Lastly, the Veteran contends that if she would have received an MRI for her right knee, her meniscus tear would have been diagnosed during service, instead of in 2006. Id. REASONS FOR REMAND The Veteran served on active duty from September 1979 to September 1983. This matter comes before the Board of Veteran's Appeal (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran selected a hearing with a Veterans Law Judge on her October 2017 VA Form 9. However, the Veteran cancelled her hearing in February 2022 via a telephone call. Further, the Board notes that it appears that the Veteran requested a withdrawal of her appeal during the February 2022 telephone call, but this withdrawal request was not on the record at a hearing or in writing from the Veteran or her representative. Therefore, the Board finds that it cannot dismiss the Veteran's claim because the attempted withdrawal does not meet the requirements of 38 C.F.R. § 20.204. As such, the Board will adjudicate the Veteran's claim. Entitlement to service connection for the Veteran's right knee disability is remanded. Here, the Board finds that the Veteran's claim must be remanded for a new VA examination. Specifically, the August 2016 VA examiner opined that it was less likely than not that the Veteran's right knee disability was incurred in or a result of service. In support of this finding, the examiner noted that the Veteran's service treatment records were silent for treatment of this condition. Additionally, the examiner diagnosed the Veteran with a meniscus tear, but no imaging studies were conducted at the examination. However, the Veteran's service treatment records (STRs) demonstrate that the Veteran was treated twice in 1983 for right knee complaints. See STRs dated May 1983 and June 1983. Further, at the Veteran's separation examination, she reported that she was experiencing leg cramps and swollen and painful joints. See July 1983 STR. Moreover, the Veteran reported at the examination that her meniscus tear caused severe degenerative arthritis in right knee, but the examiner failed to conduct the requisite testing to determine whether the Veteran had a current diagnosis of degenerative arthritis, and if so, whether it was related to service. Therefore, the Board finds that the August 2016 VA medical opinion is inadequate because it is based on an accurate factual premise and failed to determine whether the Veteran has degenerative arthritis. As the opinion previously obtained is inadequate, the Board finds that a new VA examination is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of her right knee disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Ask the Veteran to complete and return a VA Form 21-4142 for her medical records from her 2006 orthopedic surgery and any other post-service treatment records for her right knee disability. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. If the records are unavailable, note the unavailability in the claims file and notify the Veteran and her representative. 2. After Item (1) has been completed to the extent possible, schedule the Veteran for an examination with an appropriate VA clinician regarding her claim for service connection for her right knee disability. The Veteran's claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies, including an MRI, should be performed and the results reported in detail. The examiner must address the following: (a.) Identify all current right knee disabilities. (b.) For each diagnosed disability, the examiner should state whether it is at least as likely as not (50 percent probability or more) that the Veteran's diagnosed right knee disability had its clinical onset in, was caused by, or is otherwise related to service. (c.) If the records from the Veteran's 2006 right knee surgery are available, please review and determine whether it is at least as likely as not that the meniscus tear occurred in service. The examiner is reminded that the phrase "at least as likely as not" means that "the favorable and unfavorable evidence is in approximate balance or is nearly equal. For the purpose of providing the opinion requested, please accept as valid the Veteran's statements that she has experienced right knee pain since 1983 and state whether a nexus between the Veteran's right knee disability and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). In offering any opinion, the examiner should consider medical and lay evidence dated both since the filing of the claim. The examiner should provide a complete rationale for any opinion rendered. If the examiner's opinion is negative, he or she must clearly explain why. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.