Citation Nr: 22018043 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 14-14 458 DATE: March 28, 2022 REMANDED Entitlement to service connection for mild degenerative joint disease of the right knee is remanded. Entitlement to service connection for mild degenerative joint disease of the left knee is remanded. REASONS FOR REMAND The Veteran had active service from September 1985 to December 2006. In a final, unappealed April 2010 administrative decision regarding the character of discharge, VA determined that the Veteran is only eligible for VA benefits for his period of active service beginning on September 23, 1985, and ending on February 27, 1994, and that a statutory bar to benefits under 38 U.S.C. § 5303(a) exists for his period of active service beginning on February 28, 1994, and ending on December 4, 2006. In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In November 2018, the Board issued a decision denying the issues on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued a memorandum decision vacating the November 2018 Board decision and remanding the case for further consideration. The Board remanded the case to the agency of original jurisdiction for further development in February 2021 and December 2021. 1. Entitlement to service connection for mild degenerative joint disease of the right knee is remanded. 2. Entitlement to service connection for mild degenerative joint disease of the left knee is remanded. The Board finds that this appeal must unfortunately be remanded again because the opinion obtained pursuant to the December 2021 Board remand is inadequate for decision-making purposes. Specifically, in the December 2021 remand, the Board explained that an April 2021 VA opinion is inadequate because it impermissibly relies solely on a lack of contemporaneous medical treatment records to determine that the Veteran's reports of in-service knee symptoms prior to 1994 are not credible. The Board therefore directed that a new opinion be obtained, and specified that, for purposes of providing the opinion, the examiner must accept as true the Veteran's account of an in-service bilateral knee injury. However, the negative opinion obtained in December 2021 pursuant to the December 2021 Board remand is again based solely on a lack of contemporaneous medical treatment records documenting in-service complaint of or treatment for knee symptoms. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's currently diagnosed mild degenerative joint disease of the bilateral knees is at least as likely as not (50 percent probability or greater) related to his period of active service beginning on September 23, 1985, and ending on February 27, 1994, to include his reported in-service knee injury. The examiner is informed that the Veteran is not eligible for compensation benefits for any disabilities resulting from or relating to his period of active service from February 28, 1994, to December 4, 2006. For purposes of providing the requested opinion, the examiner should accept as true the Veteran's account of an in-service bilateral knee injury, to include his description of that injury at the May 2017 Board hearing. Specifically, he has reported that he hit his knees when the vehicle he was in drove into a ditch or ravine sometime between 1989 and 1992. The Veteran is contending that his current disabilities of the bilateral knees are etiologically related to that injury. The examiner is being asked to comment on whether the Veteran's contentions in that regard align with how the current disabilities are known to develop or whether the Veteran's contentions are generally inconsistent with medical knowledge or implausible. If the Veteran's current mild degenerative joint disease of the bilateral knees is more likely related factors other than the in-service injury, such as age or intervening injury, then the examiner should describe those factors. The examiner must not determine that the Veteran's reports of an in-service knee injury between 1989 and 1992 are not credible solely based on a lack of contemporaneous medical treatment records documenting that injury. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible). Again, the examiner should accept as true the Veteran's account of an in-service bilateral knee injury for purposes of providing the requested opinion. A mere statement that there are no records documenting that injury is not sufficient. The examiner must also consider the December 1998 service treatment note documenting the Veteran's reports of chronic bilateral knee pain for the prior 4 years and of a history of direct trauma to the knees. That treatment note indicates that the Veteran was assessed with moderate retropatellar pain syndrome at that time. The examiner must further consider the Veteran's reports that he was diagnosed with bilateral knee arthritis during his active service. In considering those reports, the examiner should state whether the diagnosis of retropatellar pain syndrome rather than knee arthritis in December 1998 suggests that the Veteran did not have knee arthritis in or before December 1998. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.