Citation Nr: 23005652 Decision Date: 01/30/23 Archive Date: 01/30/23 DOCKET NO. 18-47 176 DATE: January 30, 2023 REMANDED Entitlement to service connection for a right knee disability, to include a temporary total disability for a period of convalescence, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 2002 to October 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA). This matter was last before the Board in July 2019, when it was remanded for further development. The Board also remanded a claim of entitlement to service connection for a right ankle disability and a bilateral foot disability; however, following the Board's remand, these claims were granted in full and are no longer on appeal. See July 8, 2020, Rating Decision. The Veteran seeks entitlement to service connection for a right knee disability. He asserts that he injured his right knee when he stepped in a hole while jogging in service, although the service records do not document this injury. In the alternative, he claims that his right knee disability is the result of wear and tear from road marches and long runs, among other strenuous physical activities while serving in Iraq. The Veteran contends that as he was in a warzone, his injury was treated with Motrin and was not noted in his service treatment records (STRs). Once VA provides an examination, it must be adequate, or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it considers the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). In July 2019, the Board remanded this claim to afford the Veteran a VA examination and obtain a medical opinion. A VA examination in February 2020 resulted in assessments of tricompartmental osteoarthritis (OA) and status-post patellar tendon repair, i.e., surgical procedure, of the right knee. The VA examiner offered a negative etiological opinion, concluding that the Veteran's tricompartmental OA was less likely than not attributable to service, particularly the Veteran's reported history of injury to the knee when he stepped in a hole in service. The examiner relied on a "lack of evidence" in offering their opinion. The examiner did not address the etiology of the status-post patellar tendon repair. The VA examiner's opinion is insufficient to address the claim. First, the examiner failed to address the etiology of the status-post patellar tendon repair, despite the fact that the Veteran reported constant pain around the patellar tendon since the reported in-service injury. Secondly, the examiner did not consider the records of the Veteran's prior treatment in reaching this opinion. Along these lines, it is notable to the Board that the VA clinical evidence of record documents reports of right knee pain and crepitus about two years after the Veteran's discharge and prior to filing his claim for service connection, which the VA examiner did not apparently consider. See, e.g., June 6, 2007, Primary Care Note (reflecting that the right knee exhibited crepitus with mild patellar tenderness). Accordingly, the claim is remanded to obtain a new medical opinion. The matter is REMANDED for the following action: 1. Refer the claims folder to the VA examiner who authored the February 2020 opinion (if available) to obtain an opinion as to the etiology of the Veteran's claimed right knee disability. If this examiner is unavailable, refer the claims folder to another medical professional for the requested opinions. ONLY IF the clinician determines that a VA examination is necessary to answer the questions below should one be scheduled. The clinician is asked to opine on the following: Is any assessed disability of the right knee, to include tricompartmental osteoarthritis (OA) and status-post patellar tendon repair, i.e., the surgical procedure, related to the Veteran's active service, to include his reports of sustaining a right knee injury after falling in a hole while jogging during his deployment to Iraq and/or his reports of wear and tear from road marches and long runs, among other strenuous physical activities while serving in Iraq. The examiner should consider the Veteran's reports of pain around the patellar tendon since the reported in service injury. The examiner should also consider the VA clinical evidence of record which documents reports of right knee pain and crepitus about two years after the Veteran's discharge. In rendering the opinion, the examiner is instructed to accept as true the Veteran's report of sustaining a right knee injury after falling in a hole while jogging during his deployment to Iraq. The examiner should provide a complete rationale for any opinion provided. If the examiner cannot provide an opinion without resorting to speculation, they should expressly indicate this in their opinion and provide a supporting rationale as to why any opinion cannot be made without resorting to speculation. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. Jenna Brant Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.